Coile v. Finance Co. of America

Decision Date10 March 1966
Docket Number23378,Nos. 23377,s. 23377
Citation148 S.E.2d 328,221 Ga. 863
PartiesJ. Obie COILE v. FINANCE COMPANY OF AMERICA. FINANCE COMPANY OF AMERICA v. J. Obie COILE.
CourtGeorgia Supreme Court

Syllabus by the Court

A decision on demurrer upon the merits of the cause is conclusive as to all matters put in issue, or which under the rules of law might have been put in issue in the case wherein the decision was made.

L. D. Skaggs, Athens, for appellant.

Sell & Comer, John D. Comer, Macon, for appellee.

COOK, Justice.

J. Obie Coile brought an equitable action against the Finance Company of America, seeking the cancellation of a note and deed to secure debt and the enjoining of a foreclosure of property under the deed. The defendant filed a plea of res judicata, asserting that a prior judgment in a case between the same parties on the same cause of action terminated by the dismissal of the petition on general demurrer, which judgment of dismissal was affirmed by this court (Coile v. Finance Co. of America, 221 Ga. 584, 146 S.E.2d 304), and that the judgment on demurrer was a full and final adjudication of the cause of action now sued on and conclusive between the parties as to all matters put in issue or which under the rules of law might have been put in issue in the previous litigation.

The trial judge denied the plea of res judicata, and after hearing evidence, denied an interlocutory injunction. The appeal is from the order denying injunctive relief. By cross appeal the defendant appealed from the order denying its plea of res judicata. In an amended notice of appeal the petitioner appealed from an order sustaining the defendant's demurrers and dismissing the petition as amended.

We consider first the ruling denying the plea of res judicata. The parties to the two actions are the same, and the note and security deed sought to be canceled are the same. In the former action the petition alleged that the note had been altered, and that the contract had been entered into by the petitioner because of fraud, accident, or mistake. It was further alleged that the original note was made for a period of time exceeding the maximum limitation of two years for which a loan could be made under the Industrial Loan Act (Ga.L.1955, pp. 431, 440, Code Ann. § 25-315), and that the note was null and void under the provisions of Ga.L.1955, pp. 431, 444 (Code Ann. § 25-9903). (This Act was amended by Ga.L.1964, p. 288, which was subsequent to the date of the note.)

This court in Coile v. Finance Co. of America, 221 Ga. 584, 146 S.E.2d 304, supra, held: 'The failure of the appellant to allege either payment or a tender of the balance due on the debt secured by the deed was fatal to his equitable petition to enjoin the sale of the property in the deed to secure the debt and it was not error to sustain the demurrers to the petition.'

In the present case the petitioner alleged that the note which was secured by the deed to secure debt, together with a former note which he had executed with his son, exceeded the loan limitation of $2,500 under the Industrial Loan Act (Ga.L.1955, pp. 431, 440, Code Ann. § 25-315), and that the note which is secured by the deed to secure debt is null and void.

The ruling on demurrer in the former case was a ruling on the merits, and it is the law of the case. The question here presented is not whether a judgment on demurrer dismissing a petition solely because of a failure to offer...

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3 cases
  • Madison, Ltd. v. Price
    • United States
    • Georgia Court of Appeals
    • July 28, 1978
    ...the property was not litigated or decided, it could have been put in issue (see Code Ann. § 110-501). See Coile v. Finance Co. of Am., 221 Ga. 863, 148 S.E.2d 328 (1966); Miami Properties, Inc. v. Fitts, 226 Ga. 300, 175 S.E.2d 22 (1970); Smith v. Bank of Acworth, 111 Ga.App. 112(1), 140 S.......
  • McPherson v. City of Dawson, 23374
    • United States
    • Georgia Supreme Court
    • March 10, 1966
  • Miami Properties, Inc. v. Fitts
    • United States
    • Georgia Supreme Court
    • April 9, 1970
    ...the former petition, although a different provision of the statute is relied on in the second action.' Coile v. Finance Company of America, 221 Ga. 863, p. 865, 148 S.E.2d 328, p. 329. The judgment in the former suit was conclusive as to all matters then put into issue, or which might have ......

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