Ryan v. Pulghum

• Decision Date: 13 May 1895
• Citation: 22 S.E. 940,96 Ga. 234
• Parties: RYAN. v. PULGHUM. FULGHUM. v. RYAN.
• Court: Georgia Supreme Court

22 S.E. 940

96 Ga. 234

RYAN.

v.PULGHUM.

FULGHUM.

v.RYAN.

Supreme Court of Georgia.

May 13, 1895.

Motion to Dismiss—Revival — Practice on Appeal—Res Judicata—Dismissal by Plaintiff—Effect on Cross Petition.

1. The motion to dismiss the equitable petition of the plaintiff below, on the grounds that there was no equity in the petition, and that it set forth no cause of action, was properly sustained, although made ore tenus, and not until the trial term.

2. Where a bill of exceptions was brought to this court, and the defendant therein had sued out a cross bill of exceptions, and while both were pending here the plaintiff in error in the main bill of exceptions died, the effect of making his administrator a party plaintiff in error in that bill of exceptions was to make him a party defendant in error to the cross bill of exceptions.

3. A nonsuit in an action of ejectment does not conclude the plaintiff from subsequently asserting the same title in another action. Especially is this so where the first suit is brought by him in his individual right, and the second in his capacity as administrator of the estate of another.

4. Inasmuch as the defendant's answer, in the nature of a cross bill, alleged facts entitling him to independent and distinct equitable relief, the dismissal of the plaintiff's petition did not interfere with the defendant's right to a hearing and trial on the matters set up in his answer; and, this being so, it was error to dismiss the same.

(Syllabus by the Court,)

Error from superior court, Pulaski county J. J. Hunt, Judge.

Action by R. G. Fulghum against L. C. Ryan, administrator. To orders entered, bathparties bring error. Brought forward from the last term. Code, §§ 4271a-4271c. Affirmed on main bill of exceptions, and reversed on cross bill of exceptions.

L. C. Ryan and J. H. Martin, for plaintiff in error.

Jordan & Watson and W. L. Grice, for defendant in error.

ATKINSON, J. The plaintiff filed his petition against the defendant, alleging in himself a prescriptive title to the premises in dispute; alleging, further, that previous to the filing of his petition the defendant had instituted an action of ejectment against him for the recovery of the land In question, and, upon the trial of that case, had been nonsuited. He alleged that the defendant threatened to enter and take possession of the premises; was then making preparations to that end; was still claiming title to the premises; that his claim of title was fraudulent, and that he (the plaintiff) apprehended a serious Injury to himself unless restraining order would be granted. There was no allegation of the insolvency of the defendant. There was no Identification of the particular title deeds claimed by the plaintiff to be fraudulent. There was no allegation of any damage to the plaintiff. A restraining order issued. The defendant answered, admitting the former action, but, in explanation of the nonsuit granted thereunder, alleged that the suit was brought by him in his individual capacity against the plaintiff; that he bought the land from the former administrator of John Rainey, who was the true owner of the land; that by mistake the order authorizing the sale by said administrator was granted upon the same day that letters of administration were granted to him, and the sale was therefore void, leaving the title still in John Rainey; that he thereupon himself sued out letters of administration de bonis non upon the estate of John Rainey, and that he now claims the property by virtue of such administration, as the property or the estate of John Rainey. He alleged that no one was in possession of the premises until he himself took possession, and constructed thereon a small cabin. He denied that he was a trespasser, but claimed the rightful possession of the premises. As an amendment to this answer, he filed an additional answer, in the nature of a cross bill, in which he alleged that he was the true and lawful owner of the premises in dispute; that the plaintiff was himself insolvent, and that, pending the continuance of the restraining order granted upon the prayer of his original petition, the plaintiff had himself entered upon the premises, in defiance of the right of the defendant; was engaged in cutting and carrying away the wood and timber thereon, to the injury and damage of the defendant The case coming on to be heard, the plaintiff moved to strike the answer of defendant, upon the ground that the whole matter set up by the cross bill was res adjudicata, for that at a former term of the superior court of that county, which court had full, ample, and sole jurisdiction of the matter, the defendant had brought an action against the plaintiff for this particular piece of land; that the defendant, upon the trial of that case, had been nonsuited, and the judgment of nonsuit was conclusive in ...