Gamble v. Gamble Et Ux

• Decision Date: 14 May 1948
• Docket Number: No. 16191.,16191.
• Citation: 48 S.E.2d 540
• Parties: GAMBLE. v. GAMBLE et ux.
• Court: Georgia Supreme Court

48 S.E.2d 540

GAMBLE.

v.GAMBLE et ux.

No. 16191.

Supreme Court of Georgia.

May 14, 1948.

Rehearing denied June 18, 1948.

Second Motion for Rehearing Denied

July 16, 1948.

Syllabus by the Court.

1. The trial court did not err in overruling the demurrer of the petitioner that was interposed to the amended answer setting forth a plea of res judicata.

2. The trial court did not err in granting a motion of the defendants that the

defense of res judicata be tried before any other issue.

3. The record in the former case was relevant and material on the issue of res judicata, and the trial court did not err in overruling the objections thereto for any reason assigned.

4. The evidence demanded a finding for the defendants on their plea of res judicata, and the trial court did not err in directing such verdict, or in overruling the plaintiff's amended motion for new trial.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Action by W. E. Gamble, as administrator de bonis non of the estate of W. J. Gamble, deceased, against R. J. Gamble and wife for cancellation of a deed as a cloud upon title to realty and to recover possession of the realty and mesne profits. A verdict was directed in favor of defendants, plaintiff's motion for new trial was overruled and plaintiff brings error.

Judgment affirmed.

W. E. Gamble, as administrator de bonis non of the estate of W. J. Gamble, deceased, filed in Fulton Superior Court against R. J. Gamble and Mrs. Anna Dora Gamble a petition, which as amended alleged substantially the following: On January 4, 1926, W. J. Gamble died intestate seized and possessed of two described tracts of realty, which constituted one entire parcel of land, and which had thereon a dwelling that was occupied by the intestate during his lifetime as a home. His widow, Mrs. Mattie E. Gamble, was appointed as administratrix of his estate and duly qualified. She continued to live in the dwelling until she was committed to the Georgia State Sanitarium at Milledgeville on January 11, 1943. She died in January, 1944, while a patient in the sanitarium, without having fully administered upon the estate and without having conveyed the titles to the properties. At the time she was committed to the sanitarium, her personal effects were left in the dwelling, and subsequently to her commitment and before her death the defendants wrongfully acquired possession of the properties. The name of Mrs. Mattie E. Gamble appears to be signed to an application of file in the court of ordinary, in which leave was requested to sell the realty. Mrs. Mattie E. Gamble as administratrix never signed such application, and her name as signed thereto is a forgery and was placed thereon by the defendant, R. J. Gamble, or some other person unknown to the petitioner, and the order of the ordinary authorizing the sale was thus obtained by fraud. An instrument purporting to be a deed from Mrs. Mattie E. Gamble as administratrix conveying the realty to R. J. Gamble was recorded in the office of the clerk of the superior court. No administrator's sale was ever had of the properties and the purported deed is a forgery. Mrs. Mattie E. Gamble neither individually nor as administratrix ever recognized the defendants, R. J. Gamble and Mrs. Anna Dora Gamble, or either of them, as claiming title adverse to her right of possession as administratrix. She as administratrix was in the exclusive possession of the properties at the time she was committed to the sanitarium, and neither R. J. Gamble nor Mrs. Anna Dora Gamble was in possession of any of the properties at that time. The possession of R. J. Gamble and Mrs. Anna Dora Gamble is without warrant of authority, in that no lawful deed has ever been made divesting title to the properties out of the estate of W. J. Gamble. The purported deed is a cloud upon the title of the estate of W. J. Gamble. Mrs. Mattie E. Gamble as administratrix never exercised any administrative power other than that of taking the oath of administration and the taking possession of the properties, and her name appearing on all papers in the court of ordinary is a forgery. Mrs. Anna Dora Gamble is the wife of R. J. Gamble and her possession, being in the right of her husband, is fraudulent. The reasonable rental value of the properties is $50 per month. Because of the foregoing facts the petitioner as the administrator de bonis non of the estate of W. J. Gamble is entitled to recover the possession of the properties, to have the purported deed from Mrs. Mattie E. Gamble as administratrix cancelled as a cloud upon the titles to the properties, and to recover mesne profits. The petitioner prayed: thatprocess issue; that the purported signature of Mrs. Mattie E. Gamble as administratrix to the application for leave to sell be decreed a forgery; that it be decreed that the order of the ordinary directing citation to issue for leave to sell was procured by fraud and void; that the instrument purporting to be a deed from Mrs. Mattie E. Gamble as administratrix be decreed not to have been signed by her, and that her purported signature thereto was a forgery; that the purported deed be canceled as a cloud upon the title to the properties; that final decree be entered adjudging that the right of possession is in the petitioner as administrator de bonis non; that the petitioner as such administrator be awarded $50 a month as mesne profits; and that the petitioner have such other relief as he may in good conscience be entitled to have.

The defendants filed an answer, which as amended set forth among others the following defense: On April 12, 1941, W. E. Gamble, suing with other heirs at law of W. J. Gamble, deceased, filed an equitable petition in Fulton Superior Court against R. J. Gamble, Mrs. Mattie E. Gamble, individually, and as administratrix of the estate of W. J. Gamble, deceased, and against Northwest Atlanta Bank. The issues in that action and those in the present suit were the same as a matter of law. The same evidence would support either of the actions. The plaintiffs in the previous action sued as heirs at law of W. J. Gamble. All the debts of the intestate have been paid, and the present action is prosecuted solely for the benefit of the heirs who were then parties. By virtue of the facts alleged, the plaintiffs in the two actions were the same. R. J. Gamble was named as defendant in both the previous action and in the present action, and was a necessary party to each action. The previous defendant, Northwest Atlanta Bank, was not a necessary party in either case, and the present defendant, Mrs. Anna Dora Gamble, is not a necessary party in the present action, nor was she named in the previous action; and therefore the defendants in the two actions were the same as a matter of law. R. J. Gamble as defendant filed his general demurrer to the previous action. His demurrer was sustained with leave to amend within 30 days, otherwise the suit was to stand dismissed. The plaintiffs in the former action filed an amendment seeking to meet the grounds of demurrer. The renewed demurrer of R. J. Gamble in the former action was overruled by the trial court, and the former petition as amended was sustained. Thereafter, on bill of exceptions being sued out by the defendants in the former suit, the judgment overruling their demurrer was reversed. Gamble v. Gamble, 193 Ga. 591, 19 S.E.2d 276. The judgment of the Supreme Court was made the judgment of the trial court, and the former action was formally dismissed. The dismissal of the former action was made upon the merits of the case, and constitutes a bar to the prosecution of the present action, the plaintiff now being estopped by the judgment in the former action from recovering in the present action, and the same constitutes res judicata.

A demurrer that was interposed to the amended answer of the defendants in the instant case was overruled, and the petitioner as administrator de bonis non filed exceptions pendente lite.

On the trial of the issue of res judicata, the court directed a verdict in favor of the defendants. The petitioner's motion for a new trial as amended was overruled, and the case comes to this court for review upon his exceptions to that judgment. Error is also assigned in the bill of exceptions on the exceptions pendente lite.

Robt. B. Blackburn, of Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, Newell Edenfield and James K. Rankin, all of Atlanta, for defendants in error.

ATKINSON, Justice (after stating the foregoing facts).

1. The first question for decision is whether the trial court erred in overruling a demurrer that was interposed by the petitioner to the amended answer setting up a plea of res judicata. The grounds of demurrer were in substance that: The facts set forth in the tendered amendment affirmatively show that the matter of defense as therein set forth, if existent, must have been set forth as a special plea and suchplea must have been filed at the first term of court to which the original petition was made returnable; the parties plaintiff and the parties defendant in the former suit and those in the pending suit are not the same; the causes of action, the subject-matter, and the issues raised by the pleadings in the two suits, are not the same; and the merits of the former suit were not passed upon.

"'Dilatory pleas, ' which are required to be filed at the first term, 'are those which do not answer the general right of the plaintiff, either by denial or in confession and avoidance, but assert matter tending to defeat the particular action by resisting the plaintiff's present right of recovery.' A plea of res...