122 Ga. 234 | Ga. | 1905
As “ a judgment rendered in litigation between the same parties is not conclusive in a subsequent suit between them on a different cause of action, except as to issues actually made and determined in the former litigation,” the question arises whether, in the case under consideration, Medlock showed that in the former litigation, upon the result of which he relied to support his plea of “ res adjudicate,” the issue as to his liability to Moore, Marsh & Company upon his indorsements of the two Zachry and Richmond notes now sued on was both made and determined. For him to sustain his defense of estoppel by judgment, it was necessary for him to show not only that this issue was raised in the former litigation but also that it was then determined in his favor. The defenses which he then set up were contradictory and inconsistent. One of them was, that the two notes of Zachry and Richmond, payable to the order of Medlock, upon the indorsements of which he is sued in the present case, had been accepted by Moore, Marsh & Company as-payment, pro tanto, of his indebtedness to them, for which he was entitled to a credit upon the noteá on which they were then suing him, and that he had subsequently paid to them the balance left due thereon in cash. It is obvious that if this defense was found by the jury to be sustained by the evidence, their verdict, finding generally in his favor, and that his three individual notes and the deed which he had given to secure them be surrendered and cancelled and Moore, Marsh & Company be required to execute a deed reconveying the property described in the security deed to him, naturally followed; and it was wholly unnecessary for them to pass upon the merits of his other defenses. It
Another case which is equally in point is Bradley v. Johnson, 49 Ga. 412. In that case the complainant, as the widow and •heir at law of Bradley, filed a bill against the defendant, as the administrator of Bradley, for an accounting and distribution of Bradley’s estate, with a prayer for injunction. On the trial of the case, Johnson, the defendant administrator, introduced in evidence an exemplification from the court of ordinary of the county, from which it appeared that he had made application to that court for letters of administration upon such estate, to which the complainant had entered a caveat, claiming that she, as the widow of Bradley, was entitled to the administration; that the ordinary had granted letters of administration to her; that an appeal had been entered to the superior court; and that the trial in that court resulted in a judgment that the appellant, Johnson, was entitled to administration upon Bradley’s estate, which judgment had been certified to the court of ordinary and made the judgment of that court. The administrator relied upon this evidence as showing that the question whether the complainant was the widow of Bradley had been made in the case in the court of ordinary and there determined against her; and upon such evidence, under the charge of the court, he obtained a verdict and judgment in his favor. This court, in reversing the judgment, held, that the judgment in the court of ordinary “was conclusive as to the fact that letters of administration had been granted to Johnson on Bradley’s estate, when offered in evidence on the trial of the equity cause; but it was not conclusive on that trial upon the point as to whether the complainant was the widow of Bradley;” that it was not an adjudication directly upon that point, and did not purport to decide that question. In the opinion of the court, Chief Justice •Warner, after saying this much, continued as follows: “ Moreover, it does not affirmatively appear from the verdict and judgment thereon that the fact of her being the widow of Bradley was the only question made and decided by the judgment of the court of
A leading case in this country, which has been often approvingly cited and followed, is Russell v. Place, 94 U. S. 606, 608, in which it was held: “ It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive upon that question in another suit, between the same parties. But to this operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, — as, for example, if it appear that several distinct matters may have been litigated upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered,— the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed
Another case directly in point is Greene v. Bank, 73 Miss. 542, where it was held: “Where one has been sued as acceptor of a lost bill of exchange alleged to have been drawn by a certain firm to its own order, and indorsed by the firm and one of the members thereof, and on his pleas of non est factum and payment, and the evidence in support of the same, the defendant has defeated a recovery, he can not, in a second suit against him as acceptor of a lost bill, in all respects similar to the preceding bill, save that it was alleged to have been drawn not by the firm but by said member thereof, maintain a plea of res judicata, since it is impossible to say on which of his pleas the jury found for him in the prior suit, and, if not on that, of payment, the only matter determined was that he did not accept the particular bill then sued on, which would not preclude an action on the bill that he did accept.” Still another is Augir v. Ryan, 63 Minn. 373, where it was held: “ In order that a former judgment should bind parties in a subsequent action, by way of estoppel as to any question of fact, it must appear from the judgment, or by extrin-' sic evidence, that such question was within the issues of the former action and actually litigated and determined therein. If • such judgment and extrinsic evidence leave it a matter of conjecture as to what questions of fact were litigated and determined in the former action, the judgment is not an estoppel.” It appeared in that case, as it does in this, that several defenses had been interposed in the former action, but it did not appear upon what issue the verdict in favor of the defendant was founded. In Hearn v. Boston & Maine Railroad, 67 N. H. 320, it was held: “A town having been sued for damages caused by an obstruction in a highway, and the person who placed the obstruction there
Judgment reversed.