Livingston v. Marshall

• Decision Date: 01 March 1889
• Citation: 82 Ga. 281,11 S.E. 542
• Parties: Livingston. v. Marshall.
• Court: Georgia Supreme Court

11 S.E. 542

82 Ga. 281

Livingston.

v.Marshall.

Supreme Court of Georgia.

March 1, 1889.

Equity—Pleading—Amendment — Set-Off—Res Judicata.

1. A sworn bill may be amended in its prayer, and by adding a new and proper party complainant, without swearing to the amendment.

2. Immaterial error, in allowing trivial amendments without requiring them to be sworn to, will not work a reversal.

3. That a bill has not been served is not a ground of demurrer to the same.

. 4. Where the plaintiff in a judgment against two defendants—one as principal, the other as surety—is a non-resident of the state, and without property here, a debt due from him to the principal may be set off in equity against the judgment; and a bill for that purpose will be entertained in the country in which the judgment was rendered.

5. There is no element of res adjudicata as to any debt between the parties to an action of bail trover, where the plaintiff in the action, after obtaining possession of the property and giving bond, dismissed the same, and thereupon a judgment was entered up against him and his surety in favor of the defendant, as in Marshall v. Livingston, 77 Ga. 21. Such judgment has no relation to any debt which at the time of its rendition was duo and owing from one party to the other.

(Syllabus by Bleckley, C. J.)

Error from superior court, Macon county; Fort, Judge.

Bill in equity, by Marshall against Livingston, to enjoin the enforcement of a judgment theretofore recovered by Livingston against Marshall, the complainant herein. The facts as alleged In the bill are as follows: In the spring of 1882 the parties made a contract by which Marshall was to let land to Livingston, to furnish supplies to carry on the farming operations for the ensuing year, and to sell some horses to Livingston at a certain price, to be paid for in September following. The title to the horses was to remain in Marshall until they were paid for, and, if they were not paid for on the specified day, Marshall should have the right to take possession, and Livingston was to be responsible for any depreciation in the value of the horses. The crops, also, were to be under the control of Marshall until the rent and all other claims against Livingston under the contract were settled. In the spring of 1883, Livingston, Marshall, and one J. L. Ogburn, to whom Livingston was indebted, entered into an agreement which recited the lease from Marshall to Livingston for the year 1883, that Livingston was unable to...