Nat'l Life & Accident Ins. Co v. Leo

Decision Date24 November 1934
Docket NumberNo. 23392.,23392.
CourtGeorgia Court of Appeals
PartiesNATIONAL LIFE & ACCIDENT INS. CO. v. LEO.

Rehearing Denied Feb. 2, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Bibb County; Louis L. Brown, Judge.

Petition by Lewis Leo against the National Life & Accident Insurance Company. Petition was dismissed on general demurrer, the superior court sustained plaintiff's certiorari, and defendant brings error.

Reversed.

Statement of Pacts by the Court:

While some question is raised in the briefs as to whether the dates of the cause of action involved in the former suit in a justice court and in the instant action are the same, the present petition expressly alleged that "petitioner brings this suit on the same cause of action." By amendment, the plaintiff attached to his petition a copy of the pleadings in the former suit in the justice court and on appeal to the superior court. The original summons stated that it was an "action of debt due on Ins. Policy No. D 7978361, " and that the amount was $71.50. The defendant filed in the justice court a demurrer to the summons, on the general ground that "the same sets forth no cause of action, " and on the special grounds that the summons was not directed to the defendant insurance company but to a third person, and that there was not "attached to the summons the insurance policy sued on, nor any itemized statement of any amount claimed to be due, nor any other statement of account, nor contract, nor other writing, upon which any Indebtedness is claimed to be due to the plaintiff." Thereupon the plaintiff filed in the justice court an amendment, attaching a copy of the policy, and setting forth the facts of his claim, which showed that the plaintiff sued for the recovery of insurance premiums paid to the company before its alleged wrongful cancellation of the policy. To this amendment the defendant filed a special demurrer, attacking the amendment on the grounds that it failed to show that the defendant had an agent, agency, or place of doing business in the county, and failed to itemize the dates and amounts of the payments made to the defendant. On appeal to the superior court, after the justice court had rendered a judgment in favor of the plaintiff, the superior court rendered this judgment: "Upon a hearing of the demurrer in the above stated case, it is hereupon ordered and adjudged that the demurrer be sustained and the suit in the above stated case dismissed." The trial court dismissed the present petition upon general demurrer, and the superior court sustained the plaintiff's certiorari.

Martin, Martin & Snow, of Macon, for plaintiff in error.

John J. McCreary, of Macon, for defendant in error.

Syllabus Opinion by the Court

JENKINS, Presiding Judge.

1. While, in the language of the Civil Code 1910, §§ 4335 and 4336, in a defense of res judicata, the subject-matter in issue in the former suit must have been "between the same parties, " and in a defense of estoppel by judgment the judgment must have been "between the same parties [or] their privies" (Callaway v. Irvin, 123 Ga. 344, 51 S. E. 477; Brenau Association v. Harbison, 120 Ga. 929, 932, 48 S. E. 363, 1 Ann. Cas. 836; Hamlin v. Johns, 41 Ga. App. 91, 151 S. E. 815), yet it isnot required that all the parties on the respective sides of the litigation in the two cases shall have been identical, and it is sufficient as to identity of parties if those by and against whom the defense is invoked in the later case were real parties at interest or privies as to the controversy in the former case. Thus the joining of another party, especially a merely nominal party having no interest in the subject-matter, in either the former or the later case, will not prevent a bar as to the same controversy as between real parties at interest or privies in both cases. See Chatman v. Hodnett, 127 Ga. 360 (3), 56 S. E. 439; 15 R. C. L. 1010, 1012, §§ 483, 485. Accordingly, the unnecessary joining in the former case, brought by the same plaintiff, of a third person or agent of the defendant corporation, which corporation is the sole defendant in the instant case, would not render the former controversy one between different parties, so as to take the case from within the operation of such a defense.

2. It is the general rule that, where a demurrer to a petition contains several grounds, some going to the merits and some special, and the court sustains the demurrer and dismisses the petition, there is no presumption that the ruling is based on the special grounds of the demurrer rather than the general, and the judgment will be treated as sustaining the entire demurrer on all the grounds. Sparks & Hutson v. Fort, 29 Ga. App. 531, 535, 116 S. E. 227. In the instant case it specifically appears from the petition itself as amended that a previous suit was brought in a justice's court "on the same cause of action." It also...

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