Dixon v. Dixon

• Decision Date: 13 October 1954
• Docket Number: No. 18728,18728
• Citation: 84 S.E.2d 37,211 Ga. 122
• Parties: W. M. DIXON et al. v. T. A. DIXON.
• Court: Georgia Supreme Court

Page 37

84 S.E.2d 37

211 Ga. 122

W. M. DIXON et al. v. T. A. DIXON.

No. 18728.

Supreme Court of Georgia.

Oct. 13, 1954.

Syllabus by the Court.

Where the merits of plaintiffs' case have been passed upon by a judgment sustaining a general demurrer and dismissing the action, a subsequent suit between the same parties, based on the same cause of action, seeking cancellation of the same deed, is barred under the doctrine of res judicata.

Mrs. Mamie Lou Dixon Townsend and W. M. Dixon filed in Wilkinson Superior Court, against T. A. Dixon, a petition seeking cancellation of a quitclaim deed. A demurrer on general and special grounds was interposed by the defendant. The trial court rendered the following opinion:

'Upon consideration of the defendant's demurrers to the petition, it is ordered: 1. The petition is in one count and is in the alternative, in that the petition alleges, as the basis of the relief sought, that 'The alleged quitclaim deed is either a forgery, or defendant by some means unknown to petitioners has obtained their signatures to same by the use of fraud and deceit.' As against general demurrer the allegations of the petition to the effect that the deed sought to be cancelled is a forgery, are sufficient but as to fraud and deceit, the allegations are insufficient. 'Where any one of several averments alleged in the alternative is insufficient, the entire pleading is rendered bad. In other words, where two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is treated as pleading no more than the latter, because it must be construed most strongly against the pleader. * * * In such case the defect may be reached by a general demurrer; whereas, if both alternatives are good in substance, the petition might be subject to special demurrer for duplicity, but would not be subject to general demurrer. * * *' Doyal v. Russell, 183 Ga. 518, 534, 189 S.E. 32. See also Groover v. Savannah Bank & Trust Co., 186 Ga. 476, 198 S.E. 217; Saliba v. Saliba, 201 Ga. 577(2), 40 S.E.2d 511. 2. 'General allegations of fraud, deceit, and undue influence are insufficient to raise any issue; and they are never sufficiently pleaded except by a statement of the facts upon which they are based. If fraud is relied on to vitiate a transaction, the particular facts constituting the fraud must be alleged.' Jones v. Robinson, 172 Ga. 746(3c), 158 S.E. 752. See also Kilgo v. Castleberry, 38 Ga. 512, 514(3); Tolbert v. Caldeonian Ins. Co. 101 Ga. 741, 746, 28 S.E. 991; Miller v. Butler, 121 Ga. 758(4), 49 S.E. 754; Anderson v. Goodwin, 125 Ga. 663(8), 54 S.E. 679; Field v. Brantley, 139 Ga. 437, 441, 77 S.E. 559; Lathrop v. Miller, 164 Ga. 167, 138 S.E. 50; Hickman v. Cornwell, 145 Ga. 368(4), 89 S.E. 330; Whitfield v. Whitfield, 204 Ga. 64, 48 S.E.2d 852; Robertson v. Panlos, 208 Ga. 116, 65 S.E.2d 400. 3. Accordingly, the defendant's general demurrer is sustained, and the petition is dismissed.'

There was no exception to the above judgment, and so far as appears from the record the petitioners did not offer to amend. However, nine days after rendition of the judgment, the same persons filed a second petition, seeking cancellation of the quitclaim deed against the same defendant, which was similar in all respects except it alleged only as a basis for the relief sought that the quitclaim deed was a forgery. The defendant filed a plea of res judicata, which was demurred to by the petitioners on the ground that the judgment sustaining the defendant's general demurrer and dismissing the first action showed on its face that it was only a technical judgment, and that the court did not pass on the merits of the case. The trial court overruled the demurrer to the plea of res judicata, to which judgment the petitioners excepted.

On the separate trial of the plea of res judicata, the defendant introduced in evidence all of the material parts of the record in the former suit, after which the trial court directed a verdict for the defendant on his plea of res judicata. The petitioners' motion for new trial on the general grounds was denied, and they excepted.

Victor Davidson, Irwinton, Lester F. Watson, Dublin, for plaintiffs in error.

Alex S. Boone, Jr., Irwinton, Nelson & Nelson, Dublin, for defendant in error.

MOBLEY, Justice.

The opinion rendered by the trial court in considering general and special demurrers stated in effect...