104 Ga. 619 | Ga. | 1898
Stevens executed to Stembridge five promissory notes, and at the same time delivered a mortgage to secure their payment, on certain real and personal property. Being indebted to the Milledgeville Banking Company, Stembridge indorsed and delivered two of the notes to that company as collateral to secure his indebtedness. Subsequently Stembridge, for the use of the Milledgeville Banking Company, brought suit against Stevens upon these two notes. To this action the defendant filed a plea in bar, alleging that on January 15,1895, plaintiff, for the use of the Milledgeville Banking Company, recovered against the defendant, in the superior court of Baldwin county, a verdict and judgment for $125.00 principal, and $29.30 interest to date of judgment, on an issue joined between the defendant and plaintiff on an illegality filed to the levy of a mortgage fi. fa. in favor of Stembridge, for the use of the Milledgeville Banking Company, the mortgage having been made to secure the payment of the same notes that are sued on in this action; that the defendant, in her affidavit of illegality to the mortgage fi. fa. averred partial payment of the notes secured by the mortgage and tendered the balance due (as she has done in this plea), and the jury, on this issue, after the introduction of evidence and argument of counsel, returned a verdict as above stated; and that on a judgment entered on the verdict, a fi. fa. issued, and defendant tendered plaintiff the amount recovered, but plaintiff refused to accept the same, notwithstanding the verdict and judgment are still subsisting and in force, and therefore conclusive between the parties. On motion of counsel for the plaintiff, the court struck so much of the plea as setup the fact of res adjudicata, on the ground that the plea raised, no issue other than such as the court could pass upon without the aid of a jury, the court holding that the issue made is one of law and not of fact, and that the issues disposed of in a trial under an' affidavit of illegality to the issuance of a
We are of the opinion that the trial judge erred in holding that the issue raised by the plea is one of law and not of fact, and that he was authorized to pass on it without the aid of a jury; and also erred in holding that the issue of partial payment of the debt determined by a judgment fixing the amount due, on the issue made by the affidavit of illegality to the mortgage fi. fa., was not res adjudicata as to the amount due, in a common-law suit brought to recover a judgment on the same debt, in the same court and between the same parties. In the case of Robinson v. Wilkins, 74 Ga. 47, this court ruled: “The issue made by a plea of former recovery should be submitted to the jury, under proper instructions from the court as to the effect of the adjudication pleaded in bar.” In that case it appeared that a former adjudication was pleaded, and the trial judge overruled a motion to strike the plea, but sustained a motion to dismiss the plaintiff’s action on the ground of the former adj udication. This court, in rendering the opinion, held that the motion to strike the plea was properly overruled, but disapproved (though for other causes stated in the opinion it did not reverse) the judgment of the court dismissing the plaintiff’s action, the court saying: “According to our practice, however, the issue made by the plea should have been submitted to the jury, to be passed upon by them under the evidence adduced, and the court should not have ordered the case dis
The remaining question to be determined is, whether the judgment rendered in the case which was made by the levy of the mortgage fi. fa. and the affidavit of illegality filed by Stevens, as set out in the plea, constituted an adjudication of the right of the plaintiff to recover in the present action, and whether the plea was sufficient in form and substance, if supported by the record of the former action, to render the doctrine of res adjudicata or former recovery applicable. Section 5348 of the Civil Code provides that “A judgment of a court of competent jurisdiction is conclusive between parties and privies as to the facts which it decides, until reversed or set aside.” Section 3741 declares that “ An adjudication of the same subject-matter in issue in a former suit between the same parties, by a court of competent jurisdiction, should be an end of litigation.” In his work on Judgments, Mr. Freeman says: “ To make a matter res adjudicata, there must be a concurrence: 1st, of identity of the subject-matter; 2d, of the cause of action; 3d, of persons and parties; 4th, in the quality of the person against whom the claim is made.” Freeman on Judgments, §252; 3 Kansas, 397; 30 La. 861; 2 Bouv. Die. title-Res Adjudicata. Under the rule laid down in Massachusetts, which seems to be both clear and comprehensive, the court will inquire, 1st, whether the subject-matter of the controversy has been brought in question and within the issue in the former proceeding, and has terminated in a regular judgment on the merits; 2d, whether the former suit was between the same parties in the same right or capacity, or their privies claiming under them ; 3d, whether the former judgment was before a court of competent jurisdiction. 1 Gray, 299; 57 Ill. 126; 13 Mich. 75. The Supreme Court of the United States, in considering the effect of a judgment upon a subsequent action involving the
Judgment reversed.