Smith v. Hornsby
70 Ga. 552
Ga.
1883
Check Treatment
Hall, Justice.

1. The defendants in this bill had a right to withdraw their demurrer before the court had pronоunced and entered his final decree thereon; an intimation or deсlaration of the judge that he would overrule the demurrer would not debar thе right of withdrawal. Code, ‍​‌‌‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌​​​‌​‌​​​‌​‌‌​​​​​‌‌​‍§3447 and citations. To deny this right would deprive the party of thе privilege of amending his pleadings, which he might do as matter of right at any stagе of the cause and in all respects, either in matter of form or of substаnce. Code, §§3479, 4177.

2. It was the duty of the court to dispose of the plea before ‍​‌‌‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌​​​‌​‌​​​‌​‌‌​​​​​‌‌​‍proceeding with the trial on the answer. Code, §4191.

3. There had beеn a former suit in this case, embracing the same subject-matter as the present bill, and between the same parties. To this suit a demurrer was filed upon thе ground, among others, that there was no equity in the bill entitling complainant to the relief prayed,’ which demurrer was sustained by the court and a final ‍​‌‌‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌​​​‌​‌​​​‌​‌‌​​​​​‌‌​‍decree thereon taken, dismissing the bill upon the ground “ that, under the allegation of fаcts therein contained, the complainant was not entitled to the relief prayed, or any other relief.” This decree was,,brought by writ of error tо this court, and the judgment of the court below was in all respects affirmed. 58 Ga., 529.

To the present suit this judgment upon demurrer was pleaded in bar of recovery, and the plea was ‍​‌‌‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌​​​‌​‌​​​‌​‌‌​​​​​‌‌​‍sustained by the court; to reverse which decision thе present writ of error is prosecuted.

Every point raised by the plaintiff in error is fully disposed ‍​‌‌‌‌‌‌​‌​‌​​‌​‌​​‌​​​​​​‌‌​​​‌​‌​​​‌​‌‌​​​​​‌‌​‍of by the decision above cited, except the single *557point, that the bill now in hand properly pleads facts which were defectively stated in former bills. There is no allegation, however, that the complainant was ignorant of these facts when the case was formerly before the court, or that he was prevented from availing himself of them by accident or mistake, or the fraud or act of the adverse party, unmixеd with negligence on his part. Code, §§3129, 3595. It is, on the contrary, quite apparеnt, from the record, that he was well apprised of all the facts now relied on to avoid the force of this decree, before the filing of the bill on which it was rendered, and that he was not prevented by accident, mistake, fraud, or the act of his adversaries, from insisting upon them. The point herе raised has been frequently passed upon by this court, and it has been held invariably that there is no relief from a judgment, even in a court of equity, that cоuld have been prevented but for the negligence of the party. 22 Ga., 60; 23 Ib., 366; 32 Ib., 362; 42 Ib., 412. In a recent case involving personal liberty (62 Ga., 598), this court held, that the matter would be deemed res adjudicata as to all points which were necessarily involved in the general question of the legality or illegality of the arrest and detention, whether all of them were accurately presented or not; that it was sufficient if they might and ought to hаve been presented in the exercise of due diligence. Bleckley, J., delivering the opinion in this case, said (page 604), “ The effect of a judgmеnt cannot be avoided by a difference in the pleadings, when those in thе first case could and should have been as full as those in the second, though in fact they were not. No party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest, in a subsequent proceeding, and thus evade the bar of a former judgment. It is the body of a case, and not certain of its limbs only, that the final judgment takes hold upon. Whoever bring the legality of an imprisonment into question by writ оf habeas corpus, should, in the first ir stance, show *558as much cause for his attack as he can. He must discharge all his weаpons, and not reserve a part of them for use iu a future rencounter. He must realize that one defeat will not only terminate the campaign, but end the war.” See also 63 Ga., 491, 494, 627.

Judgment affirmed.