176 Ga. 574 | Ga. | 1933
(After stating the foregoing facts.) The controlling question in this case is whether the exception which challenges the correctness of the judgment overruling the demurrers to the answers of the defendants is meritorious. The demurrers present several questions. They were overruled after the court had allowed the defendants to amend their answer by pleading a judgment of the court of ordinary, rendered on October S3, 1918, in the following terms: “In re will of J. W. Williams, deceased: The petition of E. D. Williams, John T. Williams, and Mrs. Exa Edgar, as propounders of the alleged last will and testament of J. W. Williams, in which said alleged will they, the petitioners, are named as executors, having been duly filed in this court, and ft appearing that all of the heirs of the said J. W. Williams, deceased, have been duly notified, and the said matter coming on at this time for a hearing; after hearing the testimony of all of the witnesses produced in court, and the said testimony being insufficient to establish and prove the said alleged will as the last will and testament of the said J. W. Williams, it is therefore ordered and adjudged by the court that said alleged will has not been proved to be the last will and testament of said J. W. Williams, deceased; and it is therefore ordered that same be not admitted to record as such, and the petition is hereby denied, and an intestacy is hereby declared in said estate.” When the plaintiffs “offered to introduce evidence to probate the will of John W. Williams, deceased, . . the court ruled that the defendants had the right to proceed first to establish their plea of res adjudicata. Again: “After the defendants had offered evidence
We are of the opinion that the rulings to which we have just referred were predicated upon the opinion of the learned trial judge that the amendment which pleaded the judgment rendered on Octobr 23, 1918, was a sufficient plea of res adjudicata. Such, however, is not the case. As the basis of a plea of res adjudicata, it must be shown that the action to which the plea is interposed is the same as a prior action which has been concluded by a judgment, and by reason of which' the prosecution of a pending action is barred, “The general rule is that where a judgment is relied upon as an estoppel, or as establishing a particular state of facts, of which it was the judicial result, it can be proved only by offering in evidence a complete and duly authenticated copy of the entire proceeding in which the same was rendered; yet, where the only direct object to be subserved is to show the existence and contents of such judgment, a properly authenticated copy of the judgment entry of a court of record, possessing general original jurisdiction, is admissible, without more.” Weaver v. Tuten, 138 Ga. 101 (2) (74 S. E. 835). It
In Farmer v. Baird, 35 Ga. App. 208 (132 S. E. 260), Jenkins, P. J., in a well-considered decision pointing out the distinction to which we have adverted, said: “Under the doctrine of res adjudicata, whenever there has been 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, the litigants are bound 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. Civil Code (1910), § 4336; Perry v. McLendon, 62 Ga. 598; Hill v. Cox, 151 Ga. 599, 604 (107 S. E. 850); Hollinshead v. Woodard, 128 Ga. 7, 15 (57 S. E. 79); Bostwick v. Perkins, 1 Ga. 136, 139; Loganville Banking Co. v. Forrester, 17 Ga. App. 246 (87 S. E. 694); Fowler v. Davis, 1 Ga. App. 549 (57 S. E. 939). A somewhat different rule applies in regard to the doctrine of estoppel by judgment, since the latter doctrine has reference to previous litigation between the same parties based upon a different cause of action. Worth v. Carmichael, 114 Ga. 699 (40 S. E. 797); Draper v. Medlock, 122 Ga. 234 (50 S. E. 113, 69 L. R. A. 483, 2 Ann. Cas. 650). In the latter ease, there is an estoppel by the judgment only as to such matters as were necessarily or actually adjudicated in the former litigation. That is to say, there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters within the scope of those pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined.”
In a proper plea of res adjudicata, not only the judgment rendered must be exhibited, but it must be shown by the pleadings themselves in the prior investigation of a case between the same
Construing the judgment in this ease in the strictness applicable to pleas of res adjudicata, how can a court determine that after the rendition of the judgment submitted as an amendment to the answer, and within the statutory period of six months, a compromise or settlement such as indicated in the petition was not effected, which had the effect of subverting the will of the testator and of permitting living parties to make a will of their own creation for the dead man ? We are of the opinion that court erred in overruling the demurrers and in not striking the answer of the defendants. The defendants, not being required to amend their answer in the re
The next exception rests upon the principle that the court refused to direct a verdict in favor of the plaintiffs, upon the ground and for the reasons appearing in the statement of facts. Of course it has so frequently been ruled as to require no citation of authority that it is never error to refuse to direct a verdict. Next, the plaintiffs asked to be allowed to introduce evidence as against the plea of res adjudicata; and the court ruled that the plaintiffs were not allowed to introduce any evidence except to show that the judgment of the court of ordinary, as pleaded by the defendants, was not in fact rendered. In this the court erred, for at least one reason already stated, that is, that there was no proper plea of res adjudicata. Nor was there any plea in the previous trial to show that the question of devisavit vel non was ever in issue in the proceeding in the ordinary’s court in 1918.