55 S.E.2d 835 | Ga. Ct. App. | 1949
Lead Opinion
1. The motions of the defendants in error are denied.
2. (a) Under the doctrine of res judicata a judgment by a court of competent jurisdiction in a former litigation between the same parties based upon the same cause of action as a pending litigation binds the parties or their privies to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation.
(b) The doctrine of estoppel by judgment is somewhat different from the doctrine of res judicata and has reference to previous litigation between the same parties based upon a different cause of action, and there is an estoppel by judgment only as to such matters which were within the scope of the previous pleadings and were necessarily adjudicated in order for the previous judgment to be rendered, or as to such matters as are shown to have been actually litigated and determined.
(c) An estoppel as to Harvey, the plaintiff in error in the present proceeding to review a money rule, was created on the controlling issues by the judgment in the garnishment proceeding, and at the time of the trial of the present case in the lower court he was concluded from insisting upon any right or claim to the money superior to the garnishees, who with another, whose claim is based upon their claim, were parties in the present case in the lower court, and are defendants in error in this court.
3. Money may be taken in execution, if in the possession of the defendant, or identifiable as his money.
4. Money rules are in the nature of equitable proceedings, and the rights of the respective claimants may be determined according to equitable principles.
5. Under the facts of this case as disclosed by the record and the principles of law applicable thereto, the lessors, the plaintiffs in the distress-warrant proceeding, were entitled to the fund in question, and the trial judge did not err in so holding, irrespective of the reason assigned in his judgment.
1. The above mentioned motions of the defendants in error are without merit and are denied.
2. "A judgment of a court of competent jurisdiction shall be 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, until such judgment shall be reversed or set aside." Code, § 110-501. "A fact which has been directly tried, and decided by a court of competent jurisdiction, cannot be contested again between the same parties or their privies in the same or any other court. A judgment of a court of law, or a decree in chancery, is an estoppel to the parties thereto and their privies, if it relates to the same subject-matter, and decides the question now in issue." Evans v. Birge,
3. Moreover, in an early Georgia case, Rogers v. Bullen'sadministratrix, R. M. Charlton 196, it was held that money may be taken in execution. The plaintiff in error concedes before this court that money may be levied upon, if in possession of the defendant, or identifiable as his money, and in the form of specie or coin. In other jurisdictions "The rule is well established that money, whether in specie or bank notes, which are treated civiliter as money, if in the possession of the defendant, or capable of being identified as his property, may be taken in execution." 33 C. J. S., Executions, § 24. Also, see 21 Am. Jur., Executions, § 397. Although it is true that a chose in action is immune from levy, unless made subject to levy by statute (Code, § 39-113), and although it may be true that United States paper currency possesses attributes, or is evidence, of a chose in action, still paper currency is legal tender. This is a matter of common knowledge and may be verified by an inspection of the same. Also, see
4, 5. Furthermore, "It is well settled that money rules are in the nature of equitable proceedings, and that the rights of the respective claimants should be determined according to equitable principles. Coleman v. Slade,
Judgment affirmed. Worrill, J., concurs. Felton, J., concursspecially.
Concurrence Opinion
The judgment in the garnishment proceeding, unexpected to, adjudicated that there was a valid levy upon the money. This judgment left the money in the hands of the marshal to be paid out according to law. Assuming that the liens of the respective parties were in the hands of the marshal, on a hearing on the money rule a finding for the plaintiffs in the distress warrant was demanded because the distress warrant was levied July 14, 1948 and the judgment in favor of William V. Harvey was rendered on August 3, 1948.