Schoen v. Home Federal Sav. & Loan Ass'n of Atlanta, 66379
| Decision Date | 13 July 1983 |
| Docket Number | No. 66379,66379 |
| Citation | 307 S.E.2d 72,167 Ga.App. 644 |
| Court | Georgia Court of Appeals |
| Parties | SCHOEN et al. v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF ATLANTA. |
Fred A. Gilbert, Atlanta, for appellants.
Paul Oliver, Atlanta, for appellee.
This is a dispossessory action brought by the appellee against the appellants in the State Court of DeKalb County. In a previous appearance of the case, we held that the proceedings should have been abated pending the determination of a prior action brought by the appellants against the appellee in Fulton County Superior Court, attacking the appellee's title to the property in question. See Schoen v. Home Fed. Savings, etc., of Atlanta, 154 Ga.App. 68, 267 S.E.2d 466 (1980). The appellee subsequently prevailed in the Fulton County action and moved the DeKalb State Court both to issue a writ of possession and to disburse all rent previously paid by appellants into the court's registry. The DeKalb State Court granted both requests, re-adopting the findings of fact and conclusions of law which it had previously entered in conjunction with the prior, abated judgment.
On appeal, appellants assert that the court erred in re-adopting the findings of fact contained in its earlier order and that the appellee was barred by the doctrine of res judicata from seeking the rentals paid into the DeKalb Court registry. The latter argument is based on the contention that the claim for the rentals could and should have been made by counterclaim in the Fulton County action, wherein the appellants had sought to set aside a deed to one of the appellee's predecessors in title based on alleged fraudulent misrepresentations. Held:
1. A party must assert a counterclaim "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction." OCGA § 9-11-13(a) (Code Ann. § 81A-113). See P & J Truck Lines v. Canal Ins. Co., 148 Ga.App. 3, 251 S.E.2d 72 (1978). The broad test to be applied in determining whether a counterclaim is compulsory is whether a logical relationship exists between the respective claims asserted by the opposing parties. Myers v. United Services Auto. Assn., 130 Ga.App. 357, 203 S.E.2d 304 (1973); P & J Truck Lines, supra.
The appellants' Fulton County action sought cancellation of a warranty deed they had executed to Minter Financial Services in 1977. Minter had subsequently conveyed the property to Robert Smith, who in turn executed a deed to secure debt to Federated Financial Mortgage Corporation, which then assigned the security deed to the appellee. In the DeKalb State Court action, the appellee sought a writ of possession and recovery of the fair rental value of the property from the appellants for the period they had wrongfully refused to surrender the premises.
Even interpreting the terms "transaction or occurrence" broadly, we are unable to conclude that the relationship between these two claims was such that the appellee was required to assert its claims for possession and rent...
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