
    Emmett Taylor v. R. M. Sledge et al.
    
    
      (Jackson.
    
    April Term, 1903.)
    1. WRIT OS’ ERROR, AND SUPERSEDEAS. Suing out, operates as entrance of appearance.
    Where, after judgment by default is taken, and a writ of inquiry is awarded and executed, the damages ascertained, and final judgment therefor is entered, the defendant sues out a writ of error and supersedeas, he thereby enters his appearance, and the supreme court obtains jurisdiction of his person, and its judgment against him is valid and conclusive of the matters therein adjudged, although the original summons may not have been served, upon him. (Post, pp. 264-268.)
    Cases cited and approved: Palmer v. Malone, 1 Heisk,, 549; Woolridge v. Boyd, 13 Lea, 151; Hurt v. Long, 90 Tenn., 448; Taylor v. Sledge, 108 Tenn., 719.
    3. RES AD JUDICATA. Judgment by default is as conclusive as judgment upon defense.
    A judgment by default is as conclusive against the parties as one rendered in a case where the defendant appears and makes defense, as to all material matters properly pleaded and averred in the declaration. (Post, pp, 268-270).
    Case cited, distinguished and approved: Sale v. Eichberg, 105 Tenn., 333.
    3. SAME. Same. Case in judgment.
    Where a landlord rents a building to a tenant, and during the tenant’s occupancy the floors fall, which the tenant claims was caused by reason of defective construction or want of proper repairs, and the landlord by reason of the tenant’s wrongful overloading the upper floors, and the tenant sues the landlord for damages sustained and recovers a judgment by default, wbicb is thereafter affirmed by the supreme court upon a writ of error, sued out by the landlord, subsequent to which the landlord sues to recover damages from the tenant for the alleged wrongful overloading of the building, the issue in both actions is the cause of the falling of the floors, and therefore the judgment in the first action is res adjudlcata and conclusive against the landlord, and a bar to the maintenance of his suit. (Post, pp. 264-270.)
    Case cited, distinguished and approved: Sale v. Eichberg, 105* Tenn., 333.
    FROM SHELBY.
    Appeal from the Chancery Court of Shelby County. — ■ F. H. Heiskell, Chancellor.
    Smith & Trezevant, for Taylor.
    Caruthers Ewing, for Sledge et al.
   Mr. Justice Shields

delivered the opinion of the Court.

Complainant rented to the defendants a house in Memphis, to be occupied by them as brokers and commission merchants. Some, time after defendants took possession and moved their stock of • merchandise into the bouse, tbe floors of tbe second, third, and fonrtb stories gave way and fell; and a controversy arose between tbe parties as to whether tbe catastrophe was caused by tbe defective construction and want of repairs of tbe bouse, or by tbe wrongful and negligent action of tbe defendants in overloading the upper floor.

Tbe defendants sued tbe complainant, Taylor, in tbe circuit court of Shelby county, to recover the damages sustained by them by the falling of tbe floors; and, no defense being made, judgment by default was taken, and upon writ of inquiry tbe damages of tbe plaintiffs were found to be $1,148.50, for which a final judgment was entered.

Complainant then brought tbe case before this court by writs of error and supersedeas, and assigned as error tbe action of tbe circuit judge in executing tbe writ of inquiry without tbe intervention of a jury — one having been demanded in tbe declaration — ■ which assignment was overruled, and tbe judgment affirmed against him and bis surety upon bis superse-deas bond. This case is reported in 108 Tenn., 719, 69 S. W., 266.

Thereupon this bill was brought, charging that tbe summons in tbe action of Sledge, Wells & Co. against Taylor was not served upon complainant Taylor; that tbe circuit court did not have any jurisdiction of bis person, and that tbe judgment recovered against him was for this reason absolutely void; also that tbe collapse and falling in of tbe floors of the bouse rented defendants was caused by tbe negligence of tbe defendants in overloading tbe upper floor, and that they were liable to complainant for $465.46, tbe cost of repairs — with a prayer that tbe collection of said judgment be enjoined, and that complainant bave a decree against defendants for $465.46, damages alleged to bave been sustained by bim. Other relief was prayed, but need not be noticed here.

Tbe defendants', answering, say that tbe complainant was served with process in tbe original case, but that tbe question is not now an open one, as be entered bis appearance and submitted to tbe jurisdiction of tbe court when be sued out writs of error and supersedeas and bad tbe case reviewed by this court, and that -tbe former case involved tbe same subject-matter as this one, so far as tbe complainant seeks to recover damages for injuries done his bouse; and they plead tbe judgment in that case in bar of this part of tbe relief sought against them. Thus two questions of law are presented, the determination of which must be conclusive in this cause.

1. Did tbe complainant, by suing out tbe writs of error and supersedeas in tbe case of Sledge, Wells & Co. against Taylor, enter bis appearance in that case, and submit to tbe jurisdiction of tbe court? We bold that be did. He bad tbe election of two remedies to correct any error committed against bim. If there was error in tbe face of tbe record, be could bave tbe judgment reversed upon writ of error from this court. If there was no jurisdiction of Ms person, tbe judgment was absolutely void, and be could have had it so decreed, and its collection enjoined, by proper proceedings in the ■chancery court. It was his right and his duty to choose between these two remedies. He could not have both, because a party is entitled to only one trial in court; •the policy of the law being to prevent multiplicity of suits and to put an end to litigation. It is immaterial that the two remedies are not equally broad, as the ■defendant is not bound to adopt the one that is less effectual. A writ of error will not reach all errors that may be committed against a defendant in such cases, because, in the absence of a bill of exceptions, they may not appear in the record. Yet he must, when he elects "to pursue this remedy, take the chances of the soundness of his judgment, and abide the consequences.

We are, therefore, of the opinion that the complainant entered his appearance in the former case when he sued out the writs of error and supersedeas; that this court thereby obtained jurisdiction of his person, and its judgment against him is valid and conclusive of the matters therein adjudged, although the original summons may not have been served upon him. There does not seem to be any reported case of this court deciding this precise question, but there are some involving analogous questions which support this decision, so far as they bear upon this case. Palmer v. Malone, 1 Heisk., 549; Woolridge v. Boyd, 13 Lea, 151; Hurt v. Long, 90 Tenn., 448, 16 S. W., 968. The chancellor also found, and we think correctly, that process in the original case was served upon complainant, and that be was properly before the conrt.

2. The second question to be determined is whether the case of Sledge, Wells & Oo. against Emmett Taylor involved the same subject-matter as this case, so far as complainant seeks to recover damages against the defendants for injuries to his storehouse, and, if so, whether the judgment in the former case is res adjudicates of these matters, and a bar to such relief. There can be no doubt but that the same facts and questions involved in the former case must be the subject of adjudication in this one; but the complainant insists that .the judgment in that case, being by default in the circuit court, is not res adjudicata of any claim and rights he may have, growing out of such matters, and does not bar him from a recovery on account of the same against the defendants. The case of Sale v. Eichberg, 105 Tenn., 333, 59 S. W., 1020, 52 L. R. A., 894, is relied upon to support this contention. A judgment by default is as conclusive against the parties as one rendered in a case where the defendant appears and makes defense of all material matters that are properly pleaded and averred in the declaration.

The rule is clearly stated by an eminent author in these words: “A judgment taken by default is conclusive by way of estoppel in respect to all such matters and'facts as are well pleaded and properly raised, and material to the case made by declaration or other pleadings, and such issues cannot be relitigated in any subsequent action between tbe parties or their privies.” 1 Black on Judg., sec. 87. The facts to be ascertained • and the questions to be determined in the former case and in this are clearly the same. The question in both is, what caused the floors in the storehouse to give way and fall, injuring the stock of goods of the one party, and the building of the other? In the former case Sledge, Wells & Co. averred that it Avas the fault of the construction and want of repair. In this complainant claims that the floors were properly constructed and in good repair, and Avere caused to fall by the negligence of the defendants in overloading them. Necessarily the claims of both parties must be determined in the decision of both suits. We are clearly of the opinion, and so hold, that the judgment in the former case of Sledge, Wells & Co. against Taylor is res adjudicaba and conclusive against the complainant in this action against them in this case. The case of Sale v. Eichberg, supra, is not in conflict Avith our holding that a judgment by default is conclusive of all material questions arising in the pleadings. The judgment which Avas relied upon in that case as res adjudicaba of the complainant’s claim for damages was one by confession required to be made by Eichberg upon his application for a fiat for an injunction enjoining an action at law Avhich Sale had brought against him, and not a judgment by default negligently suffered to be entered. While the general rule upon the subject is discussed in that opinion, it was not intended to hold, and was not held, that the judgment by default is not conclusive of all matters properly pleaded and involved in the pleadings in the case in which the judgment is entered.

The other assignments of error were disposed of orally; The decree of the chancellor will be modified to conform to this opinion.  