Hamlin v. Johns

• Decision Date: 12 February 1930
• Docket Number: 19878.
• Parties: HAMLIN v. JOHNS.
• Court: Georgia Court of Appeals

151 S.E. 815

41 Ga.App. 91

HAMLIN v. JOHNS.

No. 19878.

Court of Appeals of Georgia, Second Division

February 12, 1930

Syllabus by Editorial Staff.

Under doctrine of res judicata, whenever there has been judgment by court of competent jurisdiction in former litigation between same parties, based on same cause of action as pending litigation, litigants are bound to extent of all matters put in issue or which under rules of law might have been put in issue by pleadings in previous litigation.

Where party pleads but one wrong in respect to same transaction cause of action is same as regards claim of res judicata, and it makes no difference that remedy sought to be applied under different procedures growing out of same wrong may be different.

Cause of action merely gives rise to remedy, terms not being synonymous, and term "remedy" being limited to judicial means whereby cause of action may be enforced including application of measure of damages appropriate to relief sought.

Cause of action, in proceeding to rescind contract and sale based on alleged wrong of seller in misrepresenting identity of portion of property sold, held same as cause of action by purchaser for damages based on seller's fraud in procuring contract of sale, and hence issue as to alleged misrepresentation actually litigated in first action was settled and concluded against losing party in first action.

"Estoppel by judgment" is created only as to such matters as were necessarily or actually adjudicated in former litigation.

Pendency of prior action for same cause and between same parties is good ground for plea in abatement.

Action to rescind contract for sale of land on ground of misrepresentation by vendor held not to involve same cause of action as subsequent proceeding by vendor to recover on purchase-money notes, where vendor did not seek recovery on notes in former proceeding, and hence vendor was not deprived of right to maintain action on notes pending final determination of purchaser's suit to cancel same.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Suit by F. E. Johns against J. B. Hamlin. Judgment for plaintiff, and defendant brings error. Affirmed.

"Cause of action" merely gives rise to "remedy," terms not being synonymous.

Statement of facts by Jenkins P.J.:

In a former proceeding Mrs. Hamlin brought an equitable petition against Mrs. Johns by which she sought to rescind and have canceled certain promissory notes executed by her to the defendant for the purchase price of certain lands, alleging in her petition that the agent of the defendant in that case had, previous to the purchase of the land, pointed out to her certain valuable land as embraced in the tract about which negotiations were pending, which did not in fact belong thereto, and that she was inducedto enter upon the contract of purchase by reason of such false representation. Actual and willful fraud on the part of such agent was not alleged. On the trial of the former proceeding a verdict was directed in favor of Mrs. Johns, the defendant; the temporary restraining order theretofore granted was dissolved, and no supersedeas staying the judgment was entered. This judgment was affirmed by the Supreme Court in Hamlin v Johns, 166 Ga. 880, 144 S.E. 659, 661, in which it was held that, no exception having been taken to the direction of the verdict because there were questions of fact that should have been submitted to the jury, the case was dealt with as if the verdict had been found by the jury. In the opinion in that case it was said: "Under the pleadings and the evidence in this case, the jury would have been authorized to find that the agent of the defendant in pointing out the property did not knowingly make a false representation as to the identity of the property; also, that the plaintiff did not herself exercise ordinary care in ascertaining the truth as to the identity of the property that was sold; also, that after discovery of the mistake as to the identity of the property she did not move within a reasonable time to rescind. In the circumstances a verdict for the defendant was authorized by the evidence." After a motion for new trial had been made in the former case in the court below and during the time within which exceptions could be taken and in fact were thereafter taken, to the judgment overruling such motion, Mrs. Johns filed suit on the purchase-money notes. To this suit a plea in abatement was entered on the theory that the action was premature at the time it was instituted, because at that time the proceeding to rescind the contract and cancel the notes was still pending. On the trial of the issue made by the plea in abatement the judge directed a verdict against the plea, to which exceptions pendente lite were filed, and it is now insisted by counsel for Mrs. Hamlin that if the decision that the purchaser could not rescind is conclusive against her right to...