20 Ga. App. 133 | Ga. Ct. App. | 1917
This case comes to this court on an assignment of error to a judgment sustaining certain grounds of demurrer and dismissing the plaintiff’s petition. The suit is an action against
The defendant demurred to the petition, insisting: (1) that the account now sued upon was adjudicated in the former suit; and “the deed which plaintiff sought to have declared to be legal has been adjudicated and adjudged to have been fraudulently procured, and to have been void because of the want of consideration;” and (3) that the plaintiff could have set up, by proper amendment to the former suit, the account now sued upon, and could have prayed, if the deed was set aside for any cause, that she have judgment against Bandy, the administrator of Elrod, for the services rendered and the supplies furnished. The demurrer was sustained, with special reference to the ground last set forth.
1. If the petition in this ease can be taken to show that in the former suit between the same parties it was adjudicated, or under the scope of the pleadings might have been adjudicated, that
Section 4335 of the Civil Code of 1910 is as follows: “An adjudication of the same subject-matter in issue in a former suit between the same parties, by a court of competent jurisdiction, should be an end of litigation.” Section 4336, which appears to be a codification from a headnote in the case of Watkins v. Lawton, 69 Ga. 671, is as follows: “A judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered.” It is on this latter provision of the code that the defendant bases his main contention, and in his demurrer asserts that when in the former suit Elrod filed the cross-bill attacking the deed,
It may well be that upon the filing by Elrod of his cross-bill for cancellation of the deed, the plaintiff could have abandoned her claim of title thereunder, and have sought by amendment to recover compensation for the services and articles now contended for. Sanford v. Tanner, supra. But even if it were possible to hold that the plaintiff in that suit could have sought to maintain the joint and inconsistent claims now indicated by the defendant, malting proof as to each in that proceeding, still we do not think that even then the provisions of section 4336, supra, could be held to require such a procedure. It is our opinion that the provisions of this section, making a former'judgment conclusive upon the plaintiff as to all matters put in issue, “or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered,” relate to matters which were within the scope and intention of the plaintiff’s pleadings in the former suit. Halliday v. Bank of Stewart County, supra. In the case just cited, as well as in the case of Draper v. Medlock, 133 Ga. 334, 339 (50 S. E. 113, 69 S. E. 483, 3 Ann Cas. 650), the rule announced in Hunter v. Davis, supra, and Bradley v. Briggs, supra, to the effect that “a judgment is not a technical estoppel as to any matter, if the matter is not such that it had, of necessity, to be determined by the court or jury, before the court could give judgment,” is quoted approv
In our opinion it was error to dismiss the petition on the demurrer.
Judgment reversed. Broyles, P. J., and Bloodworth, J., concur.