Sparks & Hutson v. Fort
116 S.E. 227
Ga. Ct. App.
1923
Check Treatment
Jenkins, P. J.

(After stating the foregoing facts.) 1. In our opinion the plea in bar setting up the defense of res judicata is without merit, and should have been stricken on demurrer. “ An adjudication of the same subject-matter in issue in a former suit between the same parties, by a court of comрetent jurisdiction, should be an end of litigation.” Civil Code (1910), § 4335. “If' upon demurrer the court has decided upon the merits of the cause, the judgment may be pleaded in bar of another suit for the same cause.” § 4338. A judgment dismissing a petition on special demurrer cannot, however, оperate as res judicata. Mutual Benefit Life Ins. Co. v. Driskal, 148 Ga. 699 (98 S. E. 265). It is the general rule that, where a demurrer to a petition contains several grounds, some going tо the merits and some special, and the court sustains the demurrer and dismisses the petition, there is no presumption that the ruling is based on the special grounds of the demurrer rather than the general, and the -judgment will be treated as sustaining the entire demurrer upon all the grounds. DeLoach v. Ga. Coast &c. R. Co., 144 Ga. 678 (87 S. E. 889). But, so far as the defense of res judicata as here raised is concerned, ‍​​‌​‌‌​​​‌‌​​‌‌​‌‌‌​‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌​​​‍no matter whether this court could be able to say, as in Driskal v. Mutual Benefit Life Ins. Co., 21 Ga. App. 777 (95 S. E. 268), that the record in the previous adjudication as interpreted by our former decision renders it manifest that the former petition wаs dismissed on the special demurrer pointing out that the description of the sum of money sought to be recovered was too vaguе and in*536definite to support a recovery, or whether we must apply the general rule so as to say that the ruling of the judge in the previous case also adjudicated the grounds of general demurrer then insisted on, to the effect that the petition failed to set forth a cause of action, especially in that it failed to show that “ any particular property was delivered and convertеd,” the result is the same, for under either construction such previous judgment did ‍​​‌​‌‌​​​‌‌​​‌‌​‌‌‌​‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌​​​‍not and could not be held to have passed upon the merits оf the cause with respect to the liability now sought to be established.

The purpose of a suit in trover is to ascertain title and restore possession of particular property unlawfully converted (Campbell v. Trunnell, 67 Ga. 518 (3); Berry v. Jackson, 115 Ga. 196, 41 S. E. 698, 90 Am. St. R. 102; Barfield Music House v. Harris, 20 Ga. App. 42, 47, 92 S. E. 402), and the only legal effect of the previous ruling on the demurrеr, however broadly it may be treated, was to adjudicate that the petition failed to set forth a cause of action in tort аs sought to be declared oh, to wit, a conversion by the defendants of particular property actually belonging to the plаintiffs. The judgment previously rendered on demurrer, therefore, determined nothing save the non-existence of the tort, as actually set forth or as could have been set forth by amendment to that petition. Since no amendment could have been properly addеd joining a claim ex contractu to that ex delicto, and especially .since the case went off on demurrer and no questiоn involving the ex contractu liability of the defendants was actually pleaded and determined, the former judgment on demurrer adjudicated nothing “ as to any debt between the parties.” Livingston v. Marshall, 82 Ga. 281 (5) (11 S. E. 542); Halliday v. Bank of Stewart County, 138 Ga. 639, 647 (58 S. E. 169); Acree v. Bandy, 22 Ga. App. 454 (96 S. E. 329). “Sound sense, as well as the adjudications of the courts, lay down the rule that, the rights of the parties ‍​​‌​‌‌​​​‌‌​​‌‌​‌‌‌​‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌​​​‍must be actually considered and adjudicated before the former adjudication will bar the subsequent suit.” National Bank v. Southern Porcelain Co., 59 Ga. 157, 165; Linder v. Rowland, 122 Ga. 425 (2) (50 S. E. 124); Steed v. Savage, 115 Ga. 97 (41 S. E. 272); Mitchell v. So. Bell Tel. Co., 150 Ga. 46 (102 S. E. 346); case note, 13 A. L. R. 104, 1107. The rule would be different if, as in DeLoach v. Ga. Coast R. Co., supra, “ the second action contained allegations designed to meet the defects in the *537first action, . . аll of which would have been proper to have been alleged ‍​​‌​‌‌​​​‌‌​​‌‌​‌‌‌​‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌​​​‍by way of amendment in the first suit.” See also, in this connection, Dodson v. So. Ry. Co., 137 Ga. 583 (73 S. E. 834); Greene v. Cen. of Ga. Ry. Co., 112 Ga. 859 (38 S. E. 360); Satterfield v. Spier, 114 Ga. 127 (3) (39 S. E. 930); Hoffman v. Summerford, 28 Ga. App. 247 (111 S. E. 68).

2. “When a person has two or more conflicting and inconsistent remedies for the same wrong, his election and actual prosecution of the one to a favorable or an adverse decision is a bar to the others.” Stokes v. Wright, 20 Ga. App. 325 (2) (93 S. E. 27). It would seem also that a choice оf remedies may sometimes and under some circumstances be effected by the mere institution of the suit. Board of Education v. Day, 128 Ga. 156, 162 (57 S. E. 359), et seq. Thus, had the transaction аs set forth by the plaintiffs in their former proceeding partaken of the nature both of a tort and of a breach of contraсt, such as would have authorized them to waive the contract and rely (as they sought to do) solely upon ‍​​‌​‌‌​​​‌‌​​‌‌​‌‌‌​‌‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌​​‌​‌​​​‍the tort, they could not thereafter be permitted to pursue the other and inconsistent remedy now invoked. But in order for there to be an election, there must еxist the right and power to choose, and where there has been no choice there has been no election (Rowland Co. v. Kell Co., 27 Ga. App. 107, 107 S. E. 602); for, “ though thе election of one of two inconsistent remedies may be treated as a waiver of any rights under the other, a person who рrosecutes an action based upon a remedial right which he supposes he has but in fact does not possess is not thereby рrecluded from asserting his real rights in a subsequent action.” Puett v. Edwards, 17 Ga. App. 645 (88 S. E. 36). If, as defendants by the express terms of their plea in estoppel insist was the сase (but which plaintiffs in their brief seem to dispute), the former judgment on demurrer should be construed under the general rule, so as to mean thаt all the grounds of demurrer were sustained,— that is, not only the special demurrer to the effect that the money sued for was insufficiently desсribed, but the general demurrer to the effect that the petition failed to “ set up a cause of action,” especially in fаiling to show “that any particular property was delivered and converted,”—then we have an actual adjudication, previously obtained by the defendants and now pleaded, and necessarily insisted upon as pleaded, to the effect that the plaintiffs were *538not entitled to the remedy in trover, in that they did not seek the recovery of “ any particular property ” in suing for a “ sum ” of money аlleged to have been turned over by plaintiffs to defendants to be by them “ deposited,” and which was in fact deposited in a designated bank. A ruling to this effect, according to defendants’ own pleadings, has become the law of the case. But irrespective of thе fact that the plea in estoppel expressly sets up such “a final determination ” of the former proceeding by a judgment rendered on “general demurrer,” as we construe the former petition, it would not matter how broad or narrow the scope of the former judgment on demurrer might be adjudged to be, since it appears from the petition in that case that the plaintiffs, under their own allegations (Wolfe v. Ga. Ry. & El. Co., 6 Ga. App. 410, 412, 65 S. E. 62), were not in fact entitled to the remedy then sought, for the reason that no specific property was sued for, but in the language of the demurrer the petition sought merely to recover “ generally $2,500 in lawful money.”

Judgment reversed.

Stephens and Bell, JJ., concur.