Farmer v. Baird, (No. 16683.)

• Citation: 132 S.E. 260,35 Ga.App. 208
• Decision Date: 12 March 1926
• Docket Number: (No. 16683.)
• Parties: FARMER. v. BAIRD et al.
• Court: United States Court of Appeals (Georgia)

35 Ga.App. 208

132 S.E. 260

FARMER.

v.BAIRD et al.

(No. 16683.)

Court of Appeals of Georgia, Division No. 2.

March 12, 1926.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit between C. B. Farmer and Mary Baird and others. Judgment for the latter, and the former brings error. Reversed.

Savage & Crawford, of Atlanta, for plaintiff in error.

Joseph E. Berman and Ralph G. Sims, both of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

JENKINS, P. J. [1] Under the doctrine of res adjudicata, whenever there has been a judgment by a court of competent jurisdiction in a former litigation between the same parties, based upon the same cause of action as a pending litigation, the litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation. Civil Code 1910, § 4336; Perry v. McLendon, 62 Ga. 598; Hill v. Cox, 151 Ga. 599, 604, 107 S. E. 850; Hollinshead v. Woodard, 128 Ga. 7, 15, 57 S. E. 79; Bostwick v. Perkins, 1 Ga. 136, 139; Loganville Banking Co. v. Forrester, 17 Ga. App. 246, 87 S. E. 694; Fowler v. Davis, 1 Ga. App. 549, 57 S. E. 939.

A somewhat different rule applies in regard to the doctrine of estoppel by judgment, since the latter doctrine has reference to previous litigation between the same parties based upon a different cause of action. Worth v. Carmichael, 114 Ga. 699 (1), 40 S. E. 797; Draper v. Medlock, 122 Ga. 234, 50 S. E. 113, 69 L. R. A. 483, 2 Ann. Cas. 650. In the latter case, there is an estoppel by judgment only as to such matters as were necessarily or actually adjudicated in the former litigation; that is to say, there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters, within the scope of those pleadings, as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. In the instant ease the previous motion to set aside the judgment and the present motion to arrest the judgment are the same in purpose and effect, and necessarily constitute the same cause of action, both seeking to destroy the validity of the judgment attacked.

It follows from what has been said that, since the present motion in arrest of judgment fails to show any special reason why its ground...