Worth v. Carmichael

• Decision Date: 06 February 1902
• Parties: WORTH v. CARMICHAEL. CARMICHAEL v. WORTH.
• Court: Georgia Supreme Court

40 S.E. 797

114 Ga. 699

WORTH

v.CARMICHAEL.

CARMICHAEL

v.WORTH.

Supreme Court of Georgia.

Feb. 6, 1902.

RES JUDICATA—ACTION ON NOTE—EVIDENCE —INSTRUCTIONS.

1. A judgment rendered in litigation between the same parties is not conclusive in a subsequent suit between them on a different cause of action except as to issues actually made and determined in the former litigation. Accordingly, where two notes were given upon a consideration arising in one and the same transaction, a judgment rendered in favor of the payee against the maker upon one of such notes did not operate to estop the latter from setting up, in a subsequent action brought by the former against him on the other note, a defense which was not in issue when the judgment was rendered.

2. There was ample evidence to authorize the charges complained of and to warrant the verdict found, and there was no error in refusing to grant a new trial. (Syllabus by the Court.)

Error from superior court, Wilcox county; D. M. Roberts, Judge.

Action by Worth & Worth against D. C-Carmichael and others. On the death of one plaintiff the case was stated in the name of B. G. Worth, surviving partner. Judgment for defendants. Plaintiff brings error, and defendants assigned cross error. Judgment on main bill of exceptions affirmed. Cross bill dismissed.

Thomson & Whipple, for plaintiff in error.

Eldridge Cutts and Hal Lawson, for defendants in error.

FISH, J. D. C. Carmichael, A. C. McLeod, and P. H. Emmett were accommodation in-dorers on a note given by William McQueen & Co. to Worth & Worth, as collateral for an acceptance of Worth & Worth in favor of McQueen & Co. Subsequently to their indorsement, these indorsers gave their two joint and several Individual notes to Worth & Worth in lieu of the note which they had indorsed. Worth & Worth brought suit in the county court against Carmichael upon one of these individual notes, to which he set up no defense, but confessed judgment, with a stay of execution. Subsequently the present suit was instituted upon the other individual note by Worth & Worth, in the superior court, against Carmichael, McLeoii. and Emmett. To this action Carmichael pleaded, in substance, that he was induced to give the note sued on in the present case and the one upon which judgment was obtained in the county court by false and fraudulent representations of Worth & Worth to the effect that Worth & Worth had been made preferred creditors in an assignment made by W^Tilliam McQueen, and that they would apply toward the payment of these notes whatever sums they should receive under the assignment; and that the defendant had been injured in thus being induced to give to the plaintiffs his note as principal in substitution of one upon which he was merely accommodation indorser. The case proceeding to trial in the name of B. G. Worth, surviving partner of Worth & Worth, a verdict was rendered in favor of the defendant. Plaintiff moved for a new trial, which motion being overruled he excepted.

1. Complaint was made in the motion for a new trial that the court erred in refusingto charge the Jury, at the request of counsel for the plaintiff, that: "Where two notes are given as part of the same transaction, and suit is entered upon one of the notes, and the defendant interposes no defense to said suit, and judgment is entered therein, the defendant is estopped to interpose a defense to a subsequent suit on the other of said series of notes, which, by the exercise of ordinary care and diligence, he might have known of, and have interposed and urged as a defense to the original suit." There was no error in refusing to give this request in charge, as the proposition contained therein is not the law. As the note sued on in the present case is a different cause of action from the note upon which judgment was obtained against the defendant in the...