Sumner v. Sumner

• Decision Date: 14 May 1938
• Docket Number: 12232.
• Citation: 197 S.E. 833,186 Ga. 390
• Parties: SUMNER v. SUMNER.
• Court: Georgia Supreme Court

197 S.E. 833

186 Ga. 390

SUMNER v. SUMNER.

No. 12232.

Supreme Court of Georgia

May 14, 1938

Rehearing Denied June 25, 1938.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Suit by W. J. Summer against I. L. Sumner to set aside a divorce decree. To review a judgment dismissing the petition, the plaintiff brings error.

Judgment affirmed.

Syllabus by the Court.

1. A motion for new trial, made after the adjournment of the term under the Code, § 70-303, upon extraordinary grounds and newly discovered evidence not merely cumulative or impeaching in character, 'was intended, in a great degree, to take the place of a bill in equity for new trial,' although equitable petitions in the nature of bills of review, based upon such extraordinary grounds and a showing of due diligence, are not wholly supplanted by extraordinary motions. East Tennessee, etc., R. R. v. Whitlock, 75 Ga. 77, 82; Central Georgia Bank v. Iverson, 73 Ga 19, 23, 24; Norman v. Goode, 121 Ga. 449, 455, 49 S.E. 268; Apperson v. Mutual Fertilizer Co., 148 Ga 159, 161, 96 S.E. 260; Westberry v. Reddish, 178 Ga. 116, 122, 172 S.E. 10.

2. Under the doctrine of res judicata, 'a judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.' Code, § 110-501. A somewhat different rule applies in regard to the doctrine of estoppel by judgment, since the latter doctrine has reference to previous litigation between the same parties, based upon a different cause of action. In the latter case there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. Draper v. Medlock, 122 Ga. 234(1), 236, 50 S.E. 113, 69 L.R.A. 483, 2 Ann.Cas. 650; Callaway v. Irvin, 123 Ga. 344(4), 351, 51 S.E. 477; Worth v. Carmichael, 114 Ga. 699, 40 S.E. 797; Hardin v. Douglas, 168 Ga. 213, 147 S.E. 506; Irvin v. Spratlin, 127 Ga. 240, 55 S.E. 1037, 9 Ann.Cas. 341; Farmer v. Baird, 35 Ga.App. 208, 132 S.E. 260; Code, § 3-608. Under both rules, in order for the former decision to be conclusive, it must have been based, not merely on purely technical grounds, but at least in part on the merits where under the pleadings they were or could have been involved. Code, §§ 110-503, 110-504.

3. Under the preceding rules, where, after a final verdict and decree for divorce, an extraordinary motion for new trial is denied on the merits of the grounds, under conflicting evidence, such judgment precludes the movant from maintaining a subsequent equitable petition between the same parties to set aside the decree, based on substantially the same grounds as those contained in the former motion.

4. The court did not err in dismissing the petition on general demurrer invoking the defense of res judicata.

Statement of Facts by JENKINS, Justice:

In a suit by a husband for divorce, verdicts and a decree were rendered in his favor. After the adjournment of the term, the wife filed an extraordinary motion for new trial, alleging due diligence, and based on the grounds of newly discovered testimony and facts, fraud, and insanity of the defendant during the pendency of the case. The trial court, having before it this verified extraordinary motion and supporting affidavits of the movant wife, and the sworn response and denials and counter-affidavits of the respondent, entered the following judgment: 'After argument in the within motion for new trial and the response thereto, it is ordered and adjudged that the within extraordinary motion for new trial is hereby overruled and denied.' That judgment was affirmed by this court. Sumner v. Sumner, 183 Ga. 400, 188 S.E. 515. The syllabus and the opinion dealt particularly with the ground of insanity, which was especially relied on; and in the opinion it was said that 'several of the material affidavits the court need not to have considered at all, because the witnesses were not vouched for in accordance with the requirements of the Code, § 70-205.' It was then, however, said: 'As to the material questions at issue the testimony was in acute conflict. In these circumstances the credibility of the witnesses and the weight to be attributed to the testimony of each and all of them is a question solely addressed to the sound discretion of the trial judge, and the exercise of his discretion will not be interfered with where, as it appears in this case, there was no abuse of discretion.' It was further held, that, 'since it appears that there was no abuse of discretion in this case, the judgment overruling the motion for new trial must be affirmed.' After these adverse decisions, the wife filed the instant equitable petition to set aside the previous divorce decree, expressly alleging that her previous extraordinary motion set up 'in substance the same reasons why a new trial should be granted her as she sets up in this petition.' The record on the previous motion was made a part of the petition. It does not appear that in generally denying the motion the trial court did so upon any technical ground or any ground or reason other than those set forth in the motion and the present petition, based on substantially the same grounds. The court dismissed the petition upon general demurrer on the ground that the decision on the previous motion was res judicata.

Bussey & Fulcher, of Augusta, for plaintiff in error.

Isaac S. Peebles, Jr., of Augusta, for defendant in error.

JENKINS Justice.

The plaintiff contends that the previous denial of her extraordinary motion for new trial does not preclude her from now proceeding, because the merits of her grounds, although the same, have never been determined, for the reason that the trial court did not refer to 'any specific ground' or 'assign any particular reason' for its first decision, and because the decision of this court affirming that judgment (cited above) was based on the technical ground that 'the court need not have considered some of the affidavits attached to the motion.' It is contended that 'the issue presented by her extraordinary motion for new trial was confined to the sole question whether or not she presented such facts as to entitle her to have the merits of her case determined by a court of law,' and that she has never had opportunity for the merits of her case to be heard. It appears from the express averments of the instant petition and the record of proceedings on the former extraordinary motion that they contain substantially the same grounds. All of the grounds of theextraordinary motion and supporting affidavits and the counter-pleadings and affidavits of the respondent being before the court, the motion was denied generally, without assigning any particular ground or reason therefor. In the absence of any showing that the decision of the trial court could have rested on any merely technical ground, such decision must be taken as having determined the merits of the motion. Nor can it be said that the decision of this court, affirming the judgment of the trial court, was based only on a technical ground. While, as contended, the opinion refers to the technical insufficiency of ' several of the material affidavits' in support of the motion, the rest of the opinion and the syllabus plant the decision upon the merits of the case and the absence of any abuse of discretion by the trial judge. Among other grounds, insanity was especially stressed, and therefore it was said that 'the real basis of the extraordinary motion for new trial is the contention...