City Loan & Banking Co. v. Byers
Alabama Court of Appeals
Appeal from Birmingham C'ity Court. Heard, before Hon. C. O. Nesmith. Assumpsit by City Loan & Banking Company against E. B. Byers. Judgment for defendant and plaintiff appeals.
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Appeal from Birmingham C'ity Court. Heard, before Hon. C. O. Nesmith. Assumpsit by City Loan & Banking Company against E. B. Byers. Judgment for defendant and plaintiff appeals. The case in the inferior court was not pending. — Ex parte Humes, 130 Ala. 201; 14 Cyc. 392. The suits were not the same. — Gil-breath v. Jones, 66 Ala. 132; 23 Cyc. 1165. An action of deceit is not based upon the contract, but upon the tort. — 20 Cyc. 86. The pendency of a prior suit in the same cause of action in a court of competent jurisdiction between the same parties will abate a later suit. The identity of the…
1Opinion of the CourtWalker, P. J.
This case was tried in the court below without a jury. The bill of exceptions shows, that, without objection by either pai;ty, the trial was entered upon and proceeded to its conclusion as if there *585were two issues of fact before the court, the one made by a plea of the general issue to the complaint, and the other by the plaintiff’s general replication to the defendant’s plea in abatement setting up the pendency of another suit by the plaintiff against the defendant, seeking a recovery “for the same subject-matter” as that for which recovery is sought in this snit. The plaintiff introduced…
2Cases cited7 opinions
- Richmond & Danville Railroad v. FarmerSupreme Court of Alabama · 1892
- Highland Avenue & Belt Railroad v. DusenberrySupreme Court of Alabama · 1891
- Hardeman v. WilliamsSupreme Court of Alabama · 1907
- Louisville & Nashville Railroad v. MothershedSupreme Court of Alabama · 1892
- Smith v. CauseySupreme Court of Alabama · 1856
2 more not listed; retrieve them via the Exa API.
3Cited by10 opinions
- Boriss v. EdwardsSupreme Court of Alabama · 1954
- Cartwright v. HughesSupreme Court of Alabama · 1933
- Mazer v. BrownSupreme Court of Alabama · 1953
- W. T. Adams' Machine Co. v. South State Lumber Co.Alabama Court of Appeals · 1911
- Browning v. FiesAlabama Court of Appeals · 1912
5 more not listed; retrieve them via the Exa API.