Salter v. Heys
| Decision Date | 14 February 1951 |
| Docket Number | No. 17353,17353 |
| Citation | 207 Ga. 591,63 S.E.2d 376 |
| Parties | SALTER v. HEYS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Though a person may be interested in the subject matter of a suit in the trial court, which renders a judgment favorable to his interest, he is not a necessary party defendant in a writ of error to this court which assigns error on such judgment, where such interested person was not a party to the suit in the trial court at the time the judgment complained of was entered.
2. The defendant's amendment, setting up a former judgment between the parties or their privies, was not subject to any of the objections urged by the plaintiff.
3. Where a defendant files a plea of res adjudicata, he assumes the burden, and must show the truth to the court and jury; and where there is nothing in the record to show any admission by the plaintiff of the truth of the plea, the trial court could not, without proof, take judicial cognizance of the former judgment in another case between the parties and enter an order sustaining the plea and dismissing the case.
The exception here is to a judgment sustaining the defendant's plea of res adjudicata and dismissing the case.
The petition as amended was a suit in equity, filed by Mrs. Josephine Salter on February 25, 1950, against Z. A. Littlejohn, Marshal of the City of Americus, S. R. Heys, as administrator of the estate of Arthur B. Salter, and Mrs. W. R. Drane, in three counts, wherein she sought: to set aside and cancel certain tax deeds executed by the city marshal, conveying a life interest of the plaintiff in certain real estate; for a declaration of the right of the plaintiff to redeem the property; for a decree setting aside, on the ground of fraud, certain provisions of a court decree in favor of Arthur B. Salter, now deceased; and for other equitable relief, as well as to set aside a deed from Mrs. W. R. Drane to Arthur B. Salter.
The defendants, S. R. Heys, administrator, and Littlejohn, city marshal, filed answers to the petition, and on October 27, 1950, the defendant Heys filed an amendment to his answer, in which he alleged that all the matters and issues sought to be raised in this action had been fully adjudicated and final judgment rendered in Sumter Superior Court on June 29, 1942, in a suit by A. B. Salter against the plaintiff in this case, and that all the claims involving the property in question were settled between the parties; and he prayed that the instant suit be dismissed. Attached to this amendment were copies of a petition, answer, verdict and decree in such former action. The plaintiff filed written objections to this amendment, which were overruled on October 27, 1950. Without any evidence being introduced by either party, the trial court on the same day passed an order sustaining the defendant's plea of res adjudicata and dismissing the case.
R. L. Maynard, Charles Burgamy, Americus, for plaintiff in error.
H. B. Williams and Fort & Fort, Americus, for defendant in error.
1. The defendant in error, S. R. Heys, as administrator of the estate of Arthur B. Salter, has filed a motion to dismiss the writ of error because Mrs. Arthur B. Salter and Harry Kent Salter, heirs at law of Arthur B. Salter, are not parties to the writ of error; and the defendants in error being only nominal parties and having no substantial interest in the subject matter of the litigation, a decision in this case would settle nothing as to the absent parties. The record shows that Mrs. Arthur B. Salter and Harry Kent Salter, though originally parties to this suit, were stricken from the case by the plaintiff before the court entered its order sustaining the plea of res adjudicata and dismissing the case.
Though a person may be interested in the subject matter of a suit in the trial court, which renders a judgment favorable to his interest, he is not a necessary party defendant to a writ of error to this court which assigns error on such judgment, where such interested person was not a party to the suit in the trial court at the time the judgment complained of was entered. Denny v. Commercial Credit Co., 157 Ga. 702(1), 121 S.E. 832. The two defendants named, having been stricken, could not properly be made parties to the writ of error. Adams v. Georgia Ry. & Electric Co., 142 Ga. 497, 83 S.E. 131. The judgment complained of is the order sustaining the plea of res adjudicata filed by the administrator. The interest of the administrator of the estate of Arthur B. Salter, in upholding the judgment in his favor, is not that of a nominal party defendant. The motion to dismiss is denied.
2. A plea of res adjudicata, as against a general demurrer, is sufficient where it alleges that the same issues have been actually litigated and determined in a prior action between the same parties or their privies. Phillips v. Hightower, 190 Ga. 785(2), 10 S.E.2d 854; Carten v. Loveless, 192 Ga. 715, 16 S.E.2d 711. Such plea, being in the nature of a plea in bar and not a dilatory plea, need not be filed at the first term or on the appearance day of the case, Hill v. Cox, 151 Ga. 599, 107 S.E. 850; and the fact that the plea was set up by way of amendment to an answer and not only by a separate and independent pleading does not render it subject to objection. It is not required that all the parties on the respective sides of litigation of the two cases must have been the same, but it is sufficient, as to the identity of the parties, if those by and against whom the defense of res adjudicata is invoked in the later case were real parties at interest or privies to them as to the controversy in the former case. Crider v. Harris, 183 Ga. 695, 189 S.E. 519; Mitchell v. Turner, 190 Ga. 485, 9 S.E.2d 621; Darling Stores Corp. v. Beatus, 199 Ga. 215(3), 33 S.E.2d 701. It is not a valid objection to the allowance of an amendment setting up a plea of res adjudicata that a portion of the judgment sought to be pleaded as a bar in the...
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