Gunn v. James

• Court: Georgia Supreme Court
• Writing for the Court: SIMMONS
• Citation: Gunn v. James, 120 Ga. 482, 48 S.E. 148 (Ga. 1904)
• Decision Date: 12 July 1904
• Parties: GUNN v. JAMES et al.

48 S.E. 148

120 Ga. 482

GUNN

v.JAMES et al.

Supreme Court of Georgia.

July 12, 1904.

SUIT BY ADMINISTRATOR —CONCLUSIVENESS ON HEIRS—INJUNCTION—RES JUDICATA.

1. In this state, where the law makes it the duty of the administrator to administer realty as well as personalty, a suit brought by him concerning the realty of the estate of his intestate, and a judgment thereon, bind the heirs as well as the administrator. Hardaway Drummond, 27 Ga. 221, 73 Am. Dec. 730; 1 Freeman, Judg. (4th Ed.) § 163a.

2. Where a demurrer to a petition contained several grounds, some going to the merits and some special, and the court sustained "the demurrer" and dismissed the petition, there is no presumption that the ruling was based upon the special grounds of the demurrer, rather than the general, but the judgment will be treated as sustaining the entire demurrer upon all of its grounds. Merrill v. Board of Com'rs of Ness County, 7 Kan. App. 717, 52 Pac. 109, and cases cited.

3. Where an equitable petition was filed, praying for an injunction and the appointment of a receiver, and at the trial term a general demurrer was sustained and the petition dismissed, and thereafter the plaintiff filed another equitable petition, setting up the same cause of action, but elaborating the details, and praying, besides the-belief sought in the first, other and additional relief, a plea of res judicata, filed in bar of the second petition, should have been sustained. Civ. Code 1895, § 3742; Smith v. Hornsby, 70 Ga. 552; Greene v. Railway Co., 38 S. E. 360, 112 Ga. 859. See, also, Conwell v. Neal, 45 S. E. 910, 118 Ga. 624.

4. While a judge has a discretion in disposing of an application for a second interlocutory injunction upon proper showing made, yet where the record discloses that the first...