Suit by appellant against appellee, declaring on certain bank checks and on common counts for work and labor done. Defendant interposed pleas of res adjudicata, but plaintiff's demurrer thereto was sustained.
The cause was tried before the court without a jury upon pleas of general issue, payment, and set-off, resulting in a judgment for the plaintiff. Defendant's motion for a new trial was sustained, the trial court evidently being persuaded, as we gather from brief of counsel, that he had committed error in ruling against the pleas of res adjudicata, and this appeal is by the plaintiff to review the action of the court in granting a new trial.
The only question here argued by counsel relates to the ruling on these pleas of res judicata, and plea 5 is selected as more full and complete and the argument confined thereto.
The judgment pleaded in bar to the present action was rendered in a suit by this plaintiff against this defendant and his wife individually, on a joint contract. McKissack v. Witz,120 Ala. 412, 25 So. 21. The plea does not allege, nor do the proceedings incorporated therein show, that the judgment in the former suit was rendered upon the merits of the cause. This is essential. McCall v. Jones, 72 Ala. 368; Terrell v. Nelson,199 Ala. 436, 74 So. 929; Hall Farley v. Ala. T. I. Co.,173 Ala. 398, 56 So. 235; Lange v. Hammer, 157 Ala. 322,47 So. 724.
Where a suit is defeated for nonjoinder or misjoinder of parties, a judgment rendered on that issue alone is not a judgment on the merits. McCall v. Jones, supra; Terrell v. Nelson, supra.
The former suit was confessedly against defendant and his wife on a joint contract, and in such case a failure of the plaintiff to prove a joint liability would preclude a recovery as against either defendant, the variance being fatal. Handley v. Shaffer, 177 Ala. 636, 59 So. 286; Vinegar Bend L. Co. v. Howard et al., 186 Ala. 451, 65 So. 172; Harris v. Sanders,186 Ala. 350, 65 So. 136; Cent. of Ga. Ry. Co. v. Camp Hill Trading Co., 208 Ala. 315, 94 So. 350. Such is the result, notwithstanding the provisions of section 5720, Code of 1923, and of section 5718 of said Code, which permit amendments by striking out or adding new parties and thus obviate any question of discontinuance. Copeland v. Dixie Const. Co. (Ala. Sup.) 113 So. 82;1 Crawford v. Mills, 202 Ala. 62, 79 So. 456; Plunkett v. Dendy, 197 Ala. 262, 72 So. 525. Speaking to a similar question this court, in Handley v. Shaffer, supra, said:
"The complaint avers a joint employment of the plaintiff by defendants Handley and Johnson. In such a case, as repeatedly held by this court, section 2504 of the Code (now section 5720, Code 1923) notwithstanding, proof of employment by only one of them, not participated in by the other, does not authorize a recovery against either of them. The probatum does not support the allegatum, and the variance is fatal to any right of recovery."
The holdings of the court in Harris v. Sanders, Vinegar Bend L. Co. v. Howard et al. and Cent. of Ga. Ry. Co. v. Camp Hill Co., supra, are to like effect. *Page 75
The Ohio statute, construed in Roby v. Rainsberger, 27 Ohio St. 674, cited by counsel for appellee, appears more extensive than section 5718 of our Code, and would authorize a judgment against one defendant in such joint action, without amendment. The decisions above noted demonstrate the construction of our statute to a contrary effect, and as only so authorizing such judgment upon amendment being made as therein provided.
For aught appearing in plea 5, the judgment for defendant in the former suit was rested upon a failure of the plaintiff to establish a joint contract, and therefore was not a judgment upon the merits of the cause. The converse of the proposition was presented in McCall v. Jones, supra, and it was held the former judgment was no bar, the court saying:
"The issue decided, therefore, was one of misjoinder of parties plaintiff, involving their capacity to sue, rather than the nonexistence of a meritorious cause of action in behalf of a proper plaintiff. Although the husband may have had, on the merits of the case, a good cause of action, fully sustained by the evidence; yet the action must, of necessity, have failed, because of the rule that, where several persons sue jointly as plaintiffs, they must show a joint cause of action against the defendant, and all must recover or none can do so."
That authority in principle is decisive of the instant case adversely to the sufficiency of plea 5.
We conclude therefore that the trial court ruled correctly in sustaining the demurrer to the plea of res adjudicata and incorrectly in granting a new trial.
The judgment sustaining the motion for a new trial is reversed and one here rendered denying the same.
Reversed and rendered.
ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur.
1 216 Ala. 257.