Walden v. Walden

• Decision Date: 10 November 1905
• Citation: 52 S.E. 323,124 Ga. 145
• Parties: WALDEN et al. v. WALDEN.
• Court: Georgia Supreme Court

52 S.E. 323

124 Ga. 145

WALDEN et al. v. WALDEN.

Supreme Court of Georgia

November 10, 1905

Syllabus by the Court.

A verdict or other finding not followed by a judgment, will not serve as an estoppel by res judicata.

Objection to a plea insufficient in law may be made by motion to strike the plea, and this practice is to be commended; but the same result may be accomplished by objection to evidence which is offered in support of the plea.

Error from Superior Court, Jefferson County; H. M. Holden, Judge.

Action by W. M. Walden and others against William Walden. Judgment for defendant, and plaintiffs bring error. Reversed.

Roger & Stepens, for plaintiffs in error.

Cain & Hardeman, for defendant in error.

EVANS J.

This was a suit for land. The defendant filed a plea in abatement to the effect that he was the purchaser of the land under an execution sale, and that prior to the sale the plaintiffs had filed statutory claims to the levy of the fi. fa., and on the trial of the issue thus joined verdicts were rendered against the claimants, declaring the land subject to the lien of the fi. fa. By agreement of counsel the sole issue submitted was that raised by this plea. Upon the conclusion of the evidence the court directed a verdict for the defendant. Plaintiffs sued out a dire t bill of exceptions, complaining of rulings of the court on the admission of evidence, and that the evidence did not demand the verdict.

The plea in abatement was defective in substance as an estoppel by res adjudicata, in that it failed to allege that judgments were entered upon the verdicts returned in the claim cases but the plea was not attacked by demurrer on this or upon any other ground. In all other particulars the plea was sufficiently specific. The identity of the parties, the subject-matter, and pleadings in the claim cases were averred with ample elaboration. It appeared that the verdicts returned in the claim cases had been rendered at preceding terms of the court in which the present case was pending, and that the time for filing motions for new trial had expired. But, even though it was too late to move for a new trial, the verdicts could not, of themselves alone, be urged as an estoppel by res adjudicata. It has been ruled by this court as settled law that a verdict, not followed by a judgment will not serve as an estoppel, and that it is essential that a judgment be entered on the verdict before the parties will be concluded as to the matters in controversy. Carstarphen v. Holt, 96 Ga. 703, 23 S.E. 904; Mitchell v. Mitchell, 97 Ga. 795, 25 S.E. 385; Webster v. Mortgage Co., 93 Ga. 278, 20 S.E. 310; Harris v. Gano, 117 Ga. 934, 44 S.E. 11.

Good practice would require that the plaintiffs should take advantage of the fatal defect in the defendant's plea either by demurrer or by a motion to strike made...