Waller v. Morris

• Decision Date: 18 March 1949
• Docket Number: 32382.
• Parties: WALLER v. MORRIS.
• Court: Georgia Court of Appeals

52 S.E.2d 583

78 Ga.App. 821

WALLER v. MORRIS.

No. 32382.

Court of Appeals of Georgia, Division No. 2.

March 18, 1949

Wesley R. Asinof, of Atlanta, for plaintiff in error.

L D. Burns, Jr., of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

GARDNER Judge.

(a) R T. Morris, defendant in error here and plaintiff in the court below, whom we shall call the plaintiff, sued out in the Civil Court of Fulton County a laborer's lien against the property of Guy Waller, plaintiff in error here, defendant in the court below, whom we shall call the defendant. The laborer's lien specified an indebtedness owing to the plaintiff by defendant in the sum of $1,199.54. During the trial of this issue the plaintiff amended his claim for laborer's lien by claiming only $250. When this was done the defendant paid into court the sum of $250 in satisfaction of this proceedings. The plaintiff accepted this amount of $250 and the laborer's lien case was marked settled on the records of the court. The attorney for the plaintiff accepted this $250 in satisfaction of the laborer's lien claim. Thereafter, the plaintiff sued out an attachment claiming that the defendant was indebted to him in the sum of the difference between $1,199.54 and $250, to wit $954.54 The plaintiff duly filed his declaration in attachment and as an exhibit to his declaration filed an itemized statement to the effect that the defendant was indebted to him for parts and labor of his employees to the amount of the sum claimed in the declaration in attachment of $954.54, thereupon the defendant filed two defensive pleadings. The first one was what he termed a lis pendens, and second, a plea of estoppel. The Judge of the Civil Court of Fulton County presiding without the intervention of a jury, after hearing evidence from both sides, rendered a judgment in favor of the plaintiff for the amount claimed in the declaration in attachment. The defendant filed a motion for new trial which was overruled. To this judgment the defendant assigns error here.

(b) The defendant contends here that the court erred in its decision for the reason that the evidence demanded a judgment for the defendant. It is contended that the amount involved was one open account on contract indivisible; that the plaintiff testified that he treated the transaction as one open account and, therefore, the plaintiff could not divide this open account in two parts and obtain a judgment for a portion thereof and thereafter maintain an action for the balance. In support of this contention the defendant cites for our consideration Jones v. Schacter, 29 Ga.App. 132, 114 S.E. 59; Evans v. Collier, 79 Ga. 319, 4 S.E. 266; Chappell v. F. A. D Andrea, Inc., 47 Ga.App. 816 171 S.E. 582. These decisions are to the effect that 'all rights of the parties to a litigation which have accrued under a contract must be litigated and adjudicated in one action.' (Italics ours.) And, to the same effect counsel for the defendant called our attention to the case of Atlanta Elevator Company v. Fulton Bag & Cotton Mills, 106 Ga. 427, 32 S.E. 541, and also to Parks v. Oskamp, 97 Ga. 802, 25 S.E. 369, as well as Thompson v. McDonald, 84 Ga. 5, 10 S.E. 448, and the case of Rivers v. A. C. Wright & Company, 117 Ga. 81, 43 S.E. 499. Our attention has also been called by able counsel for the defendant to the case of Central Bank & Trust Company v. State, 139 Ga. 54, 76 S.E. 587. In this connection we are cited to Code section 20-1401 which says: 'If a contract be entire, but one suit can be maintained for a breach thereof; but if it be severable, or if the breaches occur at successive periods in an entire contract (as where money is to be paid by installments), an action will lie for...