Mann v. Epstein, 47457

• Decision Date: 25 September 1972
• Docket Number: No. 47457,No. 3,47457,3
• Citation: 192 S.E.2d 516,127 Ga.App. 132
• Parties: J. F. MANN, Jr. v. B. J. EPSTEIN et al
• Court: Georgia Court of Appeals

Page 516

192 S.E.2d 516

127 Ga.App. 132

J. F. MANN, Jr. v. B. J. EPSTEIN et al.

No. 47457.

Court of Appeals of Georgia, Division No. 3.

Sept. 25, 1972.

Syllabus by the Court

An interlocutory order making an agreement between party litigants the judgment of court in which a suit is pending in another state, where the agreement simply provides that the debts of a partnership, to be ascertained in the future, are to be paid pro rata by the former partners, will not sustain a plea of res judicata in an action in this state seeking to compel the defendant to pay in his share after the amount has been ascertained.

The plaintiff and defendants in this case were partners in a business venture in Texas. A disagreement between them was followed by a laswuit in the District Court of Nueces County, Texas, in which certain of the parties sought a liquidation of the business, injunction, accounting and receivership. During the pendency of the litigation a settlement agreement dated December 3, 1970, was entered into between all parties, designating Mann, the plaintiff appellant here, as liquidating agent, and containing the following pertinent provisions:

'In the event there remain partnership debts after all assets of the partnership have been paid out, the liquidating agents shall total such debts and thereafter by Certified Mail, Return Receipt Requested, notify each of the Partners, parties to this agreement, and demand payment by said Partners proportionately as their interests appear therein. Payment shall be made, and each of the parties hereto agree that such payment by each of them, shall be paid to the liquidating agents within ten (10) days from receipt of such notice. In the event that any of the Partners fail to pay his pro rata and proportionate part of said indebtness within the stipulated time, the liquidating agents shall forthwith obtain a judgment in favor of those Partners who paid within such period their pro rata share of the indebtedness against that Partner or those Partners who fail to so pay in the amount of that Partner's share of the indebtedness so unpaid. Each of the parties hereto hereby agree to the jurisdiction of the Court, and hereby consent individually and for and on behalf of their heirs, administrators and assigns to the entry of such judgment. Each of the Parties hereto further hereby agree that in the event a judgment shall be entered as herein described such may be enforced within or without the State of Texas . . . Upon application of any of the parties hereto to said cause, said agreement may be entered as the order of said Court, and the parties hereto in such event to be bound by the terms thereof.'

Thereupon the court entered up what was designated an 'Interlocutory Judgment' as follows:

'Be it remembered that on this the 29th day of March, 1972, came on for consideration the Motion of Berney Seal to cause the Settlement Agreement made by and between the parties hereto, dated the 3rd pay of December, 1970, and filed among the papers of this cause, to be entered as the Order of this Court; and the Court having determined that proper notice has been made to all parties, that a copy of the Application filed herein by the said Berney Seal has been delivered to the attorneys of record for each of said parties, and came Berney Seal, by and through his attorney, Charles R. Porter, Jr., and the Court having heard the argument and authorities of counsel as presented and having considered the content of said Settlement Agreement, the Court hereby finds that same is in fact the agreement of the parties hereto, fully and fairly settles all the issues in this cause;

'It Is, Therefore, Accordingly Ordered, Adjudged and Decreed that the Settlement Agreement by and between the parties hereto now be, and the same is hereby, entered as the Interlocutory Order of this Court, subject to the performance by said parties of the terms and provisions of same, and that upon a showing to this Court that all of said acts and undertakings have been performed, the same shall be and become the Judgment of this Court. It is further, Ordered, Adjudged and Decreed...