King Sales Co. v. McKey, 39422

• Decision Date: 04 April 1962
• Docket Number: No. 2,No. 39422,39422,2
• Citation: 125 S.E.2d 684,105 Ga.App. 787
• Parties: KING SALES COMPANY, Inc., et al. v. Minnie McKEY
• Court: Georgia Court of Appeals

Page 684

125 S.E.2d 684

105 Ga.App. 787

KING SALES COMPANY, Inc., et al. v. Minnie McKEY.

No. 39422.

Court of Appeals of Georgia, Division No. 2.

April 4, 1962.

Rehearing Denied April 24, 1962.

Syllabus by the Court.

The judgment for the plaintiff was authorized by the evidence, no error appears from the rulings complained of in the amended motion for new trial, and the trial court did not err in overruling either the defendants' plea in bar or plea of res judicata.

This is the second appearance of this case before this court. On the first appearance, wherein rulings on the defendants' demurrers were reviewed, it was held that the petition set forth a cause of action but certain of the special grounds of demurrer were held to be sufficient and two paragraphs of the petition were ordered stricken. For a complete statement of the issues see King Sales Co., Inc. v. McKey, 104 Ga.App. 63, 121 S.E.2d 48. After the judgment of this court was made the judgment of the trial court the defendants' pleas of estoppel by judgment and of res judicata were tried and a judgment against the pleas rendered. The main case was then heard and a judgment for the plaintiff rendered, both trials were tried by the court without the intervention of a jury. Thereafter, the defendants' amended motion for new trial was overruled and they now assign error on the judgments adverse to them.

Bruce B. Edwards, Atlanta, for plaintiff in error.

Bullock, Yancey & Mitchell, Kyle Yancey, Atlanta, for defendants in error.

NICHOLS, Presiding Judge.

1. The defendants' pleas of estoppel by judgment and res judicata were based on the trial of a previous case between the plaintiff and a finance company that had advanced money to pay for the merchandise sold the plaintiff. The finance company had sued the plaintiff in the present case and she, in her answer, had alleged a conspiracy between the finance company and King Sales Co. to defraud her. Neither the defendant King Sales Co. or the defendant Roy King was a party to such action.

"Under the doctrine of res judicata, 'a judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.' Code, § 110-501. A somewhat different rule applies in regard to the doctrine of estoppel by judgment, since the latter doctrine has reference to previous litigation between the same parties, based upon a different cause of action . In the latter case there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. [citing.] Under both rules, in order for the former decision to be conclusive, it must have been based, not merely on purely technical grounds, but at least in part on the merits where under the pleadings they were or could have been involved. Code §§ 110-503, 110-504' [Sumner v. Sumner, 186 Ga. 390 (197 S.E. 833)].' Morris v. Georgia Power Co., 65 Ga.App. 180, 187, 15 S.E.2d 730, 734. See also Williams v. Richards, 100 Ga.App. 501, 111 S.E.2d 632.

The prior action between the plaintiff in the case sub judice and the finance company was not between the same parties or their privies, nor was it between the same parties on a different cause of action. The judgment denying the defendants' pleas in bar was not error, and the special ground, number 5, of the defendants' amended motion for new...