Draper v. Medlock

• Decision Date: 04 March 1905
• Parties: DRAPER et al. v. MEDLOCK.
• Court: Georgia Supreme Court

50 S.E. 113

122 Ga. 234

DRAPER et al. v. MEDLOCK.

Supreme Court of Georgia

March 4, 1905

Syllabus by the Court.

1. Where a judgment is pleaded as an estoppel, the burden is upon the party relying upon the estoppel to sustain the plea by showing that the particular matter in controversy was necessarily or actually determined in the former litigation and if it appear, from the record introduced in support of the plea, that several issues were involved in such litigation, and the verdict and judgment do not clearly show that this particular issue was then decided, before such plea can be sustained this uncertainty must be removed by extrinsic evidence showing that such matter was then decided in accordance with the contention of the party relying upon the plea.

2. Evidence offered in opposition to such plea which shows that in the former litigation the parties alleged to be estopped by the judgment therein sought to so amend their pleading as to have the question in controversy in the subsequent litigation determined, and that the court disallowed such amendment, is admissible.

Error from Superior Court, Gwinnett County; R. B. Russell, Judge.

Action by William W. Draper and others, executors, against R. O Medlock. Judgment for defendant, and plaintiffs bring error. Reversed.

N. L Hutchins and C. H. Brand, for plaintiffs in error.

T. M. Peeples, N. L. Hutchins, Jr., and Atkinson & Barn, for defendant in error.

FISH P.J.

1. The plea of res adjudicata in the present case is more properly a plea of estoppel by judgment, as the decree relied on in support of the plea was not rendered in a case involving the same cause of action. Medlock's equitable action against Moore, Marsh & Co., in which this decree was rendered, was brought for the purpose of setting up his defenses to the suit which they had instituted against him in the city court of Lawrenceville upon the three promissory notes which he individually had executed to them, and obtaining certain equitable relief, such as the cancellation of a security deed, etc., which he could not obtain in the city court. This action by Medlock was not an independent suit, but was merely in the nature of an equitable answer to the suit against him in the city court. It is evident that the cause of action in the suit brought by Moore, Marsh & Co. against Medlock in the city court, which was tried under his equitable action in the superior court, was entirely different and distinct from the cause of action in the present case. In the suit in the city court the action was based upon three promissory notes given by Medlock to Moore, Marsh & Co., payable to their order, and signed by him alone as maker. In the case in hand the suit is based upon Medlock's indorsements of two promissory notes, each payable to his own order, signed by Zachry and Richmond as makers, indorsed in blank by Medlock, and transferred to Moore, Marsh & Co. It is clear that the two suits were upon different instruments or obligations, and the liability upon which the plaintiffs in the suit in the city court sought to recover against Medlock was different from that upon which the plaintiffs in the present case seek to recover against him. Hill v. Freeman, 7 Ga. 211, 220; Worth v. Carmichael, 114 Ga. 699, 40 S.E. 797. In the case last cited it was held: "A judgment rendered in litigation between the same parties is not conclusive in a subsequent suit between them on a different cause of action, except as to issues actually made and determined in the former litigation. Accordingly, where two notes were given upon a consideration arising in one and the same transaction, a judgment rendered in favor of the payee against the maker upon one of such notes did not operate to estop the latter from setting up in a subsequent action brought by the former against him on the other note a defense which was not in issue when the judgment was rendered." If two notes given by the same maker to the same payee upon a consideration arising in one and the same transaction, when sued upon separately, represent different causes of action, then it is perfectly obvious that the suit against Medlock in the city court of Lawrenceville upon the three promissory notes payable to the order of Moore, Marsh & Co., signed by him as maker, was upon a different cause of action from that involved in the present suit in the superior court of Gwinnett county against him upon his indorsements of two notes payable to his own order, and executed by Zachry and Richmond as makers. Even if, in comparing the causes of action, we look merely to the present case, and to whatever cause of action Medlock may be said to have had in his equitable action against Moore, Marsh & Co., ignoring the fact that that was merely in the nature of an equitable answer to their suit against him, it seems hardly necessary to say that his cause of action in that proceeding was different from the cause of action of the plaintiffs in the present case against him. Whatever cause of action he had and set up then is obliged to be different and distinct from the cause of action set up against him now.

As "a judgment rendered in litigation between the same parties is not conclusive in a subsequent suit between them on a different cause of action, except as to issues actually made and determined in the former litigation," the question arises whether, in the case under consideration, Medlock showed that in the former litigation, upon the result of which he relied to support his plea of res adjudicata, the issue as to his liability to Moore, Marsh & Co. upon his indorsements of the two Zachry and Richmond notes now sued on was both made and determined. For him to sustain his defense of estoppel by judgment, it was necessary for him to show not only that this issue was raised in the former litigation, but also that it was then determined in his favor. The defenses which he then set up were contradictory and inconsistent. One of them was that the two notes of Zachry and Richmond, payable to the order of Medlock, upon the indorsement of which he is sued in the present case, had been accepted by Moore, Marsh & Co. as payment pro tanto of his indebtedness to them, for which he was entitled to a credit upon the notes on which they were then suing him, and that he had subsequently paid to them the balance left due thereon in cash. It is obvious that, if this defense was found by the jury to be sustained by the evidence, their verdict, finding generally in his favor, and that his three individual notes and the deed which he had given to secure them be surrendered and canceled, and Moore, Marsh & Co. be required to execute a deed reconveying the property described in the security deed to him, naturally followed; and it was wholly unnecessary for them to pass upon the merits of his other defenses. It is impossible to tell, from the record introduced in support of the plea of estoppel by judgment, upon which of the defenses set up by Medlock in his equitable proceeding against Moore, Marsh & Co. the verdict therein was rendered, as the verdict was general. It is evident that, if that verdict was based upon the above-stated defense, the decree founded thereon is no bar to the present action against him, for the verdict would then mean no more than that Medlock, after paying his three individual notes which he had given to Moore, Marsh & Co., with the two notes of Zachry and Richmond, indorsed by him, and a certain sum in cash, to cover the balance, was entitled to have these individual notes surrendered to him, and the deed which he had given to secure them canceled, and the property therein described reconveyed to him.

A case decided by this court which is directly in point is Hunter v. Davis, 19 Ga. 413, where it was held "A judgment is not a technical estoppel as to any matter if the matter is not such that it had, of necessity, to be determined by the court and jury before the court could give the judgment." In that case the original trustee named in a deed, which conveyed certain negroes and other property in trust for specified purposes and beneficiaries, had been removed for cause, and another trustee appointed in his stead; and the new trustee had brought an action of trover for the recovery of four of these negroes, against the person who had them in possession, who was the husband of one of the beneficiaries. Upon the trial of this action the defendant introduced in evidence a transcript of the record of a suit in equity against him and his wife and the original trustee, brought by the other beneficiaries of the trust, and relief upon the decree therein rendered as an estoppel upon the plaintiff in the trover suit. Upon the trial of the trover case, the judge, in effect, charged the jury that the plaintiff, being a party to the decree, was estopped from denying the right of the defendant to hold the negroes during the lifetime of his wife. This court held such charge to be erroneous, upon the ground that, in order for the decree in the equity cause to be rendered, "it was not a matter of necessity that the court should first determine the question" which was involved in the trover suit. Benning, J., who delivered the opinion, said: "Was the right...