House v. Benton, 20233.

• Decision Date: 26 September 1930
• Docket Number: No. 20233.,20233.
• Citation: 42 Ga.App. 97,155 S.E. 47
• Parties: HOUSE. v. BENTON.
• Court: Georgia Court of Appeals

42 Ga.App. 97

155 S.E. 47

HOUSE.

v.BENTON.

No. 20233.

Court of Appeals of Georgia, Division No. 2.

Sept. 26, 1930.

Syllabus by Editorial Staff.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Action by W. C. House against H. V. Benton. Judgment for defendant, and plaintiff brings error.

Affirmed.

H. A. Allen, of Atlanta, for plaintiff in error.

McDaniel, Neely & Marshall and Harry L. Greene, all of Atlanta, for defendant in error.

Syllabus Opinion by the Court

JENKINS, P. J.

Benton sued House in the municipal court of Atlanta for damages to his automobile growing out of a collision. House filed a cross-action for property damages against Benton. Judgment was rendered in favor of Benton, which, not being appealed from became final. Pending the trial in the munici pal court, House sued Benton in the superior court for personal injuries growing out of the same collision, alleging the same acts of negligence as had been charged in his cross-action in the previous suit in the municipal court Upon final judgment being entered for Benton in the municipal court action, Benton, at the first term of the superior court thereafter, pleaded that judgment against House in the action in the superior court. The court sustained Benton's plea, and House excepts. Held:

1. Before the doctrine of res judicata can be applied, it must appear that a judgment has been rendered in a court of competent jurisdiction in a former litigation between the same parties, based upon the same cause of action, in which event the litigants are bound to the extent of all matters put in issue, or which, under the rules of law, might have been put in issue under the pleadings in the previous litigation; but the rule with reference to the doctrine of estoppel by judgment is somewhat different, in that there can be an estoppel by judgment whenever there has been litigation between the same parties, even though based upon a different cause of action, as to such matters only as were necessarily or actually adjudicated in the former litigation. Accordingly, in the instant case, whether or not under the ruling of the Supreme Court in Georgia Railway & Power Co. v. Endsley, 167 Ga. 439, 145 S. E. 851, 62 A. L. R. 256, there might have been what amounted to a consent to the splitting of a single cause of action, the plaintiff in the present litigation is bound, under the doctrine of estoppel by judgment, as to the questions of negligence necessarily adjudicated in the previous litigation. Duncan...