Williams v. Richards, 37871
| Decision Date | 22 October 1959 |
| Docket Number | No. 1,No. 37871,37871,1 |
| Parties | Harold WILLIAMS v. Mrs. R.L. RICHARDS |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Neither the judgment of the trial court sustaining the plaintiff's plea of estoppel by judgment and striking the defendant's plea of nudum pactum and payment, nor any subsequent judgment was error for any reason assigned.
Mrs. R.L. Richards sued Harold Williams in the Civil Court of Fulton County to recover on a note signed by the defendant and dated February 7, 1957 which was allegedly past due and unpaid. The defendant filed an answer in which he sought to resist the claim of the plaintiff on the grounds of payment and nudum pactum, and to these defenses the plaintiff filed a plea of estoppel by judgment, relying on a prior pleaded judgment obtained against the defendant in another action against the defendant. On the trial of the issue made by the plaintiff's plea of estoppel by judgment, the court, hearing the issue without the intervention of a jury, found for the plaintiff and thereafter struck the defendant's pleas. Later on the trial of the main issue, the court, after sustaining the plaintiff's demurrers to the answer, directed a verdict for the plaintiff. The defendant assigns error on the final judgment adverse to him as well as on the controlling antecedent rulings.
John H. Hicks, Heyman, Abram & Young, Atlanta, for plaintiff in error.
Tindall & Tindall, Atlanta, for defendant in error.
If the plaintiff's plea of estoppel by judgment was properly sustained then no harmful error appears in the record as to the defendant, for, as stated by the plaintiff in error in his brief, "This bill of exceptions presents the following controlling question to be decided: Did the lower court err in sustaining the plaintiff's plea of estoppel by judgment and therefore err in dismissing the defendant's plea of payment and plea of nudum pactum?"
The writ of error, the exhibits attached thereto, and the record in the present case make it affirmatively appear that, approximately one year before the present action was brought, the plaintiff sued the defendant in another action to recover on a note, that the defendant, in that action, defended on the grounds of nudum pactum and payment, that the defendant sought to prove in the first action the same facts alleged in his pleas in the case sub judice, and that the jury, on the first trial, found for the plaintiff. The first action was on a note designated as "No. 2" and was due on February 7, 1958. The second, or present, action was on a note designated "No. 3" and was due on February 8, 1959. Each note was for $600 and under the pleas of the defendant in both actions were notes in a series.
" ...
To continue reading
Request your trial
-
Matter of Holt
...been involved. Code §§ 110-503, 110-504.\'" Morris v. Ga. Power Co., 65 Ga.App. 180, 187, 15 S.E.2d 730 (1941); Williams v. Richards, 100 Ga.App. 501, 502, 111 S.E.2d 632 (1959). "Upon the party setting up an estoppel by judgment rests the burden of proving it. Cit. It matters not how numer......
-
Usher v. Johnson, 60495
...been involved. Code §§ 110-503, 110-504.' " Morris v. Ga. Power Co., 65 Ga.App. 180, 187, 15 S.E.2d 730 (1941); Williams v. Richards, 100 Ga.App. 501, 502, 111 S.E.2d 632 (1959). "Upon the party setting up an estoppel by judgment rests the burden of proving it. (Cit.) It matters not how num......
-
Whitley Const. Co. v. Whitley, 50240
...(Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833).' Morris v. Ga. Power Co., 65 Ga.App. 180, 187, 15 S.E.2d 730; Williams v. Richards, 100 Ga.App. 501, 502, 111 S.E.2d 632. Code § 20-1401 provides: 'If a contract be entire, but one suit can be maintained for a breach thereof; but if it be sever......
-
King Sales Co. v. McKey, 39422
...Sumner, 186 Ga. 390 (197 S.E. 833)].' Morris v. Georgia Power Co., 65 Ga.App. 180, 187, 15 S.E.2d 730, 734. See also Williams v. Richards, 100 Ga.App. 501, 111 S.E.2d 632. The prior action between the plaintiff in the case sub judice and the finance company was not between the same parties ......