87 Ga. App. 115 | Ga. Ct. App. | 1952
The plea of res judicata will be construed as alleging that the plaintiff and the defendant entered into an agreement whereby the defendant was to give I. 0. Stegall a note for the principal sum of $300 as full settlement of the plaintiff’s claim for damages against the defendant. The court, without a hearing on the evidence, treated the defendant’s allegations in said plea as being true and as being proved and sustained the plea. This was error. The defendant had the burden of proving the allegations of the plea by competent evidence before a finding in his favor on the plea was authorized. The same applies to the plea of discharge in bankruptcy. The defendant alleged in such plea that the claim in the instant case was the same claim as that represented by the note sued on by I. 0. Stegall and that he had scheduled and proved the claim on the note in his bankruptcy proceedings and had been discharged therefrom. The defendant attached a copy of the discharge to the plea but the discharge did not show what claims had been proved and discharged.
The court erred in sustaining the pleas and in dismissing the action.
Judgments reversed.
