The Southern Reporter Volume 70 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1916 Excerpt: ... when the rents would have paid the debts secured by certain mortgages and a pavement lien. The plaintiff alleges that the defendant has arbitrarily refused to carry out a verbal promise to reconvey the property to him. The suit was met by a plea of res judicata, founded upon a Judgment rendered by the same court in which the present suit was filed, dismissing a former suit between the same parties, on the same cause of action and for the same primary and alternative relief that is demanded in this suit The plea of res judicata was overruled. The defendant reserved a bill of exceptions to the ruling, and then filed a demurrer or an exception of no cause or right of action, which was sustained. The plaintiff has appealed and In answer to the appeal, the defendant prays that the plea of res judicata be sustained, and, in the alternative, that the judgment sustaining the exception of no cause or right of action be affirmed. The exception of no cause or right of action was filed in the first suit on the 10th of February, 1915; and, under date the 24th of that month appears the minute entry: "On motion of counsel for plaintiff, this suit is dismissed at plaintiff's cost." The appellee takes the position that the judgment dismissing the first suit had the effect of maintaining her exception of no cause or right of action, and is a bar to this suit on the same cause of action. The appellant, on the other hand, contends that a judgment sustaining an exception of no cause of action cannot be the basis of a plea of res Judicata. Opinion. 1, 2 There are two distinct classes of exceptions of no cause or right of action in our practice. One is founded upon the omission from the plaintiff's petition of a necessary allegation of fact, which, though not alleged, ...