Lankford v. Tanner

52 S.E.2d 315 | Ga. | 1949

1. The plaintiff's petition in this case seeks by injunction to revise or modify the judgment of the trial court for partition of the common property by sale. This judgment was affirmed by this court in Lankford v. Milhollin, 200 Ga. 512 (37 S.E.2d 197); again in Lankford v. Milhollin, 201 Ga. 594 (40 S.E.2d 376); again in Lankford v. Milhollin, 202 Ga. 264 (42 S.E.2d 640); and the last reported affirmance appears in Lankford v. Milhollin, 203 Ga. 496 (47 S.E.2d 73). Obviously, as previously stated by this court, all questions now sought to be raised have either been specifically adjudicated adversely to the plaintiff in error, or could have been raised in the former litigation. "When a case is brought up to this court a second time [in this instance the fifth time involving the same questions], with no new facts to change substantially the view of it taken before, it only remains for this court to reaffirm its first judgment, by affirming generally the judgment of the court attempting to enforce it." Sanderlin v. Sanderlin, 27 Ga. 334; Norton v. Paragon Oil Can Co., 105 Ga. 466 (30 S.E. 437); Lindsey v. Allen, 116 Ga. 810 (43 S.E. 49); Western A. R. Co. v. Third National Bank of Atlanta, 125 Ga. 489 (54 S.E. 621); McEntire v. John Hancock Mutual Life Ins. Co., 174 Ga. 158 (162 S.E. 134).

2. The judgment sustaining the demurrers is correct for the further reason that there was a nonjoinder of parties plaintiff. Neither law nor equity will permit parties having an identical interest to attack separately a judgment equally affecting the rights of each. In a proceeding attacking, or seeking to modify, such judgment, the other interested persons are proper and necessary parties. Henderson v. Napier, 107 Ga. 342 (33 S.E. 433); Pope v. U.S. Fidelity c. Co., 193 Ga. 769-779 (20 S.E.2d 13).

Judgment affirmed. All the Justices concur.

No. 16512. FEBRUARY 16, 1949. REHEARING DENIED MARCH 16, 1949.