22 S.E.2d 405 | Ga. | 1942
1. The motion, the refusal to grant which is assigned as error, must, in the absence of a demurrer, be treated as one to set aside a judgment and to arrest the same.
2. Treated technically as a motion to set aside the judgment, it was insufficient in so far as it was predicated upon facts which did not appear on the face of the record. Ayer v. James,
3. In so far as the motion was one in arrest, it had, in the respect just pointed out, the same infirmity. Code, § 110-703.
4. The pleadings in the suit in which was rendered the judgment the movant sought to set aside were on their face not so defective as to make available the remedies provided for in the Code. §§ 110-702, 110-704. Paragraphs 14 and 15 of the petition in the suit last referred to did not on their face show that the issue therein raised had theretofore on the merits been adjudicated adversely to the contention of the plaintiff therein.
5. The paper in question can not be treated as a motion for new trial, because it was not accompanied by a brief of evidence. Firemen's Insurance Co. v. Oliver,
6. Nor does it contain sufficient allegations to have it treated as a petition in equity, brought under the Code, § 110-710, to set aside the decree for fraud, accident, or mistake, or the acts of the adverse party unmixed with negligence or fault of the complainant. McCall v. Miller,
"14. Plaintiff shows that the defendant, Georgia Mae Stowers, has heretofore filed a dispossessory warrant against her in the civil court of Fulton County, to oust her from her said property, number of said action being 7280; thereafter plaintiff filed her suit in Fulton superior court to restrain said action filed in said civil court as aforesaid, and the same being numbered 125275, which action was dismissed without being adjudicated on its merits, and was dismissed by order of the court because the same was not amended as directed by the court; thereafter plaintiff by the same attorneys filed another action in this court, which action was and is a repetition of the first action numbered as aforesaid, each action asking that the action in said civil court be restrained and enjoined; said second action is numbered 132307, which action was also dismissed by the court on plea of res adjudicata filed by counsel for the defendant, Georgia Mae Stowers, to which ruling by the court dismissing said second suit counsel of record therein excepted and by bill of exceptions carried said second action to the Supreme Court of Georgia, and the same has now been dismissed by said Supreme Court; and plaintiff alleges that the merits of the questions alleged herein as to plaintiff's right in and to said property described hereinbefore has never been adjudicated; and unless this court will take cognizance hereof, plaintiff will lose her property and suffer an unrecoverable loss.
"15. Plaintiff shows that the two actions heretofore filed in this court and numbered as aforesaid, involving her said property, have never been adjudicated as aforesaid; the costs therein have not been paid, and because of her poverty she says that she has been advised and believes that she has a good cause for recommencing her action to have said deed produced and canceled as herein related."
On a hearing of the motion evidence was introduced, and the judge denied it. Georgia Mae Stowers excepted. *638
The pleading filed by the plaintiff in error, the refusal to grant which is assigned as error, was denominated by her as a "motion to set aside the verdict and judgment and arrest same." The prayers were: "1. That the verdict and judgment in this case be set aside. 2. Arrest of judgment in said matter." No demurrer was filed. The paper can not be treated as a motion for new trial, because it was not accompanied by a brief of evidence. Firemen's Insurance Co. v.Oliver, supra. Nor does it contain sufficient allegations to have it treated as a petition in equity brought under the Code, § 110-710, to set aside the decree for fraud, accident, or mistake, or the acts of the adverse party unmixed with negligence or fault of the complaintants. McCall v. Miller,
A cause of action defectively set forth is a defect cured by verdict. Augusta Summerville Railroad Co. v. Renz,
It is contended that the motion to set aside and the motion in arrest here involved should be sustained because of what appears in paragraphs 14 and 15 of the petition on which the decree was rendered. The contents of those paragraphs are set forth above. If in any view of the matter those allegations can not be said to negative the cause of action the plaintiff elsewhere set out, the motion should be denied. The rule that pleadings are to be construed most strongly against the pleader is applicable before judgment, and can not be properly invoked when a petition is being examined in order to determine whether a motion in arrest should prevail. The two paragraphs above referred to show that there were two prior suits between the parties, concerning the same subject-matter, both of which were decided adversely to the defendant in error. This alone would not preclude her right to pursue the third time the same remedy on the same cause of action against the same party. In order for a prior adverse judgment to serve as an estoppel, it must have been an adjudication on the merits. Sumner v. Sumner,
Judgment affirmed. All the Justices concur, except Reid, C.J., and Duckworth, J., who dissent.