Anderson v. Black

• Decision Date: 07 February 1945
• Docket Number: 15032.
• Citation: 33 S.E.2d 298,199 Ga. 59
• Parties: ANDERSON v. BLACK et al.
• Court: Georgia Supreme Court

33 S.E.2d 298

199 Ga. 59

ANDERSON v. BLACK et al.

No. 15032.

Supreme Court of Georgia

February 7, 1945

Rehearing Denied March 7, 1945.

Syllabus by the Court.

Where the plaintiff filed a suit in ejectment in Dawson County for land situated therein, and the defendant interposed a plea of estoppel by judgment incorporating proceedings in a suit in Hall County, which proceedings disclosed a suit for trespass and injunction covering a portion of the same land wherein title to such portion was incidentally involved and disclosed further that the title thereto was both necessarily and actually adjudicated, the court did not err in overruling a demurrer to the plea of estoppel, and there being no conflict of evidence as to the facts set forth in the plea, the court did not err in directing a verdict in favor of the plea.

This is an ejectment suit in fictitious form by Annie M. Anderson, as executrix of M. M. Anderson against Henry Ayers, tenant in possession, and John D. Black, claimant. The suit was filed in Dawson superior court May 21, 1943, to recover a described tract of land in that county.

To this suit the defendants, Black and Ayers, filed a plea of res adjudicata and estoppel by judgment. The plaintiffs' demurrer to this plea was overruled, and upon the introduction of evidence in support of the plea, the court directed a verdict in favor of the plea, and rendered a judgment sustaining the plea and awarding the tract of land to Black. On the order overruling the demurrer, to which exceptions pendente lite were taken, and on the order directing a verdict in favor of the plea, error is assigned in this court.

For a solution of the question here presented, it becomes necessary to outline the issues and results of a previous suit upon which the plea of res adjudicata is predicated.

This prior suit was filed on May 26, 1936, in Hall superior court by M. M. Anderson against C. M. Lyle, alleging that Lyle, a resident of Hall County, was trespassing upon the plaintiff's land in Dawson County and had removed stone from a quarry in the amount of $5426, and praying for judgment and an injunction to prevent further quarrying. Lyle answered and set up that he had no title but was removing stone from the land under a lease contract with John D Black, a resident of Forsyth County. He admitted that he had removed stone of the value of $2,671.90 and had not paid Black therefor; and he prayed that Black be made a party defendant, and that he, Lyle, be permitted to pay the sum into court and be discharged from further liability. On June 13, 1936, Black was made a party defendant, filed an intervention, asserted ownership of the land in question, and alleged that since the institution of the suit Anderson, the plaintiff, had entered upon the land and had become a trespasser. He prayed that the restraining order previously granted against Lyle be vacated, that the injunction be denied, and that judgment be entered directing Lyle to pay to him the $2,671.90 covering the value of stone for which Lyle admitted liability. On June 27, 1936, judgment was entered dissolving the restraining order against Lyle and denying the injunction prayed for against him. Lyle took no further part in the case. No pleading was filed by Anderson seeking a restraining order or injunction against Black.

By an amendment Black prayed that Anderson 'be permanently and perpetually restrained and enjoined from trespassing upon on any of said property, that he be required to submit all issues essential to a proper defense of the claim made by him to this court and that he be restrained and enjoined from bringing any other, or further proceeding with respect to said land in any other court.'

Various amendments, demurrers and exceptions were subsequently filed. The case was submitted to the jury upon the following question: 'Which party, * * * M. M. Anderson, or J. D Black, owned the land in dispute at the time of filing this suit on May 26th, 1936?' 'Answer: J. D. Black.' Upon this verdict the court entered the following decree: 'Considering the issues made by the pleadings, the evidence and stipulations contained in the record, it is now by the court considered, adjudged, and decreed: 1. The plaintiff, M. M. Anderson, is not entitled to have and receive any part of the money for which he sued, nor any part of the money representing the proceeds of rock and sand quarried by C. M. Lyle from the property in dispute. 2. That he is not entitled to have or recover anything from C. M. Lyle or John D. Black. 3. That John D. Black was at the time of the filing of the original suit and now is the owner, in possession of and entitled to the possession of * * * [described land]. 4. That C. M. Lyle has taken no rock or sand outside of the boundary herein described. 5. That M. M. Anderson be and he is hereby restrained and enjoined from interfering with the possession of John D. Black with respect to the property herein described. 6. It is further adjudged that John D. Black do have and recover from the plaintiff M. M. Anderson the sum of $_____ as the cost of this proceeding.'

On the overruling of a motion for new trial the case was brought to this court and the judgment was affirmed. See Anderson v. Black, 191 Ga. 627, 13 S.E.2d 650.

H. Grady Vandiviere, of Canton, and Smith, Smith & Bloodworth, and Victor Lamar Smith, all of Atlanta, for plaintiff in error.

Wheeler, Robinson & Thurmond, of Gainesville, for defendants in error.

ATKINSON, Justice (after stating the foregoing facts).

This case was assigned to the writer to present the opinion of the majority of the court. It does not represent the writer's opinion, as will appear in a dissent attached hereto.

1. A controlling question is whether a judgment based on a suit to recover damages for injury to land located in another county, where title was put in issue and passed upon, is conclusive in a subsequent ejectment action between the same parties in the county where the land in dispute is located. The suit relied upon in the plea of res adjudicata and estoppel by judgment was a proceeding in trespass to recover damages to realty located in Dawson County, and was filed in Hall County, the residence of a defendant against whom substantial equitable relief was sought. Black, who had been made a party defendant, claimed that he was the owner of the land in dispute, and he thus invoked the question of title in the Hall County suit. Anderson, the plaintiff in the suit for damages, demurred on the ground, among others, that the amendment shows on its face that the land was located in Dawson County, that the effect of the 'amendment and the relief prayed for therein was one sounding in equitable ejectment,' and that the venue was in the superior court of Dawson County, and not in the superior court of Hall County. The demurrer was overruled, and Anderson filed exceptions pendente lite. This court, in holding that the trial judge did not err in overruling such demurrer, said [191 Ga. 627, 13 S.E.2d 653]: 'If an action be one for trespass to realty, and not one to recover possession of the land, ownership of the land is only incidentally involved, and the fact that the land may be situated in another county will not deny jurisdiction to determine the main controversy, even though it depends upon the contested ownership of the realty. See Huxford v. Southern Pine Co., 124 Ga. 181(5), 52 S.E. 439, where it was ruled: 'In actions for trespass to realty, ownership of the premises is incidentally involved, and while in such cases a special finding by the jury as to ownership is not required, the incorporation of such a finding (into the verdict) will not vitiate it, if the verdict is in other particulars regular and proper.' In the opinion Justice Cobb further stated: 'If the purpose of the suit were to recover possession of the land, of course the superior court of Coffee county (the land being in another county) would have no jurisdiction. Such was not the object to be attained by the judgment prayed. It was simply to restrain the defendant from doing acts prejudicial to the rights of the plaintiffs, one of whom claimed to be the owner of the land. The title to the property was incidentially and collaterally involved, but it was not such a suit respecting title to land as under the Constitution is required to be brought in the county where the land lies. It was incumbent upon the plaintiffs to show that they had such an interest in the property as a court of equity would protect, and they showed this interest by showing a complete chain of title. While it was not necessary for the jury to specifically find that the property belonged to the plaintiffs, it was necessary that the jury, before they could find in favor of a permanent injunction, should believe that ownership in the plaintiffs was established. The insertion in the verdict of the finding as to ownership would not vitiate the verdict.''

In article 6, section 16, paragraph 2, of the Constitution, Code, § 2-4302, it is declared: 'Cases respecting titles to land shall be tried in the county where the land lies, except where a single tract is divided by a county line, in which case the Superior Court of either county shall have Jurisdiction.' Code, § 3-203, likewise provides: 'All suits respecting the title to land shall be tried in the superior court of the county wherein the land lies.'

Anderson, the plaintiff in error, relies on the above constitutional provision and insists that the judgment rendered in the Hall County case is not conclusive on the question of title now presented in the ejectment suit from Dawson County, where the land lies.

'Under the doctrine of res judicata, 'a judgment of a court of competent jurisdiction shall be conclusive between the...