Whitfield v. Maddox
| Decision Date | 15 March 1940 |
| Docket Number | 12993. |
| Parties | WHITFIELD v. MADDOX et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The jury returned a verdict sustaining a plea of res judicata, and a general judgment in favor of the defendant was entered. The plaintiff's motion for new trial was overruled. He excepted, assigning error on the judgment overruling his motion for new trial and on his exceptions pendente lite to the overruling of a demurrer to the plea. The motion to dismiss the writ of error on the grounds that it is premature, and contains no assignment of error on a final judgment, is denied.
2. A judgment rendered in favor of the defendant in a suit instituted by a widow for herself and in behalf of her minor child, to recover certain land, wherein she alleged that the same had been duly set apart to her and her child as a year's support, and that her deed to defendant was void because given in consideration of a pre-existing personal debt of her own, was not res judicata in a subsequent suit brought by the child after reaching majority against the same defendant, to recover the same land, wherein he claimed title thereto as an heir of the deceased. Nor was such judgment an estoppel against the plaintiff as to any material issue presented by the petition in the subsequent action.
R.F Chance and Joe M. Lang, both of Calhoun, for plaintiff in error.
R Carter Pittman, Swift Maddox, and Jack B. Ray, all of Dalton for defendants in error.
Mrs. Carrie Whitfield in behalf of herself and her then minor son, Byron Whitfield, brought suit to recover from her grantee a tract of land which had been set apart to her and her three minor children as a year's support out of the estate of Albert Whitfield. She alleged that her deed to the defendant to said land was executed in consideration of a pre-existing personal obligation of her own, having no relation directly or indirectly to the support of herself or her children, and that the deed was therefore void. A verdict in favor of the defendant was returned and judgment was entered thereon. This judgment was pleaded as res judicata to an action brought by Hubert, Carlton, and Byron Whitfield against the same defendant to recover the same property, wherein they claimed title to said property as sole heirs at law of Albert Whitfield, and alleged that the defendant claimed the property 'under some pretended right.' It was alleged that for approximately twenty years Mrs. Whitfield had failed to elect to take a child's part or to have dower assigned to her out of the estate (see Code, § 31-110, pars. 3, 4), and that there was no administration of said estate and no debts making administration necessary. Code, § 113-907. The plaintiffs in the latter suit were the three minor children who were beneficiaries of the year's support, although it appears that only Byron was named in the former suit brought by Mrs. Whitfield. The judge overruled a demurrer to this plea, and exception pendente lite was filed. The jury returned a verdict in favor of the defendant on the plea, and a general judgment was duly entered thereon in favor of the defendant. Since Byron Whitfield alone filed a motion for new trial and is the sole plaintiff in error in the bill of exceptions, we may consider the case as if the plea had been sustained only as to him. Upon reference to companion cases now pending in this court it in fact appears that this is what was actually done. See Whitfield v. Maddox, 189 Ga. 870, 8 S.E.2d 57.
After due consideration, we think that the demurrer should have been sustained and the plea stricken. 'Under the doctrine of res adjudicata, whenever there has been a judgment by a court of competent jurisdiction in a former litigation between the same parties, based upon the same cause of action as a pending litigation, the litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation.' Farmer v. Baird, 35 Ga.App. 208, 132 S.E. 260, 261; Code, § 110-501. The former action wherein the judgment pleaded by the defendant as res judicata was rendered was one instituted by Mrs. Whitfield for herself and in behalf of Byron Whitfield, to recover the property now sued for, wherein it was alleged that the property had been set apart to her and her three minor children (including Byron) as a year's support, and that a deed executed by her to the defendant was void for the reason that it was made in consideration of a pre-existing personal obligation of her own, having no relation, directly or indirectly, to the support of herself and the minor children. See Hill v. Van Duzer, 111 Ga. 867, 36 S.E. 966; Gibbs v. Land, 136 Ga. 261, 71 S.E. 136; Anders v. First National Bank of Barnesville, 165 Ga. 682, 142 S.E. 98; Redwine v Frizzell, 184 Ga. 230, 236, 190 S.E. 789. In that action Mrs. Whitfield sought a judgment cancelling her deed, and for possession of the property, based upon the title of herself and her minor child under a judgment setting it apart as a year's support. The title to property set apart as a year's support to a widow and minor children, vests absolutely in the widow and children. Code, § 113-1006; Miller v. Miller, 105 Ga. 305, 306, 31 S.E. 186. The whole title is, however, subject to the control and management of the widow for the benefit of...
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