Lewis v. Price
| Decision Date | 28 September 1961 |
| Docket Number | No. 38893,No. 2,38893,2 |
| Citation | 104 Ga.App. 473,122 S.E.2d 129 |
| Parties | Forrest LEWIS v. Otis G. PRICE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In order for a party to take advantage of the doctrine of res judicata in a subsequent suit brought against him after the termination of the first, there are three prerequisites to which the situation must conform. They are: (1) identity of the parties; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must concur. The trial court did not err in overruling the defendant's plea of res judicata.
2. The instant suit not having abated under the provisions of Code Ann. § 3-512, the trial court did not err in oevrruling the defendant's plea in abatement.
On February 28, 1953, Otis G. Price filed a suit on a note in Emanuel Superior Court against Forrest Lewis and E. E. Lewis. A default judgment was rendered in this case on April 18, 1953. On March 1, 1958, the defendants in that suit filed a suit in equity in Emanuel Superior Court against the plaintiff therein to declare the default judgment rendered on April 18, 1953, to be null and void, to cancel the fi. fa. issued thereon, to enjoin the enforcement of the fi. fa., and for other relief, on the ground that they had never been served with a copy of the suit filed on February 28, 1953. The case was tried before a jury which found for the defendants (in the original action), and a judgment was entered granting the relief sought.
Subsequently, on January 18, 1961, the defendant Forrest Lewis was personally served with a copy of the petition and process in the original action. On February 13, 1961, the defendant filed a plea of res judicata and a plea in bar of the pending suit. In the plea of res judicata the defendant contended that the suit of March 1, 1958, which was finally terminated with the judgment of October 13, 1958, was a suit between the same parties as the instant suit, was based upon the same cause of action as the instant suit, and was conclusive between the parties 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, and was a full and final adjudication of all issues presented in the instant suit. It was not contended in the plea, however, that the merits of the defendant's liability on the note were actually litigated and decided in the equitable suit.
In the plea in bar it was contended that since no valid order or entry was taken in the instant case between December 22, 1953, which was the effective date of Code Ann. § 3-512, and January 18, 1961, the case stood automatically dismissed pursuant to the provisions of Code Ann. § 3-512, on December 22, 1958, and the plaintiff was barred from proceeding with the suit at this time.
The issues raised in the defendant's pleas were submitted to the court without the intervention of a jury by agreement of the parties under a stipulation that the records of the various proceedings would speak for themselves without further evidence. On March 4, 1961, the trial court entered an order overruling both pleas which is the judgment under review.
Rountree & Rountree, W. E. Rountree, Swainsboro, for plaintiff in error.
Spivey & Carlton, Milton A. Carlton, Swainsboro, for defendant in error.
1. In order for the doctrine of res judicata to apply, or for a party to take advantage of the doctrine in a subsequent suit brought against him after the termination of the first, there are three prerequisites to which the situation must conform. They are: (1) identity of parties; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must concur. Stevens v. Stembridge, 104 Ga. 619, 622, 31 S.E. 413; Woods v. Travelers Insurance Co., 53 Ga.App. 429, 186 S.E. 467; Krasner v. O'Dell, 89 Ga.App. 718(3), 80 S.E.2d 852.
While the equitable suit to set aside the default judgment entered in the original suit naturally involved the same parties and the same subject matter as the instant suit, the identity of the cause of action is lacking. The cause of action in the instant suit is based upon an alleged indebtedness of the defendant to the plaintiff under a note executed by him which is past due and unpaid. The cause of action in the equitable suit was based upon a judgment which had been entered against the defendant in a suit in which he...
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