Smith v. Smith

Decision Date23 March 1906
Citation125 Ga. 83,54 S.E. 73
PartiesSMITH. v. SMITH.
CourtGeorgia Supreme Court

Judgment—Res Judicata.

A judgment sustaining a general demurrer to a petition in an action at law brought in the superior court may be pleaded in bar to a petition praying for equitable relief, subsequently brought by the same plaintiff against the same defendant, alleging substantially the same facts as were set out in the petition in the former suit.

[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, § 996.]

(Syllabus by the Court.)

Error from Superior Court, Laurens County; H. G. Lewis, Judge.

Action by J. D. Smith against H. H. Smith. Judgment for defendant, and plaintiff brings error. Affirmed.

J. D. Smith brought an equitable petition against H. H. Smith, and alleged that the plaintiff and the defendant entered into a partnership on September 13, 1895, which continued until April 1, 1896, when by mutual consent the business ceased; that the defendant had never given the plaintiff his share of the profits earned, and that all notes, accounts, stock, and other property were left in the possession of the defendant. A receiver, an equitable accounting, judgment, dissolution of the partnership, and process were prayed for. The defendant filed a plea of res adjudicata, alleging that the same plaintiff had filed suit upon the same cause of action to the June term, 1901, of the same court, and that a general demurrer to the petition was sustained and the suit dismissed. By consent, the judge of the trial court passed upon the facts, sustained the plea of res adjudicata, and rendered judgment for the defendant. The plaintiff excepted.

Peyton L. Wade, Dessau, Harris & Harris, L. L. Guner, J. B. Sanders, C. A. Weddington, and Jas. K. Hines, for plaintiff in error. F

. G. Corker, Davis & Miller, and Hardeman & Jones, for defendant in error.

COBB, P. J. (after stating the foregoing facts). It is admitted by the plaintiff in error that substantially the same facts ate alleged in the present petition as were set up in the former suit, but it is contended that the first suit was an action at law, and the second an equitable action, and that a judgment sustaining a general demurrer to a petition in an action at law could not be pleaded in bar to a petition in a subsequent equitable action, although the cause of action is the same. The original petition in the first suit prayed for judgment and process. By amendment, the petitioner prayed that the defendant be compelled to account to him for his profits and interest in the...

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