Eubanks v. Electrical Wholesalers, Inc., 42763

• Decision Date: 29 May 1967
• Docket Number: No. 42763,No. 3,42763,3
• Parties: J. C. EUBANKS v. ELECTRICAL WHOLESALERS, INC
• Court: Georgia Court of Appeals

Page 502

156 S.E.2d 502

116 Ga.App. 56

J. C. EUBANKS v. ELECTRICAL WHOLESALERS, INC.

No. 42763.

Court of Appeals of Georgia, Division No. 3.

May 29, 1967.

Rehearing Denied June 21, 1967.

Certiorari Denied Sept. 7, 1967.

Syllabus by the Court

Where the issue in the present suit was not determined in a prior suit brought by the defendant against the plaintiff, the doctrine of res judicata is not applicable.

Electrical Wholesalers, Inc., brought a suit on an account in the sum of $38,055.06 against James C. Eubanks d/b/a Eubanks Electric Company in the Civil Court of DeKalb County. To this suit Eubanks filed a plea of res judicata which alleged that Eubanks had brought a suit against Electrical in Fulton Superior Court; that in the former petition it was alleged that Electrical claimed Eubanks owed it in excess of $37,000; that Eubanks admitted owing Electrical some portion of that amount but he actually owed no more than some $18,000; that Eubanks prayed for an equitable accounting against Electrical.

The plea also alleged that Electrical had filed general and special demurrers and an answer to Eubank's petition. In the answer Electrical admitted it claimed Eubanks owed in excess of $37,000 but did not set out a cross action for that amount.

On hearing of the renewed demurrers to the petition as amended the trial judge sustained Electrical's general demurrers to Eubanks' petition and dismissed the case. In his plea of res judicata, Eubanks contends that the ruling on the general demurrers in the prior case precluded Electrical from bringing the present action.

Electrical filed its general and special demurrers to the plea of res judicata. The issue coming on for hearing, the trial judge sustained the demurrers to Eubanks' plea of res judicata and dismissed it. From this ruling Eubanks appeals and enumerates the same as error.

William T. Brooks, Atlanta, for appellant.

Maley & Crowe, James E. Maley, Atlanta, for appellee.

J. KELLEY QUILLIAN, Judge.

The only question here involved is whether the plea of res judicata is sufficient when tested on general demurrer. In considering this question, we are confronted with the novel proposition propounded by the appellant that, since a general demurrer was sustained to his petition in a former suit seeking an accounting, the defendant in that suit by failing to file a cross action is now precluded by the doctrine of res judicata from proceeding with the present suit on account.

Code § 110-501 provides 'A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.' Relying on this principle and cases expounding it, e.g. Hoffman v. Summerford, 28 Ga.App. 247(1) 111 S.E. 68; Clay v. Smith, 207 Ga. 610, 63 S.E.2d 602, the appellant contends that when the suit was filed against Electrical, if it had any defense or counterclaim which could be asserted, it must have asserted such defense or claim. When the present plaintiff...