Galloway v. Merrill, 19855
| Decision Date | 15 October 1957 |
| Docket Number | No. 19855,19855 |
| Parties | Ethel GALLOWAY v. Roy C. MERRILL. |
| Court | Georgia Supreme Court |
Chas. W. Anderson, Atlanta, Oze R. Horton, Hapeville, for plaintiff in error.
Robert D. Tisinger, Shirley C. Boykin, Carrollton, for defendant in error.
Syllabus Opinion by the Court
1. While Code (Ann.Supp.) § 24-102 provides that 'No judge or justice of any court * * * shall sit in any cause or proceeding in which * * * he has presided in any inferior judicature, when his ruling or decision is the subject of review,' the motion of plaintiff in error to disqualify one of the Justices of this court, because in 1937 he entered the judgment in the superior court which is pleaded as res judicata of the present proceeding, is without merit, and is denied, that judgment not now being the subject of review. See Cochran v. State, 113 Ga. 736, 39 S.E. 337; Blakeman v. Harwell, 198 Ga. 165, 173, 31 S.E.2d 50.
2. The failure to pay the costs in the trial court, or to file a proper affidavit in forma pauperis in lieu thereof, is not ground for dismissal of a writ of error. Brewer v. Brewer, 6 Ga. 587; Perkins v. Rowland, 69 Ga. 664; Bethea v. Dixon, 72 Ga.App. 384, 33 S.E.2d 723. The motion to dismiss the bill of exceptions upon the ground that the costs in the trial court had not been paid, and that nor proper affidavit in forma pauperis had been filed is denied. Code (Ann.Supp.) § 24-4521, and Code § 24-4523, cited by counsel for defendant in error, refer to costs in the appellate court, and not to costs in the trial court.
3. While the defense of res judicata cannot be taken advantage of unless specially pleaded (Sumner v. Sumner, 121 Ga. 1(6), 48 S.E. 727), it is provided by Code (Ann.) § 81-305 that the defendant, within the time required by the process, shall file his defense in writing, in which he shall plainly, fully and distinctly set forth his defense, and that 'Such plea or answer may contain as many several matters as the defendant may think necessary for his defense.' A plea of res judicata is not a dilatory plea, but is in the nature of a plea in bar, and need not be filed at the first term. Hill v. Cox, 151 Ga. 599(2), 107 S.E. 850; Gamble v. Gamble, 204 Ga. 82, 48 S.E.2d 540. 'Matters in abatement and in bar may be mixed in the same answer, and one defense will not defeat another.' Western & Atlantic R. Co. v. Pitts, 79 Ga. 532(3), 4 S.E. 921. See also National Bank of Augusta v. Southern Porcelain Mfg. Co., 59 Ga. 157. The motion to purge and strike that part of the defendant's answer setting up a plea of res judicata, and the objections to the introduction in evidence of the record in the former proceedings, copies of which were attached to the defendant's answer, upon the ground that the plea of res judicata was contained in the defendant's answer and was not set up as a special plea, separate and apart from the general answer, were properly overruled by the trial court.
4. The plaintiff's petition seeks to recover of the defendant certain lands therein described, conveyed to the defendant by the plaintiff's father, and profits received by the defendant therefrom, upon the ground that her father had no title thereto or right to sell the same under the will of her mother. To this petition the defendant filed his answer and plea of res judicata. The proceeding relied upon by the defendant as res judicata was a suit instituted by the present plaintiff in 1937 against her father, the grantor of the present defendant, wherein she alleged that, as an heir at law of her mother she was the owner of an undivided one-half interest in the land described in the present suit, and that the will of her mother, under which her father claimed title, was insufficient to convey title to him. She prayed that the will under which her father claimed title be construed by the court, and be declared null and void; that her father be restrained and enjoined from encumbering or disposing of the property; for the appointment of a receiver therefor; that an undivided one-half interest in said property be decreed in her; and for other relief. To this petition her father interposed a general ...
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...there is authority that a plea in bar, of which the statute of frauds is one, may be contained in the answer. Galloway v. Merrill, 213 Ga. 633, at page 634(3), 100 S.E.2d 443, and see Mendel v. L. F. Miller & Sons, 134 Ga. 610(1), 68 S.E. Under these circumstances we are constrained to acce......
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...Stores Corp. v. Beatus, 199 Ga. 215(5), 33 S.E.2d 701; Northern Assurance Co., v. Almand, 210 Ga. 243, 78 S.E.2d 788; Galloway v. Merrill, 213 Ga. 633(4), 100 S.E.2d 443. The trial judge erred in denying the plea of res judicata, and the judgment on the cross appeal must be reversed. Since ......
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...or to disprove the plaintiff's allegations] may be included in the answer rather than filed as a separate instrument. Galloway v. Merrill, 213 Ga. 633(3), 100 S.E.2d 443. Where special pleadings are contained in the answer, it is not error for the trial court to grant the motion of a party ......
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...such matter is not a dilatory plea but is in bar of the action as to him. A plea in bar may be filed at any time. Galloway v. Merrill, 213 Ga. 633(3), 100 S.E.2d 443; Dykes v. Dykes, 214 Ga. 288, 104 S.E.2d 430; Hill v. Cox, 151 Ga. 599(2), 107 S.E. 2. This was an action on open account nam......