Opinion
No. 34849.
February 23, 1942. Suggestion of Error Overruled March 9, 1941.
1. AUTOMOBILES.
The assignee of the conditional seller of a truck had a lien thereon and the right to the possession thereof, subordinate to liens for repairs, if reasonably necessary for the preservation and operation of the truck.
2. JUDGMENT.
In an action by repairmen against the conditional buyer of a truck, a judgment condemning the truck to be sold to pay for the repairs was valid and binding on the buyer but not on the seller's assignee, which was not a party to the action.
3. AUTOMOBILES.
A repairman who intervened in an action by other repairmen against the conditional buyer of a truck which was condemned to be sold to pay for all repairs, and who took an assignment of the plaintiff repairmen's lien and of their interest in the judgment and then purchased the truck at the sale thereunder, thereby acquired the title of the buyer, which was ownership of the truck subject to the lien of the seller's assignee for the balance due on the contract of sale, and the two mechanic's liens of such repairman were not merged into the judgment, but remained in effect as against the seller's assignee, which was entitled to dispossess the repairman of the truck only when it paid him what the buyer owed him for repairs (Code 1930, secs. 2255, 2263).
4. JUDGMENT.
Where repairmen had brought an action against the conditional buyer of a truck and the truck had been condemned to be sold for the repairs, the right of one of the repairmen, who purchased the truck at the sale under the judgment, to retain possession thereof as against the seller's assignee until paid for the repairs would have been a good defense by such repairman to a replevin action by the assignee, and if it was in issue therein, the replevin judgment, pleaded in a subsequent action by the repairman against the assignee to impress a mechanic's lien on the truck, was res judicata both of the repairman's then right to possession of the truck and of his claim to a lien thereon for repairs. (Code 1930, sec. 2255).
5. REPLEVIN.
In a replevin action against a repairman by the assignee of the conditional seller of a truck, a plea of not guilty was the only plea which the repairman was required or entitled to interpose under the statute, and he could have given in evidence thereunder all facts that would have sustained his claim to possession of the truck (Code 1930, sec. 3097).
6. JUDGMENT.
In a replevin action against a repairman by the assignee of the conditional seller of a truck, the repairman's claim to a mechanic's lien on the truck was presented by his plea of not guilty and was an issue, and hence the judgment was res judicata thereof whether he actually introduced evidence in support of it or not (Code 1930, sec. 3097).
APPEAL from the circuit court of Covington county, HON. EDGAR M. LANE, Judge.
Hugh McIntosh, Jr., of Collins, for appellant.
The lower court erred in refusing to enter a verdict for the appellant because the appellee was barred from prosecuting suit and attempting to collect under mechanic's lien statute because his mechanic accounts were duly tried and litigated in a previous replevin action about the same account, same truck and between the same parties and in a court of competent jurisdiction.
Miller v. Bulkley, 85 Miss. 706, 38 So. 99; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Creswell v. Creswell, 164 Miss. 871, 144 So. 41; Fair v. Dickerson, 164 Miss. 432, 144 So. 238; Cotton v. Walker, 164 Miss. 208, 144 So. 45; Von Zondt v. Braxton, 149 Miss. 461, 115 So. 557.
W.U. Corley, of Collins, for appellee.
Only questions presented by the pleadings can be res judicata.
Gladney v. Gladney, 141 Miss. 366, 106 So. 768.
Matters cannot be res judicata to parties not in court.
Jackson v. Richards, 185 Miss. 136, 186 So. 657.
As to matters litigated, or might have been litigated, we submit that matters against parties not in court could not be litigated. Lion Refining Co. v. Crystal Oil Co., 171 Miss. 36, 156 So. 593; Collins v. Schneider et al., 187 Miss. 1, 192 So. 20.
The mere fact that a claim might be propounded in a suit does not make it res judicata, if in fact it was not embraced in it.
Commercial Credit Co. v. Newman, 189 Miss. 477, 198 So. 303.
No judgment is conclusive of any matter not required to support the judgment, and, if the language is general, it will be restrained to issues made in the case and to subject matter under consideration by the court.
Thompson v. Hill, 152 Miss. 390, 119 So. 320.
It is the thing adjudicated, and not the reasons given for the decision, that creates an estoppel in another case.
Railroad Company v. Adams, 77 Miss. 194, 24 So. 200.
This is an action by the appellee under Section 2255, Code of 1930, to impress a mechanic's lien on an automobile truck, in which there was a judgment in his favor. The appellant filed a plea of res judicata and its only complaint in this court is that the court below erred in sustaining a demurrer to this plea.
The record discloses that Myers purchased the truck from Donald Chevrolet Company by a written contract of sale setting forth twelve deferred payments due on the truck evidenced by notes for $41 each and reserving title to the truck until all of these notes were paid and providing that "if purchaser default in complying with the terms hereof, or seller deems the property in danger of misuse or confiscation" the seller may take possession of the truck and resell it for the payment of the balance due him thereon. While Myers was using the truck on highway construction work in Covington County it was repaired for him by the appellee and returned to him without his paying the appellee's charges therefor. Afterwards Myers carried the truck into Lawrence County where he contracted another indebtedness for repairs to it by Allen Sandifer, who instituted an action to recover the same and to impress a lien on the truck for the payment thereof. Myers was the only party defendant to this action. The appellee hearing thereof intervened therein under Section 2263 of the Code. A judgment was rendered against Myers on both of these claims and the truck was directed to be sold for the payment thereof. Allen Sandifer then assigned their interest in this judgment and their lien on the truck to the appellee, who shortly thereafter purchased the truck at its sale under the judgment and removed it to his place of business in Covington County. Myers' notes for his deferred payments on this truck, together with the sales contract under which he purchased it, were assigned by Donald Chevrolet Company to General Motors Acceptance Corporation, which corporation, after the return of the truck to Covington County, instituted an action of replevin against Shoemake therefor, in which a judgment was rendered awarding the Acceptance Corporation the possession of the truck. Afterwards the instant action by Shoemake to impress a lien on the truck was instituted. Shoemake's affidavit makes Myers, the General Motors Acceptance Corporation, and Fagan Chevrolet Company (successors to the rights of Donald Chevrolet Company), defendants thereto. No service of process was had on any of these parties, but the two latter appeared and defended the action. The judgment plead as res judicata to this action by Shoemake is the judgment rendered against him in the replevin action in favor of General Motors Acceptance Corporation. This judgment is res judicata here if, but not unless, Shoemake's right to a lien on the truck because of the repairs made thereto entitled him to retain possession thereof as against the claim of General Acceptance Corporation. General Motors Acceptance Corporation under the assignment to it of the contract by which Myers purchased the truck had a lien thereon and the right to the possession thereof, but subordinate to that of Shoemake for the repairs made by him and by his assignors Allen Sandifer, provided the repairs were "reasonably necessary for its preservation and operation, and to prevent deterioration." Moorhead Motor Co. v. H.D. Walker Auto Co., 133 Miss. 63, 97 So. 486, 487; Broom Son v. S.S. Dale Sons, 109 Miss. 52, 67 So. 659, L.R.A. 1915D, 1146; Wingate v. Mississippi Sec. Co., 152 Miss. 852, 120 So. 175. The Lawrence County judgment condemning the truck for sale for the payment of the repairs thereto was valid and binding on Myers but not on General Motors Acceptance Corporation, it not having been made a party to the action in which the judgment was rendered. The purchase of the truck by Shoemake at its sale under this judgment vested in him the same title thereto possessed by Myers, which was ownership thereof subject to the lien thereon of General Motors Acceptance Corporation for the balance due by Myers on his contract of purchase. These two mechanic's liens of Shoemake were not merged into this judgment as against General Motors Acceptance Corporation but remained in effect and that Corporation was entitled to dispossess Shoemake of the truck when, but not until, it paid him what Myers owed him, if anything, for the repairs to it. This right of Shoemake to retain possession of the truck against General Motors Acceptance Corporation would have been a good defense by him to the replevin action and if it was an issue therein the judgment there rendered is res judicata both of Shoemake's then right to possession of the truck and of his claim to a lien thereon for repairs thereto on which this right of possession was or could have been based. Fair v. Dickerson, 164 Miss. 432, 144 So. 238. Shoemake interposed a plea of not guilty in the replevin action which was the only plea under Section 3097, Code of 1930, he was required or had the right to interpose, and under which all facts that would have sustained his claim to the possession of the truck could have been given in evidence. Bell v. Smith, 155 Miss. 227, 124 So. 331; Munn v. Potter, 111 Miss. 180, 71 So. 315. Shoemake's claim to a mechanic's lien on this truck was therefore presented by this plea and was an issue in the case, consequently the judgment rendered is res judicata thereof whether he actually introduced evidence in support of it or not. 34 C.J. 920. Among this court's numerous cases so holding are Hardy v. O'Pry, 102 Miss. 197, 59 So. 73, and Fair v. Dickerson, supra.
Reversed and remanded.