Ezzard v. Morgan, s. 43590-43592
| Decision Date | 08 May 1968 |
| Docket Number | Nos. 43590-43592,No. 2,s. 43590-43592,2 |
| Parties | D. P. EZZARD et al. v. Alma C. MORGAN. Alma C. MORGAN v. D. P. EZZARD et al. Alma C. MORGAN v. P. D. WEST et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
After this case became in default as to some of the defendants and the plaintiff dismissed as to other co-defendants, and thereafter the court exercised its discretion to open the default for excusable neglect, the court was authorized to re-instate the case against the co-defendants.
The petition of the plaintiff, a real estate broker, alleged that the defendants damaged her by a conspiracy to deprive her of a brokerage commission. The named defendants were Mr. Dorris P. Ezzard and Mrs. Belle Ezzard, his mother, who employed the plaintiff to list and offer their property for sale, and other individuals who held the offices of Superintendent of Schools of Fulton County, members of the Fulton County Board of Education, and an employee of the board. (The court dismissed an earlier action, seeking the same relief for the same tort, brought by the plaintiff against the Ezzards and the Fulton County Board of Education, which will be discussed in Division 2 of this opinion.)
The present case became in default as to the Ezzards. The plaintiff dismissed the petition as to the school officials without prejudice. The Ezzards made a motion to open the default. Over the plaintiff's opposition, the court sustained the Ezzards' motion, opened the default, re-instated the school officials, and ordered that the case proceed for trial against all the defendants. The school officials made a special appearance for the purpose of making a motion to vacate the portion of the order which reinstated them as parties. On this motion the court vacated the re-instatement and ordered that the case stand dismissed against the school officials. On the same date the court denied the Ezzards' motion to dismiss the action on the ground that it was res judicata.
In Case No. 43590 the Ezzards appeal from the last mentioned order and from an order striking a defense on the same ground included in their answer.
In Case No. 43591 the plaintiff cross-appeals from the order sustaining the Ezzards' motion to open default and allowing them to file defensive pleadings.
In Case No. 43592 the plaintiff appeals from the order vacating the order re-instating the school officials as parties defendant and dismissing the case as to them, and from a later order denying the plaintiff's motion to add these individuals as parties.
Mitchell, Clarke, Pate & Anderson, Stephens Mitchell, Taylor W. Jones, Atlanta, for appellants.
J. Ralph McClelland, Atlanta, for Alma C. Morgan.
Sutherland, Asbill & Brennan, D. R. Cumming, Jr., J. D. Fleming, Jr., Atlanta, for appellees.
1. Appeal No. 43590. Res judicata is an affirmative defense which should normally be raised by a responsive pleading. Code Ann. § 81A-108(c). The appellants have raised this defense in their answer and by a motion to dismiss. 1 A Barron and Holtzoff-Wright, Federal Practice and Procedure 169-173, § 279. See also 2A Moore's Federal Practice § 12.09; 5 Cyclopedia of Federal Procedure, 3rd Ed., § 15.155. We will therefore rule on whether the trial court erred in overruling the defendants' (Ezzard and Ezzard) motion to dismiss the plaintiff's petition on the ground of res judicata.
2. Relating to the motion to dismiss, the record shows that in a previous suit the plaintiff alleged the same cause of action against the Ezzards and the Fulton County Board of Education. The court's order of January 19, 1967, in that action, upon which the Ezzards base their defense of res judicata, was entered prior to the effective date of the new Civil Practice Act. It sustained a motion to dismiss filed by the defendant board on the ground that it was not a suable entity and sustained the Ezzards' oral motion to dismiss. While the latter motion stated as its ground that in an action for damages alleging a conspiracy between two or more defendants, a verdict against only one of the alleged conspirators is null and void and can not support a judgment, it amounted to nothing more than a claim that co-conspirators are indispensable parties to a suit in tort based upon the alleged conspiracy. This was an erroneous ruling on the part of the trial court in view of the law that 'where several persons conspire to defraud another, one or all of the wrongdoers may be sued.' Willson v. Appalachian Oak Flooring & Hardware Co., 220 Ga. 599, 609, 140 S.E.2d 830, 836. However, this is immaterial for the reason that it, like the ruling on the Fulton County Board of Education's motion did not relate to the merits of the case and therefore cannot be the basis of a defense of res judicata. See Code §§ 110-503, 110-504; Leverett, Hall, Christopher, Georgia Procedure and Practice 798, § 30-9 (1957 ed.).
The trial court did not err in overruling the Ezzards' motion to dismiss the petition upon the ground that the cause of action as to them was res judicata, nor did it err in granting the plaintiff's motion to strike from the defendants' answer the defense of res judicata.
3. Appeal No. 43591. The plaintiff enumerates as error in her cross-appeal the sustaining of the Ezzards' motion to open their default under Code Ann. § 81A-155(b) and file defensive pleadings on the ground of excusable neglect. The order opening the default states that a hearing was had and the defendants made a showing of excusable neglect. The record contains no transcript or brief of the evidence heard.
The Ezzards' motion to open...
To continue reading
Request your trial
-
Drug Emporium, Inc. v. Peaks, A97A0710
...which might have been the act of a reasonably prudent person under the same circumstances." ' " (Citations omitted.) Ezzard v. Morgan, 118 Ga.App. 50, 53(3), 162 S.E.2d 793; see Security Mgmt. Co. v. Keasler, 131 Ga.App. 230, 205 S.E.2d The failure of the insurance agent to deliver the summ......
-
Hardy v. Ga. Baptist Health Care Systems
...350, 351-352(1), 268 S.E.2d 403 (1980); Phillips v. State Farm Mut. Auto. Ins. Co., supra at 346, 173 S.E.2d 723; Ezzard v. Morgan, 118 Ga.App. 50, 51(1), 162 S.E.2d 793 (1968). However, an affirmative defense cannot be raised for the first time on oral argument on motion for summary judgme......
-
Catalina, Inc. v. Woodward
...Practice, 2d Ed. (p. 1863), § 8.28. Accord: Butcher v. United Electric Coal Co., 174 F.2d 1003, 1005-1006.' See also Ezzard v. Morgan, 118 Ga.App. 50, 51, 162 S.E.2d 793. It is our opinion that the position taken in the Phillips case is sound and anything held to the contrary in Chastai Fin......
-
Global Associates, Inc. v. Pan American Communications, Inc.
...cases which predate our current CPA § 55. Grandpa's Store v. City of Norcross, 247 Ga. 350, 351, 275 S.E.2d 59; Ezzard v. Morgan, 118 Ga.App. 50, 53, 162 S.E.2d 793. "For the relief requested to be granted, there must be a motion, meritorious defense, a legal excuse for late filing, and pay......