Harris v. Gano
| Decision Date | 08 April 1903 |
| Citation | 44 S.E. 11,117 Ga. 934 |
| Parties | HARRIS v. GANO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A verdict without a judgment will not sustain a plea of res adjudicata. Even if the verdict could be used as evidence establishing the rights of those in whose favor it was rendered, yet, upon due notice by the losing party of an intention to move for a new trial, the judge having jurisdiction of the parties and subject-matter could have granted time in which to move for a new trial, or otherwise stayed or suspended the effect of the verdict as evidence.
2. Where, for the purpose of obtaining an equitable set-off, H filed a petition to enjoin a judgment against him, held by a member of a firm against which H. had suits then pending, and which suits subsequently resulted in favor of the defendant firm, it was competent, during the same term, on the trial of the petition for permanent injunction, for H. to prove that he expected to move for a new trial.
3. After notice of such intention to move for a new trial, the verdicts should not have been treated as a final adjudication that H. had no claim which could be set off in equity against the judgment.
4. Notwithstanding such verdicts, if the proof sustained the allegations in the petition, H. would have been entitled to an injunction, with a provision that the same be vacated unless in due time and form he moved for a new trial or excepted, and the judgment of the court below was reversed.
Error from Superior Court, Houston County; W. H. Felton, Jr. Judge.
Action by F. W. Gano against W. H. Harris, executor. Judgment for plaintiff, and defendant brings error. Reversed.
Louis L. Brown and Bacon, Miller & Brunson, for plaintiff in error.
H. A Mathews, for defendant in error.
Gano sued Harris, executor, on a note for $2,000. The defendant admitted the indebtedness, but filed an equitable petition to enjoin the suit, in order to enable him to obtain the benefit of an equitable set-off, alleging that he had two common-law actions pending in Houston superior court against Gano & Jennings, one for $3,465, and the other for $6,569; that these claims arose from the breach of a contract, on the part of Gano & Jennings, to cut, pile, and ship hardwood timber on land belonging to Harris as executor; that Gano was a member of the firm of Gano & Jennings; that the partnership and Jennings were insolvent; that Gano had no property in this state out of which money could be made in case Harris recovered in his suits against the firm; and that, therefore, he was entitled in equity to set off the firm debts against Gano's claim. These allegations were denied. An interlocutory order was taken, restraining the prosecution of Gano's suit against Harris upon Harris' giving bond. A judgment was subsequently rendered in favor of Gano for $2,000 against Harris, but a transfer or levy of the execution was restrained by virtue of a subsequent order on the equitable petition. At the April term, 1902, of Houston superior court, the two cases of Harris, executor, against Gano & Jennings were tried. In one, a general verdict in favor of the defendants was returned; in the other, the jury found a verdict for $352 in favor of the defendants against Harris. During the same term the case in which Harris prayed that Gano's judgment should be enjoined was called, with a view of determining whether the facts warranted a permanent injunction. Evidence was introduced sustaining most of the allegations in the petition. The fact that verdicts had been rendered in favor of Gano & Jennings in the two cases above referred to was admitted, and Harris thereupon offered to testify that he intended to make a motion for a new trial in those two suits, and, in case the same were overruled, to sue out bills of exceptions to the Supreme Court. This evidence was excluded. He also offered to show that Gano had removed to Florida and was insolvent. On the theory that Gano & Jennings had successfully resisted Harris's claim, and that there was then no equity in preventing Gano from proceeding with his execution, the court directed the jury to return a verdict refusing the injunction.
The petition set out facts sufficient to entitle Harris to an equitable set-off, and to an injunction against the enforcement of Gano's judgment until Harris had the opportunity to establish his claim against Gano & Jennings of which firm Gano was a member. Hecht v. Snook, 114 Ga. 924, 41 S.E. 74; Civ. Code 1895, § 3996. If the verdicts in favor of Gano & Jennings had finally adjudicated that Harris had no claim against Gano & Jennings, or against Gano as a member of that firm, which could be set off against the latter's individual judgment, the injunction, of course, should have been refused. A plea of res adjudicata was not filed; and, conceding that for some purposes a verdict may be evidence, without judgment thereon (Carstaphen v. Holt, 96 Ga. 703, 23 N.E. 904), yet these verdicts were not final. Harris still had the right to move for a new trial, and, in case the motion had been granted, the status would have been restored, and thereupon Harris's right to an...
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