176 Ga. 438 | Ga. | 1933
(After stating the foregoing facts.) The action under review was instituted as a suit for contribution, by one partner against another, upon a note which the plaintiff was alleged to have paid off in behalf of a partnership known as the Rome Contracting Company, composed of J. E. Camp, W. B. Loyd, W. H. Mitchell, and Kieffer Lindsay. The partner who paid the debt to the National City Bank did not sue the other defendants named above. The defendant filed a plea denying the indebtedness, and afterward filed the amendments already referred to. The plaintiff excepted pendente lite to the allowance of these amendments and to the overruling of his demurrer. The court submitted to a jury the defendant’s plea in bar. After the record of the former suit had been introduced, the court directed a finding in favor of the plea in abatement, and thereupon dismissed the action.
From the nature of the antecedent rulings, the judgment of dismissal naturally followed as a matter of course; so the first question which arises is whether the court erred in directing the verdict for the defendant on the plea in bar. In the argument of counsel, this plea is variously denominated as a plea of former recovery, plea of res adjudicata, and plea in abatement. As pointed out by Mr. Justice Fish in Draper v. Medlock, 122 Ga. 234 (50 S. E. 113, 69 L. R. A. 483, 2 Ann. Cas. 650), and by Mr. Justice Atkinson in Irvin v. Spratlin, 127 Ga. 240 (55 S. E. 1037, 9 Ann. Cas. 341), there is a well-recognized difference between an estoppel by judgment and a definite plea of res adjudicata. It would perhaps be unnecessary to consider this distinction in the ease at bar, were it not for the diverse argument made by counsel on the different sides of this case. “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.” Civil Code § 4335: “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 case wherein the judgment was rendered.” § 4336.
Learned counsel for the plaintiff does not argue the exceptions to the allowance of the defendant’s amendment to his answer, or the judgment overruling the demurrer thereto, as separate and distinct propositions, though' he relies upon the same principles in dealing with the assignment of error in which it is alleged that the court erred in directing a verdict for the defendant upon the plea in abatement. Learned counsel goes straight to the controlling question in the case, and says, “The defendant, without an order of the court, can not compel the plaintiff to litigate a claim entirely different from that on which he sued,” and his contention is that the issue in the present suit is entirely different and distinct from that involved in the case of Loyd v. Camp, supra. We agree with counsel in the general principle stated. But the real question involved in this case is whether it is a different suit from that involved in the ease cited, or whether it is indeed an effort to revive, if possible, a cause of action which was lawfully included in prior litigation. In establishing the contention that the present action is altogether a different suit, counsel says: “In the former suit the Borne Con
To support the proposition that the matter now before us is different from that involved when the case was here before, the decision in Taylor v. Hardin, 38 Ga. 577, 580, is cited; but it is very plain, as pointed out by the court, that the Hardin case is not in point. As said in that case, “If Hardin was bound by the contract of partnership to furnish timber to be sawed at the mill, and to haul it to the mill, and the lumber from the mill to the railroad, and he borrowed money of his partner, which he used in the purchase of mules, wagons, and other necessary supplies, to enable him to carry out his contract with his partner, this loan was as distinct from the partnership as if he had borrowed the money from a third person.” The plaintiff takes the position that the sixteenth paragraph of the cross-petition in Loyd v. Camp, supra, which calls upon Camp for an itemized statement of all payments in detail, etc., in some way obliterates the prayers contained in the seventeenth paragraph of the cross petition. He says that “Here is no prayer for an accounting.” We can not agree with this contention. The seventeenth paragraph prays that “a full and complete accounting be had between the plaintiff and said firm and between the members of said firm, and that the court ascertain the sum due each of said partners respectively, and by decree provide for the payment of such sums.” We are of the opinion that, in the absence of a timely special demurrer, the seventeenth paragraph constitutes a sufficient prayer for a general accounting. It was not necessary to have the Rome Contracting Company made a party, when the case was here before or at this time, because it is perfectly plain that the Rome
Judgment affirmed.