Hadden v. Fuqua

• Decision Date: 22 September 1942
• Docket Number: 14229,14230.
• Citation: 22 S.E.2d 377,194 Ga. 621
• Parties: HADDEN et al. v. FUQUA et al. FUQUA et al. v. HADDEN et al.
• Court: Georgia Supreme Court

22 S.E.2d 377

194 Ga. 621

HADDEN et al. v. FUQUA et al.

FUQUA et al. v. HADDEN et al.

Nos. 14229, 14230.

Supreme Court of Georgia

September 22, 1942

Rehearing Denied Oct. 14, 1942.

Syllabus by the Court.

1. Where a final judgment was rendered in term on March 16 1942, and the court did not adjourn until more than thirty days afterwards the losing parties were entitled, under the Code, § 6-902, to sixty days from the date of such judgment within which to tender a bill of exceptions; and where the bill of exceptions was in fact tendered on March 28, 1942 and was held by the judge without certification, pending instruction to counsle for the plaintiffs in error to confer with opposing counsel in an effort to agree on a certain matter, and, an agreement being finally reached, the bill of exceptions was certified on May 1, 1942, the delay of counsel for the plaintiffs in error in accomplishing this result whatever the cause, would not authorize dismissal of the writ of error, since notwithstanding such delay, the bill of exceptions was finally certified within the time unqualifiedly allowed by the foregoing statute.

2. While it is declared in the Code, § 3-608, that parol evidence shall be admissible to show that a matter apparently covered by a judgment was really not passed upon by the court, this section must be construed in harmony with other sections to the effect that a judgment of a court of competent jurisdiction, if not absolutely void for some reason, shall be conclusive between the same parties and their privies, until it is reversed or set aside, and may not be impeached collaterally.

(a) According to the record in a former case, as introduced in the present case in support of a plea of res judicata, the court, in sustaining a demurrer to the former suit based on the same cause of action, apparently decided on the merits of the case, and the extrinsic evidence submitted to the auditor in the instant case did not tend to show the contrary.

(b) The evidence demanded a finding in favor of the plea of res judicata; and the auditor having found against the plea, the court erred in overruling the defendant's exceptions of fact to the report of the auditor as to that issue.

3. Although a plea of tender may contain no reservation in favor of a plea of res judicata previously filed, it will not prevent the defendant from relying thereon for the purpose of defeating a recovery in excess of the sum tendered. Such a tender, however, being unconditional, should be taken as an unqualified admission of liability to the extent of the sum tendered, and will demand a judgment for that sum against the party so pleading, regardless of the finding or result on the plea of res judicata.

4. The court did not err in refusing to approve the plaintiffs' exception of fact to the finding of the auditor so far as it was adverse to them, it not appearing from the record that the finding was unauthorized, as insisted.

5. Direction is given by this court to the trial court, as to final disposition of the case in favor of the defendants on the plea of res judicata, subject to a judgment in favor of the plaintiffs as against one defendant on his plea of tender.

On June 8, 1939, T. L. Fuqua and H. W. Fuqua, as executors of the will of B. T. Fuqua, filed in Johnson superior court a suit in equity against A. O. Hadden in his representative capacity as guardian of the property of B. T. Fuqua, and the Fidelity and Casualty Company of New York as surety on the guardian's bond, praying for accounting as to moneys received by the guardian from the estate of his ward, for injunction to restrian the guardian from proceeding in the court of ordinary with an application for discharge for a money judgment against both defendants, and for general relief. After an amendment to the petition, a general demurrer by Hadden was sustained, and the action was dismissed. The plaintiffs excepted, assigning error on that judgment; but the writ of error was dismissed because of delay of the clerk in transmitting the record and the bill of exceptions to this court. Fuqua v. Hadden, 190 Ga. 361, 9 S.E.2d 243.

On May 24, 1940, the same plaintiffs brought in Richmond superior court a second action against Hadden individually and as guardian, and against his surety, in which suit Lester F. Watson and R. M. Daley, attorneys, were added as defendants. In this action the plaintiffs sought, as against the defendant guardian and his surety, substantially the same relief which they had previously sought in the Mohnson County suit, and prayed for judgment also against Watson and Daley. It was alleged that 'the defendant A. O. Hadden and his attorneys at law, the defendants Lester F. Watson and R. M. Daley, have together wasted and misapplied the moneys coming into' the hands of the guardian; that the defendants had entered into a conspiracy with the clerk of Johnson superior court, in consequence of which the clerk 'held up the record in said case from August 11, 1939, to December 18, 1939,' which delay resulted in the dismissal of the writ of error in the Johnson County case. The petition in the Richmond County case was several times amended; and it is that case which has continued to be litigated.

Hadden and his surety demurred and answered, and among other defenses Hadden filed a plea of res judicata, asserting that the judgment in the Johnson County suit constituted a bar to the Richmond County action, attaching to his plea copies of the petition, amendment, demurrer, and order in the Johnson County case, and the remittitur from the Supreme Court therein. The plea of res judicata was filed in August, 1940. In March, 1941, Hadden amended his answer by alleging that before any suit was filed he had tendered a stated sum to the plaintiffs, but had later, at their request, paid a certain amount for the benefit of the estate, leaving a balance of $904.16 as the sum due to the plaintiffs on the date the suit was filed, which sum 'is now tendered to the plaintiffs herein in full settlement and satisfaction of all claims of the plaintiffs against this defendant as guardian of the property of B. T. Fuqua.' The defendants filed a demurrer to the plea of res judicata. The case was referred to an auditor, who, after considering the pleadings and hearing evidence, made a report in which he sustained the demurrer to the plea of res judicata, and found in favor of the plaintiffs for stated amounts as against the defendant guardian and his surety. He found against the plaintiffs as to all charges of fraud, and acquitted the defendant attorneys of any wilful misconduct and of any liability to the plaintiffs. To this finding as to the attorneys no exception was taken, although the plaintiffs were dissatisfied with certain parts of the report, and filed exceptions which were overruled, and on writ of error the judgment overruling them was affirmed by this court. Fequa v. Hadden, 192 Ga. 654, 16 S.E.2d 728. To the report of the auditor exceptions of law and of fact were taken also by Hadden and the surety company. These exceptions also were overruled, and Hadden and the surety company excepted. On this writ of error the judgment was reversed; it being held by this court that the plea of res judicata stated a good defense, and that the overruling of the auditor's report was error in so far as it sustained the demurrer to such plea.

For a more complete statement of the pleadings in both the Johnson County suit and the present action, reference is made to the report of the decision rendered on September 10, 1941. Hadden v. Fuqua, 192 Ga. 668, 16 S.E.2d 737.

After return of the case to the trial court, it was again referred to the auditor on October 13, 1941. It was 'agreed and stipulated by and between the parties hereto as follows: 1. That the evidence and testimony heretofore adduced at the hearings had before the auditor, Hon. Henry G. Howard, is still before him for his consideration in making his report under the reference of October 13, 1941; such evidence and testimony to be given the same effect and consideration as if adduced before him under the said last reference. 2. That the parties hereto have no other or further evidence to introduce.' On the evidence before him, and without further change in the pleadings, the auditor made a report in which he found: 'In conclusion, the plea of res adjudicata is without merit, and is not a bar to the Richmond superior court suit by the Fuquas.' He made other rulings and findings in favor of the plaintiffs. The defendants filed several exceptions of law and one of fact; one of the exceptions of law and the sole exception of fact being aimed at the finding of the order in reference to the plea or res judicata. Afterwards the auditor filed an amendment to his report dealing only with the plea of res judicata, and again finding adversely to it. To this amendment the defendants filed one exception of law and one of fact. The plaintiffs filed an exception of fact, in which it was asserted that the finding of the auditor as to the amount of income received by the guardian should have been for a larger amount, and alleging that the finding as to income as actually made was contrary to the evidence. The judge overruled all exceptions, and entered judgment against Hadden for $6,062.34, and against the surety for $5,000, the amount of the guardian's bond. The defendants excepted, assigning error on the overruling of their exceptions, and the plaintiffs by cross-bill complained of the overruling of their one exception of fact.

The main bill of exceptions presents, among others, the question whether the evidence demanded a finding in favor of the plea of res judicata, notwithstanding the finding of the auditor to the contrary. The sole question...