McWilliams v. Walthall
| Decision Date | 20 April 1886 |
| Citation | 77 Ga. 7 |
| Parties | MCWILLIAMS v. WALTHALL et al., executors. |
| Court | Georgia Supreme Court |
March Term, 1886.
The judgment rendered when this case was formerly here (65 Ga 109) effectually disposes of the present bill of exceptions. The record in that case covered the question now urged; and if it was not then presented and insisted on, the failure of the party to do so is attributable solely to his own neglect it not appearing that he was prevented from doing so by fraud, accident or mistake, or by the act of his adversary.
Res Adjudicata. Judgments. Before Judge HARRIS. Coweta Superior Court. September Term, 1885.
J. H Walthall brought suit to the September term, 1866, of Coweta superior court, against A. J. McWilliams, on a promissory note for $2,500. The defendant pleaded the general issue that the plaintiff agreed to receive payment in Confederate money, but when tendered, he refused to accept it; and that the defendant had lost largely by the results of the war. The jury found for the plaintiff " the return of the land," and a judgment was entered thereon. The case was taken to the Supreme Court by writ of error, and the judgment of the court below was affirmed by a dismissal of the case (41 Ga. 422). A writ of possession issued and was executed. The defendant entered into a written agreement with the plaintiff to attorn to him.
The defendant then moved to set aside the judgment, on the grounds that the verdict was void for uncertainty; that the judgment was not entered up at the term when the verdict was rendered; that it did not follow the verdict; and that the verdict did not decide the issue made by the pleadings.
Subsequently McWilliams filed a bill in aid of his motion. He alleged that the sheriff had notice of an intention to resist the writ of possession by affidavit of illegality; that time was asked to prepare such affidavit, but it was refused, and that complainant was compelled to sign the lease contract in order to prevent being turned out with his family at once. It was alleged also that Walthall would dispossess the complainant under the lease unless enjoined; and it was prayed that he be so enjoined, and that the lease be cancelled and the judgment set aside.
J. H. Walthall died, and Leonard H. Walthall et al. became executors. They answered, denying any duress in regard to the making of the lease, and alleging that on the trial of the common law case, an amendment to the declaration was filed, or agreed to be considered filed, praying a return of the land; and that the case was tried and evidence submitted, without objection, for equitable relief under the relief act of 1868.
On the trial, the jury found for the defendants the possession of the land and $1,000 rents. This case was carried by writ of error to the Supreme Court, and the judgment was affirmed (65 Ga. 109).
McWilliams then brought the present action of ejectment against Walthall et al., executors, who pleaded the former recovery. On the trial,...
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