McMillon v. Hunter

In McMillon v. Hunter, 439 So. 2d 153 (Ala. 1983) the Court declined to give a preclusive effect to a prior dismissal of a third-party claim for failure to comply with the "occurrence test" set forth in Rule 14, Ala.R.Civ.P. Chief Justice Torbert wrote: "The trial court's ruling did not adjudicate the merits. Failure to properly join a party before filing a cross -claim or to comply with the occurrence test for a third-party complaint is a defect in jurisdiction, and any judgment as a result abates, but does not bar, the action. Professor Moore explains: "'The tenor of Rule 56 indicates that the summary judgment procedure deals with merits; and that if granted in favor of a claimant it affirmatively adjudges the merits of the claim and if in favor of the defendant the judgment is in bar and not abatement. "'.... "'Matter in abatement ... only results in a dismissal of the action without prejudice; or, if the action is not then dismissed, temporarily stays the prosecution thereof or results in a transfer to another forum. The following illustrate matter in abatement: lack of jurisdiction over the subject matter; lack of jurisdiction over the person; improper venue; insufficiency of process; insufficiency of service of process; failure to join an indispensable party; incapacity of a party to sue; prematurity in bringing an action. A dismissal on any one or more of these defenses does not bar a subsequent action in a court of competent jurisdiction.' "6 J. Moore, W. Taggart and J. Wicker, Moore's Federal Practice P 56.03 (2d ed. 1976)." (McMillon, 439 So. 2d at 154.)