Buie v. Waters, 18104

• Decision Date: 24 February 1953
• Docket Number: No. 18104,18104
• Citation: 74 S.E.2d 883,209 Ga. 608
• Parties: BUIE et al. v. WATERS et al.
• Court: Georgia Supreme Court

Page 883

74 S.E.2d 883

209 Ga. 608

BUIE et al. v. WATERS et al.

No. 18104.

Supreme Court of Georgia.

Feb. 24, 1953.

Rehearing Denied March 10, 1953.

Syllabus by the Court.

1. The sustaining of a motion to strike the defendant's cross-action, on grounds that did not decide the merits of the cross-action, did not constitute a basis for sustaining a plea of res adjudicata filed in another pending action between the same parties on the same cause of action.

2. It was error to sustain the motion of the defendant Waters to dismiss the plaintiffs' case on the grounds of (a) estoppel, (b) election of remedies, and (c) former recovery.

On July 30, 1949, H. C. Buie and others filed an equitable petition in Bryan Superior Court against T. L. Waters Lumber Company, which as amended sought recovery of $9,261.12 as the value of timber alleged to have been cut by the defendant belonging to the plaintiff, and praying for an injunction against further trespassing. On application of the defendant, Sam L. Brannen, Lloyd A. Brannen, and I. A. Brannen were vouched into court as parties defendant, they having assigned to the original defendant a contract purporting to convey the timber here involved. Thereafter, on application of the plaintiffs to the Ordinary of Candler County, a line was surveyed and marked by processioners between lands belonging to the plaintiffs in Candler County and lands of Sam and Lloyd Brannen; and a report thereof was made, to which a protest was filed by the Brannens. The report of the processioners was upheld by a verdict and judgment in Candler Superior Court on February 7, 1950, to which no exception was taken.

On March 13, 1951, Sam L. Brannen and Lloyd A. Brannen filed in Candler Superior Court a petition against the plaintiff in the Bryan County suit, praying that the judgment in the processioning case be set aside, and also seeking injunctive relief. In answer to this petition, the defendant denied the substantial allegations thereof, and by way of cross-action sought to recover damages by reason of the cutting of the same timber referred to in their petition in the pending Bryan County suit in the same amount, $9,261.12, and alleging other damages. The plaintiffs, the Brannens, moved to strike the answer and cross-action, on the ground among others that stated paragraphs thereof 'contain allegations not permissible in a petition to set aside a verdict and judgment * * * attempting to subject petitioners to a suit involving a matter foreign to the issues involved in said petition.' The judge sustained this motion as to the paragraphs of the answer which sought recovery for the cutting of the timber. The Buies complained of this ruling in a bill of exceptions, which this court dismissed on January 29, 1952, because no error was aggigned on any final judgment. Buie v. Brannen, 208 Ga. 671, 68 S.E.2d 901.

On October 17, 1952, Sam L. Brannen and Lloyd A. Brannen, as vouchees in the suit pending in Bryan County, filed in that court what was denominated a plea of res adjudicata, wherein it was asserted that the judgment of Candler Superior Court of September 17, 1951, 'was a full and final adjudication of the cause of action sued on, as to Sam L. Brannen and Lloyd A. Brannen.' Copies of the pleadings and judgment in the Candler County case were attached as an exhibit to the petition. A motion was filed by the plaintiffs to strike this plea, on the ground that the judgment of Candler Superior Court showed upon its face that it was not rendered upon the issues before the court for determination in the Bryan County suit. This motion was overruled.

The original defendant, T. L. Waters Lumber Company, filed a motion to dismiss the case as to it, by reason of the same judgment rendered in Candler Superior Court. This motion was sustained. On the same day the court entered another order, reciting that the orders overruling the motion of the plaintiff to strike the plea of the defendants Brannen, and sustaining the motion of T. L. Waters Lumber Company 'shall be construed as a full and final determination of this case, and this case is, therefore, dismissed as to all of the defendants.' The plaintiffs excepted, assigning error on the final judgment dismissing the case.

Hugh R. Kimbrough, George H. Lane, Metter, Henry H. Durrence, Claxton, for plaintiffs in error.

J. P. Dukes, W. Roscoff Deal, C. L. Purvis, Pembroke, Ralph U. Bacon, B. H. Ramsey, W. G. Neville, Wm. J. Neville, Statesboro, for defendants in error.

ALMAND, Justice.

1. A former recovery on grounds purely technical, and where the merits were not and could not have been in question, is not a bar to a subsequent action brought so as to avoid the objection fatal to the first. For the former judgment to be a bar, the merits of the case must have been adjudicated. Code, § 110-503. Where the court sustains a general demurrer on a ground that decides the merits of the case, the judgment can be pleaded in bar of another suit for the same cause of action. Code, § 110-504. But where a general demurrer that does not go to the merits of the cause of action is sustained, the judgment will not be res adjudicata in a subsequent suit between the same parties on the same cause of action. Papworth v. City of Fitzgerald, 111 Ga. 54(1), 36 S.E. 311. The grounds of the motion of the Brannens to strike the cross-action of the Buies in the Candler County suit did not challenge the legal sufficiency of the allegations to...