Banks v. Employees Loan & Thrift Corp.

• Court: Georgia Court of Appeals
• Writing for the Court: PANNELL; NICHOLS, P. J., and EBERHARDT
• Citation: Banks v. Employees Loan & Thrift Corp., 143 S.E.2d 787, 112 Ga.App. 38 (Ga. App. 1965)
• Decision Date: 24 June 1965
• Docket Number: No. 2,No. 41304,41304,2
• Parties: J. J. BANKS v. EMPLOYEES LOAN & THRIFT CORPORATION

Page 787

143 S.E.2d 787

112 Ga.App. 38

J. J. BANKS v. EMPLOYEES LOAN & THRIFT CORPORATION.

No. 41304.

Court of Appeals of Georgia, Division No. 2.

June 24, 1965.

Rehearing Denied July 6, 1965.

Eva L. Sloan, Milledgeville, for plaintiff in error.

George E. Saliba, Macon, for defendant in error.

Syllabus Opinion by the Court

PANNELL, Judge.

1. An execution issued on the ex parte affidavit of foreclosure of a mortgage on personalty (Code § 67-701) is final process unless halted by a counter affidavit pursuant to Code § 67-801 (Powell v. A. J. Fowler & Son, 34 Ga.App. 186, 129 S.E. 13, Collier v. Blake, 16 Ga.App. 382(1), 85 S.E. 354; Ford v. Fargason, 120 Ga. 606, 48 S.E. 180), but such final process is not a general judgment against the mortgagor (Jackowitz v. Tingle, 98 Ga.App. 463(2), 106 S.E.2d 44), nor does such 'judgmenth adjudicate any issue between the parties.

2. While '[t]he due and unresisted foreclosure of a chattel mortgage, followed by a regular sale of the mortgaged property under the mortgage execution, concludes the mortgagor, as to the property sold, from setting up any defenses * * * which he might have set up by counter affidavit' (Bank of Forsyth v. Gammage, 109 Ga. 220, 34 S.E. 307; Jordan v. American Agricultural Chemical Co., 52 Ga.App. 633, 635, 184 S.E. 455; Cummings v. Attaway, 58 Ga.App. 612, 199 S.E. 592; Clifton v. Dunn, 92 Ga.App. 520, 88 S.E.2d 710), and he may not recover the property from the purchaser at such sale (Hardy v. Luke, 18 Ga.App. 423, 424(2), 89 S.E. 540), it does not necessarily follow that such unopposed execution and sale is conclusive as to the mortgage debt and the right to a personal judgment thereon against the mortgagor.

3. 'Under the doctrine of res adjudicata, whenever there has been a judgment by a court of competent jurisdiction in a former litigation between the same parties, based upon the same cause of action as a pending litigation the litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation. Civil Code 1910, § 4336 [Code of 1933, § 110-501]; Perry v. McLendon, 62 Ga. 598; Hill v. Cox, 151 Ga. 599, 604, 107 S.E. 850; Hollinshead v. Woodard, 128 Ga. 7, 15, 57 S.E. 79; Bostwick v. Perkins, 1 Ga. 136, 139; Loganville Banking Co. v. Forrester, 17 Ga.App. 246, 87 S.E. 694; Fowler v. Davis, 1 Ga.App. 549, 57 S.E. 939. A somewhat different rule applies in regard to the doctrine of estoppel by judgment, since the latter doctrine has reference to previous litigation between the same parties based upon a different cause of action. Worth v. Carmichael, 114 Ga. 699(1), 40 S.E. 797; Draper v. Medlock, 122 Ga. 234, 50 S.E. 113, 69 L.R.A. 483, 2 Ann.Cas. 650. In the latter case, there is an estoppel by judgment only as to such matters as were necessarily or actually adjudicated in the former litigation; that is to say, there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters, within the scope of those pleadings, as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined.' Farmer v. Baird, 35 Ga.App. 208, 132 S.E. 260.

The holder of a mortgage on personal property may sue on the debt or may foreclose the mortgage against the property given to secure debt, either one or both, or may pursue both at the same time. Juchter v. Boehm, Bendheim & Co., 63 Ga. 71; Hopkins v. West Publishing Co., 106 Ga.App. 596(2), 127 S.E.2d 849. 'The two actions [foreclosure of the mortgage and the suit on the debt] are unlike, the causes of action are not the same, and the results are dissimiar. A mortgage on realty is foreclosed by petition and rule, Code § 3962 [See Code § 67-201]; a mortgage on personalty, by affidavit, annexing the same to the mortgage, and filing both in the office of the clerk of the superior court, Id., § 3971. An ordinary action is instituted by petition and process, Ib., §§ 3332 [See Code § 81-101], 3334 [See Code § 81-201], 4918. The cause of action in a foreclosure proceeding is the lien, and the breach of the condition of the mortgage contract; the cause of an ordinary action upon the notes is the promise which they contain and its non-performance. That the debt is the same makes no difference, for the securities are different, and upon each security for...