The pleading and evidence were directed to the status of the specific account between Redd Bros., Inc., and A. B. Todd, as materialman and builder, respectively, of a house on Todd's lot which he had mortgaged to Gregory, not an ascertainment of the general account between the parties for materials furnished for and used in the construction of buildings by Todd on other lands.
The specific prayer of the bill was to fasten a materialman's lien on said property, describing it; to decree a sale of that property to satisfy the specific indebtedness found to exist; and that said lien for material furnished and used in the construction of said *Page 60 building be adjudged superior to mortgages executed by Todd to Gregory on said lands. There was general prayer. The existence and amount of the special indebtedess alleged to have constituted a lien on the property held by the mortgagor and subject to Gregory's mortgages, and whether there was a statutory lien that may be enforced, were the controverted issues of fact. That Todd admitted in his testimony a general indebtedness to complainant (without stating the amount), growing out of his other building operations and on other lots, would not authorize, in this action, a judgment in personam against Todd, under section 4770 of the Code. Fleming v. McDade, 207 Ala. 650, 93 So. 618. The cases of Bedsole v. Peters, 79 Ala. 133, McGeever v. Harris, 148 Ala. 503,41 So. 930, and Wigfield v. Akridge, 207 Ala. 560, 93 So. 612, were suits at law for the enforcement of a lien of a mechanic or materialman. The jurisdiction of such suits, both at law and in equity, is declared in section 4764; not, however, as to confuse the issues of fact that were litigated and merge the same into a judgment in personam on failure to establish the lien, as is now insisted on rehearing.
It is insisted that the decree of the lower court failed on dismissing the bill to safeguard complainant's right to a due procedure in the proper forum for a judgment in personam against Todd for the amount of his general indebtedness to Redd Bros., Inc., and that he will be precluded by a plea in bar. It may be said here that such suit at law may be had, without subjecting same to a plea of res adjudicata, since the issues of fact are not identical, though between the same parties. Terrell v. Nelson, 199 Ala. 436, 74 So. 929.
The judgment of the lower court was not in error, and the rehearing is denied.
ANDERSON, C. J, and McCLELLAN and SOMERVILLE, JJ., concur.