Opinion
4 Div. 146.
April 16, 1925.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
P. B. Traweek and J. N. Ham, both of Elba, and Fleming Yarbrough, of Enterprise, for appellants.
Res judicata must be specially pleaded, and must show the issue on former trial was broad enough to cover the issue being tried. Chatta. Brew. Co. v. Smith, 3 Ala. App. 565, 58 So. 67; Jordan v. Jordan, 175 Ala. 640, 57 So. 436; Yancey v. Denham, 211 Ala. 138, 99 So. 851; L. N. v. McWilliams, 17 Ala. App. 64, 81 So. 842; Davis v. Morgan, 206 Ala. 576, 91 So. 318; Hall Farley v. Ala. Co., 173 Ala. 398, 56 So. 235; Lange v. Hammer, 157 Ala. 322, 47 So. 724; Pitts v. Howard, 208 Ala. 380, 94 So. 495; Ford v. Ford's Adm'r, 68 Ala. 141. Fraud dehors the record, which results in an erroneous judgment, is ground for cancellation. Edmondson v. Jones, 204 Ala. 133, 85 So. 799; Eskridge v. Brown, 208 Ala. 210, 94 So. 353; Miller v. Thompson, 209 Ala. 469, 96 So. 481.
W. W. Sanders, of Elba, and James J. Mayfield, of Montgomery, for appellees.
The decree of December 10, 1923, was final, and the present suit will not lie. Sims, Ch. Pr. § 568; Cochran v. Miller, 74 Ala. 50; Alexander v. Bates, 127 Ala. 328, 28 So. 415; Ex parte Elyton L. Co., 104 Ala. 88, 15 So. 939; Louisville Mfg. Co. v. Brown, 101 Ala. 273, 13 So. 15; Code 1923, § 5657; Wood v. Wood, 134 Ala. 557, 33 So. 347; Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514.
The bill of complaint shows that Lou A. Cogburn, widow of John A. Cogburn, duly dissented from his will. The effect of this dissent was the same as intestacy, so far as she was concerned (section 10593, Code 1923), and, there being no children, she was entitled to take all the personal property of the decedent (section 7374, Code 1923). It appears, therefore, on the face of the bill, that the respondents, as heirs at law of the widow, and not these complainants, are the owners of the personal property that belonged to the estate of the decedent, John A. Cogburn, regardless of any exemption claim or proceeding. As to such personalty, the bill is clearly without equity.
The former bill of complaint, filed by these complainants against these respondents on April 20, 1923, and referred to in the instant bill, was, in its inception, a bill merely to quiet title. Under such a bill any attempted impeachment of the probate decree allotting the homestead exemption to the widow, on the ground that it was fraudulently procured, or infected with fraud in any way, would have been a mere collateral attack, and therefore unavailable. Interstate B. L. Ass'n v. Stocks, 124 Ala. 109, 27 So. 506; Friedman v. Shamblin, 117 Ala. 454, 23 So. 821; Singo v. McGhee, 160 Ala. 245, 250, 49 So. 290.
But when, upon the filing of the respondents' answer and cross-bill, setting up the exemption decree in question as their muniments of title, the complainants amended their original bill by charging that W. W. Sanders, Esq., fraudulently procured that decree by deception and undue influence practiced upon the homestead commissioners, and through them upon the probate court, this was the institution of a direct attack upon the probate decree, inviting and properly requiring a determination by the court of the issue of fraud thus propounded. This is too clear for controversy.
The record of that case is before us on appeal, and we take judicial notice of the issues therein presented for determination — that decree of the trial court denying relief to the complainants, and adjudicating the title in favor of these respondents by virtue of the validity of the decree allotting the homestead to their ancestor, and the judgment of this court affirming that decree. N.C. St. L. Ry. Co. v. Crosby, 194 Ala. 338 (12), 70 So. 7; Terrell v. Nelson, 199 Ala. 436, 74 So. 929.
It therefore conclusively appears from the bill of complaint that the issue of fraud vel non in the exemption proceedings has been tried and determined, upon proper pleadings in another cause between these identical parties, by a court having jurisdiction thereof. The bill was therefore demurrable as for want of equity, and specifically because it shows on its face that the title claimed by complainants has been adjudicated adversely to them, and in favor of these respondents. Such an estoppel, apparent upon the face of the bill, is not defensive matter which must be pleaded, but is an impeachment of the complainants' own cause of action, and necessarily renders the bill demurrable. Williams v. Williams, 202 Ala. 539, 81 So. 41; 34 Corp. Jur. 1058, § 1494 (2).
With respect to the judicial notice by a court of its own records, we do not wish to be understood as holding that in all cases courts may notice the record of other proceedings therein, even though they be between the same parties and involve the same subject-matter. See 23 Corp. Jur. 113, § 1920. But where a party refers to such other proceeding or judgment in his pleading for any purpose, the court on demurrer by the other party may and should take judicial notice of the entire proceeding in so far as it is relevant to the question of law presented.
We agree with the trial court also in the proposition that, even though the bill of complaint had not been amended so as to charge fraud in the homestead allotment decree, the answer of the respondents in the former proceeding, setting up that decree as their muniment of title, would have imposed upon the complainants the necessity of attacking it for fraud, failing which, they would be concluded thereon in any subsequent action involving the same title. For it is well settled by the authorities that:
"In this form of action [i. e., one to quiet title] all matters affecting the title of the parties to the action may be litigated and determined, and the judgment is final and conclusive, and cuts off all claims or defenses of the losing party going to show title in himself, from whatever source derived, and which existed at the time of the suit, whether pleaded therein or not." 34 Corp. Jur. 959, and cases cited under note 28.
See, also, as to the general principle, Tankersly v. Pettis, 71 Ala. 179; Wood v. Wood, 134 Ala. 557, 33 So. 347.
The decree in the former cause settled all the equities between the parties, and was therefore a final decree on the merits — none the less so because a reference was ordered to ascertain the amount of rents for which the complainants were liable to the respondents under their cross-bill. Cochran v. Miller, 74 Ala. 50, 61; McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917.
Upon the foregoing considerations and authorities, the demurrer to the bill of complaint was properly sustained, and the decree of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
Post, p. 46.