Response to Order of October 11, 1984
Public Court Documents
October 19, 1984
Cite this item
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Case Files, McCleskey Background Materials. Third Habeas Petition (Multiple Courts) Vol. 1 of 2, 1991. 8b81d3d8-5aa7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/52411ae4-5b74-4964-bf8a-976b3e9ad4fd/third-habeas-petition-multiple-courts-vol-1-of-2. Accessed August 19, 2025.
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IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY, * CIVIL ACTION NO.
Petitioner, * 91-V-3669
%
vs. *
WALTER D. ZANT, Warden,
Georgia Diagnostic &
Classification Center,
Respondent.
HABEAS CORPUS
*
%
*
*
PETITIONER'S MEMORANDUM OF LAW
IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS
COMES NOW petitioner Warren McCleskey, by his undersigned
counsel, and files this memorandum of law in opposition to
respondent's Motion to Dismiss, dated July 5, 1991. As we will
demonstrate, respondent's motion is legally insufficient and
should be denied, for three reasons:
(1) First, as a matter of law, respondent relies on
principles of res judicata that do not avail him. Under settled
Supreme Couri precedent, gee, e.g. Smith v. Zant, 250 Ga. 645,
652, 301 S.E.2d 32,37 1983). cf. Nelson v, Zant, Ga. (No.
9120524) (June 25,1991), res judicata has no application to this
case. Petitioner's constitutional claim is based on newly
available evidence that was withheld from him by State actors at
the time of his previous applications. The Supreme Court has
unmistakably affirmed the right of an applicant to bring forward
such a claim, even on a successive application:
The defendant has a right to rely on the accuracy of
the trial testimony of the state's witness where the
truth or falsity of his testimony is peculiarly within
the knowledge of the state and the state is under a
duty to reveal false testimony. Thus, we find
unpersuasive the state's argument that the defendant
should have discovered the state's breach of duty.
Smith v. Zant, 250 Ga, at 652.
(ii) Second, as a matter of fact, respondent's motion to
dismiss depends on grounds that are irrelevant or untimely.
Respondent's twin factual arguments appear to be (a) that
petitioner's evidence is not "newly available," but was instead
readily discoverable in 1987 or earlier, and (b) that the
totality of petitioners's evidence does not suffice to prove a
violation of Massiah v. United States, 377 U.8. 201 (1964).
Smith v. Zant dictates petitioner's burden of proof in responding
to respondent's first argument. Under O0.C.G.A. § 9-14-51,
petitioner need only tender well-pleaded allegations that State
officials, although aware of the underlying misconduct petitioner
now complains Of, failed To reveal if at trial or in initial
state habeas proceedings. Petitioner in this case proffers
exactly the proof of State concealment that Smith requires.
Respondent's second factual argument -- that the record
facts do not suffice make out a Massiah violation -- is clearly
an attack on the merits of petitioner's claim. Georgia law
clearly provides that motions to dismiss are not a proper vehicle
for resolution of the merits. See, e.g., Dean v. Dean, 229 Ga.
612, 614, 193 S.E.2d4 838, 840 (1972) (when "concerned with the
sufficiency of the allegation of the habeas corpus petition vid
the motion to dismiss . . . should not be granted unless it
appears to a certainty that the plaintiff would be entitled to no
relief under any state of facts which could be proved in support
2
of the claim . . . "); gee also Hardy v. Jones, 244 Ga. 132, 133,
35086. 8.3d4 73; 74 (1979): Almarcad v. Clles, 230 Ga. 473, 197
S.E.24 706 (1973): Mitchell v. Dickev, 226 Ga. 218, 220,173
S.E.2d4 695, 697 (1970); Bourn Vv. Herring, 225 Ga. 67,70, 166
S.E.24 89,93 (1969).
Since petitioner's well-pleaded allegations -- supported by
sworn transcripts and affidavits -- allege a classic violation of
Massiah and United States v. Henry, 447 U.S. 264 (1980),
respondent's motion to dismiss must be denied. A final decision
on the merits must abide the development of a full factual
record.
(iii) Finally, respondent's claim that any Massiah claim
was "harmless error" likewise depends upon this Court's
consideration of a full factual record that has not yet been
placed before the Court. What is clear, at present, is that
United States District Judge J. Owen Forrester -- the one judge
in this case who has heard the relevant witnesses -- found that
[o]lnce the fact of the Massiah violation in this case
is accepted, it is not possible to find that the error
was harmless. A review of the evidence presented at
the petitioner's trial reveals that [informant Offie]
Evans' testimony about the petitioner's incriminating
statements was critical to the state's case. There
were no witnesses to the shooting and the murder weapon
was never found. The bulk of the state's case against
the petitioner was three pronged: (1) evidence that
petitioner carried a particular gun on the day of the
robbery that most likely fired the fatal bullets; (2)
testimony by co-defendant Ben Wright that petitioner
pulled the trigger; and (3) Evans' testimony about
petitioner's incriminating statements. As petitioner
points out, the evidence on petitioner's possession of
the gun in question was conflicting and the testimony
of Ben Wright was obviously impeachable. . . . Because
the court cannot say, beyond a reasonable doubt, that
3
the jury would have convicted petitioner without Evans’
testimony about petitioner's incriminating statements,
petitioner's conviction for the murder of Officer
Schlatt must be reversed pending a new trial.
St. Hab. Pelt.,, Exh.” D, 29~31.
In addition, sworn affidavits from two of McCleskey's twelve
trials now confirm Judge Forrester's finding. These jurors aver
without hesitation that : (i) Offie Evans was the key witness to
the identity of the murderer; (ii) the jury's based its death
sentence largely on Evans' testimony; (iii) the jurors' reliance
on Evans stemmed from his apparent role as a disinterested
witness; (iv) had Offie Evans' secret relations with the police
been disclosed, at least two jurors would never have voted to
convict McCleskey of malice murder; and (v) moreover, these
jurors would have held fast against imposition of a death
sentence. Given this ors testimony from the jurors
themselves, there is no need to rely on second-hand speculations
from persons who weren't there. Jurors who heard and decided the
case assure us that the State's use of Evans' testimony, far from
"harmless error," was the master stroke that sent McCleskey to
Death Row.
XI.
SINCE STATE ACTORS PREVIOUSLY WITHHELD
CRUCIAL EVIDENCE OF THEIR OWN
UNCONSTITUTIONAL CONDUCT, THE CONTROLLING
GEORGIA PRECEDENTS NOW REQUIRE THIS COURT TO
HEAR PETITIONER’S PRESENT CHALLENGE ON ITS
MERITS =-- DESPITE HIS PRIOR HABEAS
APPLICATIONS AND WITHOUT ANY RES JUDICATA BAR
Respondent's principal legal argument is a simple one:
"[U]lnder the principles of res judicata, this Court should
decline to review (petitioner's) issue." (Resp. Br. 1).' At
first glance, the controlling statute, 0.C.G.A. § 9-14-51,
appears to support respondent. It provides:
All grounds for relief claimed by a petitioner for a
writ of habeas corpus shall be raised by a petitioner
in his original or amended petition. Any grounds not so
raised are waived. . . .
However, the statute does not stop with a general
declaration of waiver, but goes on to create two important
exceptions to the general rule. It requires dismissal UNLESS:
[3] +. +i. the Constitution of the United States 'or of
this state otherwise requires or [ii] unless any judge
to whom the petition is assigned, on considering a
subsequent petition, finds grounds for relief asserted
therein which could not reasonably have been raised in
the original or amended petition.
The meaning of the second exception -- requiring a state
habeas court to entertain the merits of any claim "which could
not reasonably have been raised" -- was authoritatively
! Each reference to respondent's Motion to Dismiss and
Brief in Support, dated July 5, 1991, will be indicated by the
abbreviation "Resp. Br." followed by the number of the page on
which the reference may be found.
5
interpreted by the Supreme Court of Georgia in Smith v. Zant, 250
Ga. 645, 301 S.E. 2d 32 (1983). This Court should closely examine
the circumstances in Smith, since they are nearly identical to
those at issue here.
John Eldon Smith, a death-sentenced Georgia inmate,
unsuccessfully sought state habeas corpus relief in 1977. Six
years later, in 1983, his federal claims exhausted, Smith
returned to the state habeas courts and asserted additional
constitutional claims, including a claim based upon newly
discovered evidence. He alleged that the prosecuting attorney
and a key State witness had made a deal, in violation of Giglio
v. United States, 405 U.S. 150 (1972), and Napue V. Illinois, 360
U.S. 264 (1989). See Smith v. Zant, 250 Ga. at 645-646; 14. at
650.2
Although Smith's 1983 petition was summarily dismissed by
the Superior Court, the Georgia Supreme Court granted Smith's
application for a certificate of probable cause. Following oral
argument, the Supreme Court affirmed the dismissal of most of
Smith's claims under 0.C.G.A. § 9-14-51. .Id., 280 Ga. at. 646.
However, Chief Justice Hill, writing for a unanimous Court,
remanded Smith's claims under Giglio and Napue, directing a full
hearing on their merits.
2
Smith had alleged in his second application that, in
1982, the defense team had obtained an admission from the
attorney who prosecuted Smith's case that he had failed to
disclose a pre-trial promise of leniency made to a key State's
witness. The witness had denied, during cross-examination at
trial, any such relationship. Smith v. Zant, 250 Ga. at 648-
550,
In granting Smith a full hearing, the Court brushed aside
the State's defense -- the same defense now asserted by the State
in McCleskey's case -- that Smith's defense attorneys should have
uncovered any alleged State misconduct earlier. The Court's
analysis is quoted in full:
The state did not meet petitioner's false
testimony claim on its merits, but defended
on the ground of waiver, contending that,
with due diligence, the defense could have
ascertained the necessary information, and
thus that the grounds for relief could
"reasonably have been raised in the original
or amended petition." OCGA § 9-14-51 (Code
Ann. § 50-127), supra. The state urges that
when, shortly after the trials, [the State's
witness] in fact pleaded guilty in exchange
for a life sentence, Smith and his lawyers
should have made further inquiry of [the
witness] and his attorney. This was not
done. Nor has the state shown that [the
State's witness] would have admitted his
alleged perjury had he been asked by defense
counsel.
The state's argument overlooks the thrust of
Navue v. Illinois . . . and Giglio v, United
States. It is not so much that [the State's
witness] testified falsely, but that the
state, by allowing this knowingly false
statement to stand uncorrected deprived the
defendant of a fair trial. Since the
prosecution has the constitutional duty to
reveal at trial that false testimony has been
given by its witness, it cannot, by failing
in this duty, shift the burden to discover
the misrepresentation after trial to the
defense. The defendant has a right to rely
on the accuracy of the trial testimony of the
state's witness where the truth or falsity of
his testimony is peculiarly within the
knowledge of the state and the state is under
a duty to reveal false testimony. Thus, we
find unpersuasive the state's argument that
the defendant should have discovered the
state's breach of duty. As was said in
Williams v. State, 250 Ga. 463 at 466, 298
S.E. 24 492 (1983): "The state urges that
7
the defendant should have done more than he
did to protect himself. We find that the
state should have done more than it did to
protect the defendant's rights." See also
Price v. Johnston, 334 U.S. .266 (1948).
We, therefore, hold that Smith has alleged
facts, supported by affidavits, sufficient to
satisfy the requirements of OCGA § 9-14-51
(Code Ann. § 50-127), to entitle him to a
hearing on the merits of his false testimony
claim; i.e., petitioner has shown grounds for
relief which could not reasonably have been
raised in his original habeas petition. The
habeas court erred in dismissing Smith's
Napue-Giglio claim, and we remand this case
for a hearing on the merits of this issue.
Smith v. Zant, 250 Ga. at 651-652. (Emphasis added).
Petitioner McCleskey's present habeas petition, like John
Smith's successive petition, depends upon a prior State cover-up
of an unconstitutional conspiracy. Specifically, McCleskey has
proof that Atlanta police officers conspired with a jailhouse
informant, Offie Evans, to procure incriminating admissions from
McCleskey. The conspiracy unfolded as planned: Evans first
spoke with cellmate McCleskey and then, called by the State as a
key witness against petitioner McCleskey during his 1978 trial,
used the purported fruits of his secret interrogation to name
McCleskey as the triggerman in the crime. (See St. Hab. Pet. 44
32-37.)° The Atlanta police officers involved, as part of the
State's prosecutorial team, were obligated to disclose their
® Each reference to the Petition for a Writ of Habeas
Corpus, filed by petitioner as an appendix to his Application for
a Writ of Habeas Corpus, dated June 13, 1991, will be indicated
by the abbreviation "St. Hab. Pet." followed by the number of the
page on which the reference will be found.
8
misconduct to the defense.’ Instead, they lied, and permitted
Evans to lie, in order to obtain McCleskey's conviction.
The teaching of Smith v. Zant is that McCleskey and his
counsel were entitled to presume that State witnesses told the
truth. In addition, they were entitled to rely upon the express
assurance by the prosecutor that no illegal informant
relationship marred the State's case. The prosecutor gave such
an express assurance in this case, in 1981, during a deposition
later admitted into evidence during petitioner's initial state
habeas proceedings in this Court:
: The United States Supreme Court has traditionally
imputed the misconduct of any member of the prosecution team to
the State itself. See, e.dg., Mooney v. Holohan, 294 U. S. 103
(1938); Bradv v. United States, 3730.8. 83 (19263). The good
faith of some State actors cannot excuse the bad faith of others.
Especially is this true when Sixth Amendment claims are under
consideration. As Justice Stevens explained in Michigan v.
Jackson, 478 U. 8. 6258, 634 (1986),
Sixth Amendment principles require that we impute the
State's knowledge from one state actor to another. For the
Sixth Amendment concerns the confrontation between the State
and the individual.
See also Gigllo v. United States, 408 U. 8. 180, 154 (1972):
Santobello vv. New York, 404 U.S. 257, 262 {1971); Cf. United
States vv. Bagley, 473 U.. 8S. 667, 671 & n.4 (1986).
The lower federal courts have regularly applied this rule to
police misconduct of the sort at issue here. See, e.g., Freeman
¥: State of Georgia, 599 F.2d 65, 69-70 (8th Cir. 1979) ("We feel
that when an investigating police officer willfully and
intentionally conceals material information, regardless of his
motivation and the otherwise proper conduct of the state
attorney, the policeman's conduct must be imputed to the state as
part of the prosecution team"); Barbee v. Warden, 331 F.2d 842
(4th Cir. 1964) ("The police are also part of the prosecution,
and the taint on the trial is no less if they, rather than the
State's Attorney, were guilty of the nondisclosure. . . .");
Schneider v. Estelle, 552 F.24 593 (5th Cir. 1971): Jackson v.
Wainwright, 390 F.24 288, 296 (5th Cir. 1968): Curran. v. State of
Delaware, 259 F.24 707, 713 (34 Cir. 19538),
g
Q. [Defense Counsel]: Okay. Were you aware at the time of
the trial of any understandings between Evans and any
Atlanta police department detectives regarding favorable
recommendation [sic] to be made on his federal escape charge
if he would cooperate with this matter?
A. [Assistant District Attorney]: No, sir.
Q. Let me ask the question another way to make sure we
are clear. Are you today aware of any understanding
between any Atlanta police department detectives and
Offie Evans?
A. No, sir, I'm not aware of any.
(Parker Dep., 9-10).
On cross-examination, the Assistant District Attorney
broadened his testimony:
Q. Do you have any knowledge that Mr. Evans was
working as an informant for the Atlanta Police or any
police authorities when he was placed in the Fulton
County Jail and when he overheard these conversations
of Mr. McCleskey?
A. I don't know of any instance that Offie Evans had
worked for the Atlanta Police Department as an
informant prior to his overhearing conversations at the
Fulton County Jail.
(Parker Dep. 14-15).
Under Smith v. Zant, petitioner McCleskey thus has two
separate bases for his present entitlement to be heard on the
merits of his Magsiah claim: (i) first, he relied on the State's
failure to disclose the Massiah violation when Offie Evans
testified during petitioner's 1978 trial; and (ii) second, he
relied on the prosecutor's denial of any Massiah violation during
his 1981 deposition.” These misrepresentations, together with
> It is, of course, immaterial whether prosecutor Russell
Parker himself knew about the Massiah violation. As indicated
above, see note 4, when he spoke, the law imputes to him the
10
petitioner's justifiable reliance upon them, excuse petitioner's
failure to have brought forward evidence of State misconduct
earlier. They squarely meet the terms of 0.C.G.A. § 9-14-51's
second exception, as interpreted in Smith v. Zant: the "grounds
for relief asserted therein . . . could not reasonably have been
raised in the original or amended petition."
II
THE FACTS ASSERTED BY THE RESPONDENT DO NOT
ENTITLE HIM TO A DISMISSAL OF PETITIONER’S
APPLICATION. AT MOST, THEY PRESENT DISPUTED
ISSUES WHICH SHOULD BE RESOLVED ONLY AFTER
FULL CONSIDERATION OF THE MERITS
As noted above, respondent launches two factual arguments in
his motion to dismiss. We will treat them in turn.
A. Respondent’/s Assertion That Petitioner should
Have Discovered The State’s Misconduct
Earlier Is Irrelevant Under Georgia Law. It
Is Also Factually Incorrect, As The Federal
District Court Found
l. The 21-Page Statement -- Respondent begins by
complaining that "[p]etitioner has failed to establish exactly
what newly discovered facts would justify this Court's re-
litigation of this issue and what facts he contends are newly
discovered." (Resp. Br. 10). Offie Evans’ 2l1-page written
statement, given to Atlanta police in August of 1978, is not
"new," respondent notes; petitioner had uncovered the statement
(no thanks to the prosecution or the State Attorney General's
knowledge of the entire prosecution team, including the
unquestionably knowledgeable participants in the police
conspiracy.
11
Office) by 1987, when petitioner's second state application was
filed. (Id.: gee also Ad. at 12-13).
Petitioner's claim, however, does not depend upon the 21-
page statement alone, but upon the carefully concealed story of
the Massiah violation which first came tumbling out of the mouths
of various witnesses, inadvertently, during a federal evidentiary
hearing in July of 1987 -- only after McCleskey's second state
application had been summarily dismissed. Turning to these
witnesses, respondent bundles together a handful of half-truths
and misrepresentations by insisting that "all . . . were readily
available at any time to testify." (Resp. Br. 10).
2. The Police Witnesses -- The police officers involved
in the conspiracy -- Sidney Dorsey and, perhaps, Welcome Harris -
- were doubtless "available" in 1987. Indeed, petitioner
actively sought a state habeas hearing to put them under oath.
By summarily granting the State's 1987 motion to dismiss,
however, this Court deprived petitioner any meaningful
opportunity to obtain their testimony.
Moreover, as Judge Forrester found after listening to their
testimony in federal court, these police witnesses in 1987 were
actively covering up the Massiah violation and their own
involvement in it: "Unfortunately, one or more of those
investigating Officer Schlatt's murder stepped out of line.
Determined to avenge his death the investigator (s) violated
clearly-established case law." (St. Hab. Pet., Exh. D, 31).
"Detective Dorsey," Judge Forrester observed, "had an obvious
12
interest in concealing any [Massiah] arrangement" (St. Hab.
Pet., Exh. E, 10); and this "complicated scheme . . . required
Evans and any officers involved to lie and lie well about the
circumstances," (st. Hab. Pet, 21).
For these reasons, Judge Forrester rejected any possibility
that petitioner could have obtained proof of the Massiah
violation by means of an informal interview with Detectives
Harris, Dorsey or the other detectives:
The state argues that petitioner's counsel should have
at least interviewed Detectives Harris and Dorsey and
Deputy Hamilton. Given that all three denied any
knowledge of [the details of the conspiracy to violate
Massiah] . . . it is difficult to see how conducting
such interviews would have allowed petitioner to assert
this claim any earlier.
{Sts Hab.,PelL., Exh. D, 25).
3. Offie Evans -- Respondent also faults McCleskey's
counsel for alleged failure to interrogate Offie Evans: "Mr.
Evans . . . testified before this Court in 1881, but was not
asked whether he had been moved or placed in a jail cell as an
agent for the State. Thus, Petitioner simply failed to pursue
that line of questioning." (Resp. Br. 11). Respondent's
assertion is false. Defense counsel Stroup pursued an entire
line of questioning on these issues, asking Offie Evans under
oath when he had been placed in solitary confinement at the
Fulton County Jail (1987 St. Hab. Tr. 116), whether there was a
"special reason" he had been put into solitary confinement (id.
116-117), whether he had been placed adjacent to the cell of
Warren McCleskey (id. 117), the identity of the investigators and
13
police officers who had spoken with him, when those conversations
with police had occurred (id. 117-118), whether he had been
promised anything in exchange for his testimony against Mr.
McCleskey (id., 122), and whether he had subsequently given
testimony against any other inmates in other cases. (Id. 126-
127).
Informant Evans, in response, never disclosed that he had
been moved from another cell to the cell adjacent to McCleskey's,
or that he had been asked by Atlanta detectives secretly to
interrogate Mr. McCleskey, or that he had agreed to do so, or
that he had subsequently given a 21-page written statement to
Atlanta investigators.
4. Ulysses Worthy -- Finally, respondent faults petitioner
for not locating jailor Ulysses Worthy prior to McCleskey's 1987
state habeas application. During the 1987 federal hearing,
Worthy -- a retired jailor at the Fulton County Jail -- proved to
be a key witness concerning the Massiah violation. Jailor Worthy
testified that he had overheard Atlanta police detectives as they
met with informant Offie Evans, in Worthy's office at the jail,
during July of 1978. In Worthy's presence, the officers coached
Evans concerning his secret interrogation of McCleskey. According
oe Worthy, Detective Sidney Dorsey (or perhaps another "officer
on the case") "asked Mr. Evans to engage in conversations with
McCleskey who was being held in the jail." To set up Evans'
questioning, these officers asked jailor Worthy to move Evans
from another part of the jail to a cell next to McCleskey. Judge
14
Forrester himself questioned jailor Worthy on the essential
points:
THE COURT: But you're satisfied that those three things
happened, that they asked to have him put
next to McCleskey, that they asked him to
overhear McCleskey, and that they asked him
to question McCleskey.
THE WITNESS: I was asked can -- to be placed near
McCleskey's cell, I was asked.
THE COURT: And you're satisfied that Evans was asked to
overhear McCleskey talk about this case?
THE WITNESS: Yes, sir.
THE COURT: And that he was asked to kind of try to draw
him out a little bit about it?
THE WITNESS: Get some information from him.
Judge Forrester ultimately found that "one or more of those
[who were] investigating Officer Schlatt's murder" {St. Hab.
Pet., Exh. D, 31) requested Captain Ulysses Worthy to move
informant Evans to the cell adjacent to Mr. McCleskey. Next, the
officers instructed informant Evans to "get some information"
from Mr. McCleskey about Officer Schlatt's homicide (St. Hab.
Pet., Exh. .D, 21-23):
[Evans] was moved, pursuant to a request approved by
Worthy, to the adjoining cell for the purpose of
gathering incriminating information; Evans was probably
coached in how to approach McCleskey and given critical
facts unknown to the general public; Evans engaged
McCleskey in conversation and eavesdropped on
McCleskey's conversations with [co-defendant Bernard]
DuPree; and Evans reported what he had heard . . . to
Assistant District Attorney Parker. .
i5
(St, Hab. Pet., Exh. D, 235.2
Respondent suggests that, in light of Worthy's potentially
explosive testimony, McCleskey should now be faulted for failure
to have called him earlier:
Detective Harris freely mentioned the name of Captain
Ulysses Worthy when asked in the federal district court
proceeding. Petitioner has never indicated that he
attempted to contact Mr. Worthy or that he was
prevented from doing so in any fashion.
(Resp. Br. 11). This suggestion, however, is a triumph of
hindsight. In 1987, there was no visible thread connecting
Ulysses Worthy (by then, long-retired as a jailor, working in
obscurity at Morehouse College) to McCleskey's case. Neither
his name nor his role had ever been mentioned by anyone. He
played no known role in the police investigation. He had assumed
no special responsibility for McCleskey, and in 1978, had been
® In light of these and other comprehensive findings by
Judge Forrester on all aspects of the Massiah claim, we are
frankly baffled by respondent's unsupported declaration that
"there has never been any finding of a coverup or police
misconduct regarding any statement of Offie Evans." (Resp. Br.
5). See, e.g, St. Hab. Pet., Exh. D, 21, 28:
[T]he use of Evans as McCleskey alleges . . . developed
into a complicated scheme to violate McCleskey's
constitutional rights -- its success required Evans and
any officers involved to lie and lie well about the
circumstances. . . . Given the facts established
earlier, petitionr has clearly established a Massiah
violation here. It is clear from Evans' written
statement that he did much more than merely engage
petitioner in conversation about petitioner's crimes.
As discussed earlier, Evans repeatedly lied to
petitioner in order to gain his trust and to draw him
into incriminating statements. Worthy's testimony
establishes that Evans, in eliciting the incriminating
statements, was acting as an agent of the state.
16
but one of hundreds of jailors working in the Fulton County Jail
during McCleskey's incarceration there.
only when Detective Harris was cross-examined under oath
about the 2l1-page statement of Offie Evans did Worthy's name
surface. Asked by defense counsel Stroup where the 21-page
statement had been taken, Detective Harris grudgingly mentioned
"a room [at the Fulton County Jail] that was occupied by a
captain, and I don't think -- he's no longer employed out there,
I think his name is Worthy." Pressed on whether jailor Worthy
had been present during the interview, Detective Harris hedged:
"No, sir. I'm sure he wasn't, you know." Suspicious of
Detective Harris' answer, defense counsel promptly located and
subpoenaed Worthy.
After fully considering both Worthy's obscurity and the
concerted police effort to hide his role, Judge Forrester
concluded that
counsel's failure to discover . . . Worthy's testimony
. . . was not inexcusable neglect. .
Petitioner's counsel represents, and the state has not
disputed, that counsel did conduct an investigation of
a possible Massiah claim prior to the first federal
petition, including interviewing "two or three
jailers." . . . The state has made no showing of any
reason that petitioner or his counsel should have known
to interview Worthy specifically with regard to the
Massiah claim.
(St. Hab, Petr., Exh. D, 25).
In sum, McCleskey now comes before this Court with new and
important evidence obtained since his 1987 state habeas filing.
This evidence was previously hidden by State actors, and could
not reasonably have been obtained by petitioner through informal
17
investigation. It emerged only during the federal hearing in
1987. Under Smith, it should be heard on its merits.
B. A Motion To Dismiss Is An Inappropriate
Vehicle For Adjudication Of The Merits Of
Petitioner’s Claim
Although respondent confesses that "no court actually
directly reversed the factual findings" of Judge Forrester (Resp.
Br. 11), he draws on a welter of unpersuasive authorities to urge
re-determination of the merits of the Massiah claim -- on this
preliminary motion -- prior to consideration of the full factual
record. As justification, he points to "numerous comments" from
the majority opinion of the Supreme Court of the United States
(Resp. Br. 12-14), which, he implies, somehow tacitly undermine
the facts found by the District Court on the Massiah claim. Much
of the Supreme Court's dicta to which respondent points is
relevant, on closer examination, not to the merits, but to that
Court's application of its new, strict "cause" and "prejudice"
inquiry announced in McCleskey's case. It does not, in short,
overturn Judge Forrester's factual findings.
Respondent also (1) prematurely solicits a judgment by this
Court that "certain findings by the district court are obviously
clearly erroneous," and (ii) denies that "there has been [any]
showing that the testimony of Offie Evans was unreliable or
false.” (Resp. Br. 15-16). This Court's determination of whether
factual findings are "clearly erroneous," however, is plainly an
inappropriate inquiry on a motion to dismiss. The leading habeas
case on point lis Dean v. Dean, 229 Ga. 612, 614, 193 S.E.24 338,
18
840 (1972), in which the Georgia Supreme Court expressly held
that a motion to dismiss "should not be granted unless it appears
to a certainty that the plaintiff would be entitled to no relief
under any state of facts which could be proved in support of the
Claim . .. . V.. See also. Hardv v. Jones, 244 Ga. 132, 133, 259
S.2.28 73, 74 {1279%9); Almaroad Vv. Giles, 230 Ga. 473, 197 S.E.24
706 {1973}; Mitchell v. Dickey, 226. Ga. 2183, 220, 173 8.E.24 695,
697 (2970) Bourn v. Herring, 225 Ga. 67,70, 166 S.E.2d4 89, 93
(1969).
As to respondent's bland assurances about Offie Evans'
credibility, we are content simply to juxtapose Judge Forrester's
factual findings:
The credibility or believability problems with [Evans']
testimony are evident. He has a strong motivation for
saying he was not an informant . . . . The numerous
contradictions within his deposition also lead the
court to the conclusion that his testimony would not be
believable. . . Evans' testimony is not likely to
change the credibility of Worthy's testimony or the
fact that petitioner showed by a preponderance of the
evidence that a Massiah violation occurred.
? Although none of the cases cited involve a death-
sentenced inmate, that distinction is immaterial. The Georgia
Supreme Court has recently reminded counsel in capital habeas
corpus proceedings
"that the Civil Practice Act [presently
codified at OCGA §§ 9-11-1 through 9-11-1132]
applies to habeas corpus proceedings insofar
as questions arise therein regarding the
sufficiency of pleadings, . . . and those
other elements of pleading and practice
enumerated in § 1 of the Act as amended."
Nelson.v. Zant, Ga. + + SS. 8.24 4. (No, 9150524) (June
25, 1991), quoting its earlier opinion in Johnson v. Caldwell,
229 Ga. 548, B32, 192 S.F.24 900(1972).
19
(St. Hab. Pet., Exh. D, 9-10).
Respondent's final factual argument attempts to capitalize
on certain contrary findings rendered by another federal court
during another habeas proceeding, involving one of McCleskey's
co-defendants. (See Resp. Br. 10, 15). This lame effort turns
all known principles of collateral estoppel on their head:
surely McCleskey is entitled to rely on prior factual findings
made in his own case; he is not bound by findings made in another
courtroom, in another case, to which he was not a party.
Ii
THE STATE’S USE OF OFFIE EVANS’ TESTIMONY -- AS
DISTRICT JUDGE OWEN FORRESTER EXPRESSLY FOUND, AND AS
AFFIDAVITS FROM TWO OF PETITIONER’S TWELVE TRIAL JURORS
NOW ESTABLISH IRREFUTABLY -- WAS NOT “HARMLESS ERROR”
Respondent's last basis for dismissal relies on the
"harmless error" holding rendered, as an alternative ground, by a
panel of the United States Court of Appeals. The principal
ground on which that court ruled, however, was a procedural one:
that McCleskey's habeas application should have been deemed an
"abuse of the writ." See McCleskey v. Zant, 890 F.24 342, 346,
351 (11th Cir. 1989). In addressing the harmless error question
as an alternative ground, the panel committed serious error
itself, for it repudiated Judge Forrester's carefully elaborated
factual findings on harmless error, without any showing that
those findings were themselves "clearly erroneous" under Rule 52
of the Federal Rules of Civil Procedure. The Supreme Court of
the United States did not reach or decide whether that holding
20
was error, that since it ruled against petitioner on the "abuse
of the writ" point. Hence, there was no final, authoritative
decision on the "harmless error" point.
More importantly, the panel's holding was uninformed by the
evidence now before this Court: sworn testimony from two trial
jurors that leaves unmistakable the gravity of the injury done to
Warren McCleskey by the State's secret dealings with Offie Evans.
The two jurors declare emphatically that neither a conviction for
malice murder nor a sentence of death would have been imposed on
McCleskey without the apparently neutral and impartial testimony
of Offie Evans. Had either juror known of Evans' arrangements
with Atlanta police, they would have discredited his testimony
and held out against a sentence of death. Armed with this
knowledge, it becomes impossible for anyone of good faith to
contend that the State's deliberate misconduct was "harmless
beyond a reasonable doubt" under Georgia or federal standards.
21
CONCLUSION
Respondent's motion to dismiss should be denied, and
petitioner should be entitled to proceed to the merits of his
Massiah claim.
Dated: August 2, 1991
Mark E. Olive
Georgia Resource Center
920 Ponce de Leon, N.E.
Atlanta, Georgia 30306
(404) 898-2060
Respectfully submitted,
Cn Chal Bs
\Egpert H. Stroup ¢
1 Walton Street
Atlanta, Georgia 30303
(404) 522-8500
John Charles Boger
University of North Carolina
School of law, CB # 3380
Chapel Hill, North Carolina 27599
(919) 962-8516
ATTORNEYS FOR PETITIONER
22
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been
furnished by mail to Mary Beth Westmoreland, Esqg., counsel for
Respondent, Office of the Attorney General, 132 State Judicial
Building, 40 Capitol Square, S.W., Atlanta, Georgia 30334.
ATTORNEY FOR PETITIONER
23
IN THE SUPERIOR COURT OF BUTTS COUNTY
STATE OF GEORGIA
WARREN McCLESKEY, * CIVIL ACTION NO.
Petitioner, *
®
vs. *
WALTER D. ZANT, Warden,
Georgia Diagnostic &
Classification Center,
Respondent.
HABEAS CORPUS
*
%*
*
®
MOTION FOR ACCESS TO CLIENT
FOR INVESTIGATION AND TESTING
Comes the Petitioner, Warren McCleskey, by and through
undersigned counsel, and respectfully requests that the Court
enter an order allowing counsel access to Petitioner for purposes
of conducting a psychological evaluation, and for cause shows:
1. Petitioner has filed a petition for writ of habeas
corpus in this Court in which he seeks relief from his sentence
of death, based on violation of his rights under Article I, § 1,
99 1 and 14 of the Constitution of Georgia of 1983 and the Sixth
and Fourteenth Amendments to the Constitution of the United
States. As part of the prayer for relief contained in the
petition, Petitioner has sought leave to amend his petition if
relevant evidence became available to him after reasonable
investigation pursuant to this motion.
2 In Fleming v. Zant, 386 S.E.2d 339 (Ga. 1989), the
Georgia Supreme Court held that execution of a mentally retarded
person would constitute cruel and unusual punishment prohibited
by the Georgia Constitution. For persons sentenced to death
before the effective date of 0.C.G.A. § 17-7-131(j), the Court in
Fleming fashioned a remedy to be initiated by petition for writ
of habeas corpus.
3. In order properly to investigate the existence of
Petitioner's rights under Fleming, it is necessary for counsel to
have access to petitioner for his evaluation by a psychologist.
This court has authority to order such access.
WHEREFORE, Petitioner moves this Court to enter an order
allowing access to the Georgia diagnostic and Classification
Center, by a psychologist of Petitioner's choosing, acceptable to
the Court, for the purpose of performing a psychological
evaluation of Petitioner, on twenty-four hour notice, on a date
to be determined by mutual agreement between Petitioner and
Respondent.
Respectfully submitted,
; roan
Robert H. Stroup
141 Walton Street, N.W.
Atlanta, Georgia 30303
(404) 522-8500
Mark E. Olive John Charles Boger
Georgia Resource Center University of North Carolina
920 Ponce de Leon, N.E. School of Law, CB # 3380
Atlanta, Georgia 30306 Chapel Hill, North Carolina 27599
(404) 898-2060 (919) 962-8516
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been
furnished by mail to Mary Beth Westmoreland, counsel for
Respondent, Office of the Attorney General, 132 State Judicial
Building, 40 Capitol Square, S.W., Atlanta, Georgia 30334.
Salt
This day of June, 1991.
ATTORNEY FOR PETITIONER
BER TERM, 1977. (240
empt, and, therefore, it was not
to lmprison the appellant un-
>
bt mean to imply that a party on
y court decree must again be she can be guilty of criminal
ecree does this.
Vl the Justices concur.
7 DECIDED NoveMmBEr 8, 1977.
uperior Court. Before Judge
appellant.
Warnes, John S. Noell, Jr., for
E v. HANDSPIKE.
\g Justice. ¢
rtiorari appeal is whether the
matter of law in determining
re of less than an ounce of
1t’s person was not a lawful
Under the facts recited in the
the policeman had probable
when he recognized the two
, saw the wine and cups, and
at he had given the girls some
We hold that the officer had
1itted in his presence and had
feronden He conducted his
est, and the marijuana
27-207; Mitchell ir nid 136
(1 975). We therefore reverse
1 1n State v. Handspike, 142
) (1977).
the Justices concur, except
it. Marshall, J. disqualified.
DEcIDED OCTOBER 20, 1977 —
OVEMBER 9, 1977.
Ga.) SEPTEMBER TERM, 1977. 177
Certiorari to the Court of Appeals of Georgia — 142
Ga. App. 104 (235 SE2d 568) (1977).
Hinson McAuliffe, Solicitor, Charles Hadaway,
Assistant Solicitor, for appellant.
Isaacs, Comolli & Polonsky, John M. Comolli, for
appellee.
HALL, Justice, dissenting.
I dissent from the grant of certiorari and the reversal
of the judgments of the trial court and the Court of
Appeals.
This is a routine search and seizure case and for this
reason I find no reason for the grant of certiorari. If I had
been a member of the Court of Appeals in this case, I would
have voted with the dissenting judges of that court to
reverse the ruling of the trial judge. However, as a
member of the Supreme Court, I find no matter of great
public concern or gravity and importance. Rule 36 (J)
Rules of the Supreme Court of the State of Georgia,
effective December 1, 1975. See my dissenting opinion in
Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 451
(224 SE2d 25) (1976).
32525, 32526. POPE v. CITY OF ATLANTA et al.; and
vice versa.
UNDERCOFLER, Presiding Justice.
Mrs. Pope wishes to build a tennis court on the rear
portion of her residence property which borders on the
Chattahoochee River. The City of Atlanta issued a stop
work order claiming that at least part of the tennis court
was within 150 feet of the river and the river's floodplain
and that she could not build the court without violating
the Metropolitan River Protection Act (River Act), Ga. L.
1973 p. 128, as amended, Ga. L. 1975, p. 837. Mrs. Pope
. She the
‘court asserting the state constitutional grounds that the
Act violated heristate due process’and eminent domain
178 POPE v. CITY OF ATLANTA. (240
rights, 1976 Const., Art. I, Sec. I, Par. I (Code Ann. §
2-101); Art. I, Sec. III, Par. (Code Ann. § 2-301), and was
an attempt by the state to exercise zoning powers
delegated to local governing authorities, 1976 Const.,
Art. XI, Sec. IV, Par II (Code Ann. § 2-6102 (15)). The trial
court ruled in our case No. 32525 that the state due
r inent i
he trial court held also in
case No. 32526 that the River Act was an unconstitutional
attempt to zone by the state, but that it was validly
adopted by the City of Atlanta as a zoning ordinance,
which it could enforce. Accordingly, the trial court
ordered the city to hold a hearing before the Zoning Board
of Adjustments. These appeals followed. n
both grounds.
1. The trial court erred in holding that the federal
court litigation was res judicata of the state due process
and eminent domain ground
. The construction of
similar federal constitutional provisions, though
persuasive authority, is not binding on this state’s
construction of its own Constitution.! Harris v. Duncan,
208 Ga. 561 (67 SE2d 692) (1951); National Mtg. Corp. v.
Suttles, 194 Ga. 768 (22 SE2d 386) (1942); Kennemer v.
State, 154 Ga. 139 (113 SE 551) (1922). See generally,
21 CJS 360, Courts, § 205. We note especially Harris wv.
Duncan, supra, where this court held that price fixing by
a state milk control board violated the state due process
clause even though the United States Supreme Court
had already ruled that such a scheme was not
unconstitutional under the federal due process clause.
Therefore, we conclude that Mrs. Pope’s state con-
stitutional claims here are separate from her federal
constitutional claims. :
! The Federal Constitution, which is of course binding
on the states, thus provides a minimum standard, but the
state may be more restrictive under its own constitution.
Oregon v. Hass, 420U.S.714,719,n.4(95SC 1215) (1975).
™
Ga.) SEPTEMBER TERM, 1977. 179
The doctrine of res judicata involves prior litigation
by the same parties on the same subject matter in a court
of competent jurisdiction as to all issues which were raised
or which could have been raised. Code Ann. § 110-501;
Price v. Ga. Industrial nly 132.Ga. A 107 oe
SE2d 556) (1974). Wt ; ave
f the federal court would have retaine
jurisdiction of the pendent state claims had they been
refrained from exercising its pendent jurisdiction over the
state claims, then the subsequent suit in the state court
would not be barred by res judicata.®? In so doing, we
2 Pendent jurisdiction relates to issues of which the
federal court would not have jurisdiction if raised
independently of a federal claim. “Pendent jurisdiction, in
the sense of judicial power, exists whenever there is a
claim ‘arising under [the] Constitution, the Laws of the
United States, and Treaties made, or which shall be made,
under their Authority...,” U.S. Const., Art. 111, § 2, and the
relationship between that claim and the state claim
permits the conclusion that the entire action before the
court comprises but one constitutional ‘case.’ The federal
claim must have substance sufficient to confer subject
matter jurisdiction on the court. Levering & Garrigues
Co. v. Morrin, 289 U. S. 103. . . The state and federal
claims must derive from a common nucleus of operative
fact... Needless decisions of state law should be avoided
both as a matter of comity and to promote justice between
the parties, by procuring for them a surer-footed reading
of applicable law.” United Mine Workers of America v.
Gibbs, 383 U. S. 715, 725-726 (86 SC 1130, 16 LE2d 218)
(1966). (Footnotes deleted.)
3 “Had the court found a jurisdictional bar to
reaching the state claim in Hurn [v. Oursler, 289 U. 5. 238
180 POPE v. CITY OF ATLANTA. (240
conclude that the state issues in this case “substantially
predominate” and would most likely have been left for
state resolution had they been presented to the federal
court. United Mine Workers of America v. Gibbs, 383 U.S.
715 (1966). Therefore, now that these important state
issues are before the state courts, we will not apply our res
judicata statute to bar this litigation.
We emphasize that che rule announced here applies
only to federal pendent jurisdiction, that is, where the
federal court would not independently have jurisdiction of
the state question but acquires jurisdiction only because a
federal question is involved. Also, the court must be
convinced that the underlying purposes of the res judicata
rule are advanced rather than defeated by not applying
the rule. Here the suit attempts to enjoin a public body
from acting under a statute alleged to be unconstitutional
under the State Constitution. The statute governs a matter
of great public importance. The issue had not been decided
by the state courts. If the res judicata bar is applied the
defendant will likely be sued again on the same issue by
another person situated similarly to the plaintiff. In that
event both the courts and the defendant must suffer the
~ same procedural requirements and hearings as here, as
well as the attendant delay, until the issue is again ripe
for decision. A decision now will preclude further
litigation. The public interest will be served by an early
decision. The defendant will not be harmed. Judicial
economy will result.
Because the trial court granted summary judgment
in favor of the City of Atlanta and the state on the res
judicata ground, it did not decide the state due process and
eminent domain issues on the merits. Therefore, the
judgment in case No. 32525 is reversed and the case
remanded to the trial court for further proceedings. ]
2. The trial court erred in holding that the River Act i
a. R
S
OT
FS
SH
R
I
S
s
(63 SC 586, 77 LE 1148) (1933)], we assume that the
doctrine of res judicata would not have been applicable
in any subsequent state suit.” United Mine Workers of
America v. Gibbs, supra, p. 724. (Emphasis in origi-
nal.)
_
Ga.) SEPTEMBER TERM, 1977. 181
constituted an attempt by the state to exercise zoning
powers delegated by the Georgia Constitution to the local
governing authorities. 1976 Const., Art. XI, Sec. IV, Par.
I1(Code Ann.§ 2-6102 (15). The state contends it validly
enacted the River Act under its police power. 1976 Const.,
Art. II, Sec. VIII, Par. III (Code Ann. § 2-1403).
The zoning power granted to county and municipal
governments is defined .in the Georgia Constitution,
supra, as “the power to provide within their respective
jurisdictions for the zoning or districting of such political
subdivisions for various uses and other or different uses
prohibited in such zones or districts; to regulate the use for
which said zones and districts may be set apart; and to
regulate the plans for development and improvements on
real estate therein.” See Anderson, American Law of
Zoning, § 1.13; 82 Amdur2d 387, Zoning and Planning, §
2.
The same paragraph of the Constitution also
provides: “Except as otherwise provided in this
Paragraph as to planning and zoning, nothing contained
within this Paragraph shall operate to prohibit the
General Assembly from enacting general laws relative to
the above subject matters or to prohibit the General
Assembly by general law from regulating, restricting or
limiting the exercise of the above powers, ...” Some of f the
powers included are “(6) Storm water and sewage
collection and disposal systems. (7) Devolontent, storage,
treatment and purification and distribution of water.”
The state is thus not precluded from acting in these areas
by general law.
The purposes of the River Act are set out in Section
3, Ga. L. 1973, p. 128 at pp. 130-131. “(a) The General
Assembly finds that adequate supplies of clean drinking
water constitute the life-blood of the great metropolitan
areas of this State and are, therefore, essential to the
health, welfare and economic progress of the State; that
development adjacent to major streams in certain
metropolitan areas requires special regulation to provide
adequate protection for public water supplies; that
siltation and urban runoff threaten such water supplies;
that flood plain development unnecessarily exposes life
and property to loss by flooding while increasing flood
182 POPE v. CITY OF ATLANTA. (240
risks for other area [sic]; that over-intensive development
adjacent to major streams increases the frequency and
severity of such flooding; that it is in the public inter-
est to avoid future flood damage and possible loss of
life, to control erosion and pollution and to protect the
water quality of major streams in certain metropolitan
areas.
“(b) The purpose of this Act is to provide a flexible
and practical method whereby political subdivisions in
certain metropolitan areas may utilize the police power of
the State consistently and in accordance with a
comprehensive plan to protect the public water supplies of
such political subdivisions and of the area and to prevent
floods and flood damage, to control erosion, siltation and
intensity of development adjacent to major streams in
such areas for such purposes, and to provide for
comprehensive planning for stream corridors in such
areas.”
We conclude that the River Act does not constitute
zoning within the definition set out in the Georgia
Constitution and quoted above, but instead falls within
the reserved powers of the state to act, along with the local
governing authorities, with regard to the water system,
as is set out in the purpose of the River Act. Therefore, the
trial court erred in ruling otherwise and the judgment in
case No. 32526 is reversed.
Judgments reversed. All the Justices concur, except
Hall, J., who dissents from Division 1.
ARGUED JULY 12, 1977 — DECIDED
OCTOBER 18, 1977 — REHEARING DENIED
NOVEMBER 9, 1977.
Declaratory judgment; constitutional question.
Fulton Superior Court. Before Judge Weltner.
Moreton Rolleston, Jr., Arthur K. Bolton, Attorney
General, Patricia T. Barmeyer, Assistant Attorney
General, for appellant.
Ferrin Y. Mathews, Ralph H. Witt, Mary Carole
Cooney, Arthur K. Bolton, Attorney General, Patricia T.
Barmeyer, Assistant Attorney General, for appellees.
Furman Smith, Jr., William R. Bassett, Harvey M.
Koenig, amicus curiae.
Ga.) SEPTEMBER TERM, 1977. 183
HALL, Justice, dissenting.
I dissent from Division 1 on the application of the
principles of res judicata. The court has impliedly (and
correctly) rejected appellant’s argument that her state
and federal theories of relief constitute different causes of
action. Since Mrs. Pope is seeking to relitigate the same
cause of action she is barred by Code Ann. § 110-501: "A
judgment of a court of competent jurisdiction shall be
conclusive between the same parties and their privies as
to all matters put in issue, or which under the rules of law
might have been put in issue in the cause wherein the
judgment was rendered, until such judgment shall be
reversed or set aside.” Division 1 of the court’s opinion can
only be understood as an unprecedented exception to this
general rule of claim preclusion.?
This decision is also contrary to existing case law.
et Division 1 holds that in certain cases these
judgments will be given less preclusive effect.? While
prior cases could be distinguished, no fair distinction can
be drawn which would support the result in this case.
The reason for this new rule is a policy choice to
encourage plaintiffs to present their state constitution:
claims only to state courts. I agree that this is preferable,
for a decision on state law by a state court is entitled to the
binding effect of stare decisis, while a decision by a federal
91 AA
1 The possibility that a plaintiff will lose her pendent
claims by failing to present them to federal court has been
noted by the commentators. Degnan, Federalized Res
Judicata, 85 Yale L. J. 741, 772 (1976); Annot., 5 ALR3d
1040, 1056 (1956); Note, Problems of Parallel State and
Federal Remedies, 71 Harv. L. Rev. 513, 523-524 (1958).
2 The court’s rule will give only collateral estoppel
effect tofederal court judgments when the test of Division
1 is met. Res judicata claim preclusion under Code Ann. §
110-501 is broader. See also, Restatement, Judgments, §
63.
184 POPE v. CITY OF ATLANTA. (240
court on the same issue would be entitled only to the
binding effect of res judicata, which binds only the parties
and their privies.? But I do not believe the rule in Division
1 will have the desired effect, and moreover I believe that
even if it did the policies against the new rule pre-
dominate.
The rule in Division 1 applies only if there has been a
prior federal suit in which the plaintiff failed to present a
ground for relief under state law. What the rule says is
that in such a case the state court will inquire as to
whether the federal court would have abstained had the
issue been presented. If the state court concludes that the
federal court would have abstained, we will treat the case
as if the court had in fact abstained. What does this
accomplish? :
Under general res judicata principles the plaintiff
must present all grounds for relief or lose them. If he does
not present them there is no decision; the plaintiff is
simply barred from bringing a second suit. If he does
present them, the federal court will abstain on issues
which are suitable for abstention, the very same issues
with which Division 1 is concerned. Once the federal court
abstains, the plaintiff may litigate these 1ssues in state
court, for they are issues which could not be put in
issue in the previous case. Code Ann. § 110-501. In other
words, if we force plaintiffs to present all of their cases to
the federal courts, we can accomplish the same result (so
far as the policy of encouraging state court decisions on
state law is concerned) as the rule in Division 1, without
sacrificing the policies behind existing law.
One practical effect of this new rule is to save those
cases, such as Mrs. Pope’s, where the plaintiff has simply
neglected to present all grounds for relief to the federal
forum. Insofar as the rule relieves plaintiffs from the
mistakes of their lawyers it is directly contrary to the
3 The federal decision would be merely persuasive
authority in other cases.
4 Mrs. Pope presented five federal and state law
grounds for relief to the federal court. See Pope v. City of
Atlanta, 418 FSupp. 665 (N.D. Ga. 1976). There is no
x
Ga.) SEPTEMBER TERM, 1977. 185
policy choice behind the res judicata principle. Mrs. Pope
is no more deserving of this relief than any other
plaintiff.
Of course, the rule goes further and encourages
plaintiffs to withhold some of their grounds for relief from
the federal court. We should not encourage this. If the
claim is not presented we will have no decision by the
federal court on whether it should refrain from hearing
the issue. The question of whether the federal court
should abstain is a question of federal court procedure
and a discretionary decision by the federal judge. This
issue is one of which should be left for the federal courts
to decide, for they are the experts on federal proce-
dure.
The result of Division 1 is to require our state courts
to answer a hypothetical question of federal court
procedure: if the plaintiff had presented his entire case to
federal court, would that court, in the exercise of its sound
discretion, have refused to decide the issues now
presented? This question is not an easy one, and at least
one state court has refused to consider it. Martin v.
Phillips Petroleum Co., 455 SW2d 429, 437 (Tex. 1970).
Moreover, the issue is entirely foreign to the areas of
competence of state court judges. Thus the majority has
created a difficult collateral issue which requires our
courts to become familiar with and apply rules of fed-
eral court procedure as a preliminary step in deciding
whether to hear a case. This adds to the burden on our
courts.
Claim preclusion is not only supported by the policy
of reducing unnecessary litigation. The primary policy
behind the principle is to promote justice by avoiding the
unnecessary expense, delay and uncertainty caused
defendants by repeated lawsuits on the same cause of
action. Repeated suits can be used to unjustly harass
defendants, and may deny justice altogether. Yet the
court approves a procedure by which a plaintiff can bring
indication of a choice to save the state constitutional
issues for state court. Rather it appears that these issues
were not even thought of until she lost in federal court.
186 POPE v. CITY OF ATLANTA. (240
two suits by choosing to start in federal court, and failing
to present important state law issues to that forum. Even
in cases where our courts will refuse to allow relitigation,
the plaintiffs will be able to litigate the difficult question
of whether the federal court would have abstained. This
will provoke additional appeals.The procedural com-
plexity created by this case will be a tool for harassing
defendants, as well as a totally unnecessary burden on our
courts.
We should require plaintiffs who choose a federal
forum to present all their grounds for relief to that court. If
issues are present which are arguably appropriate for
abstention, the federal court can decide the question of
whether it should abstain.’ This will dispose of the issue
without burdening our courts. Difficult state con-
stitutional claims will still be referred to state courts.
Thereis another reason for disagreeing with Division
1. The scope and effect of a federal judgment is a matter of
federal la i i i
: : - Stoll v. Gottlieb, 305 U. S. 165, 167,
0 (1938); Embry v. Palmer, 107 U. S. 3 (1882); Degnan,
Federalized Res Judicata, 85 Yale L. J. 741, 742-750
(1976). The rule announced in Division 1 gives federal
court judgments less preclusive effect than state court
judgments, for if this case had been decided in a state court
res judicata would apply. This rule results in a denial of
full faith and credit to the federal judgment.
Of course, if the federal courts would not give the full
preclusive effect to their judgments, we would not have to.
But the rule is well settled that pendent state law claims
which are not presented in federal court are precluded.
Southwest Airlines Co. v. Texas International Airlines,
546 12d 84, 92 (5th Cir. 1977); Woods Exploration and
Production Co. v. Aluminum Co. of America, 438 F2d
5 The federal court could also refer the issue to our
courts for a decision, holding the federal action in
abeyance.
h
E
Ga.) SEPTEMBER TERM, 1977. 187
1286, 1311-1316 (6th Cir. 1971). See United Mine Work-
ers of America v. Gibbs, 383 U. S. 715, 723, 725, n. 12
(1966). The federal courts have been quite insistent on the
issue of claim preclusion by former adjudication in federal
court. See, e.g., Southwest Airlines Co. v. Texas Interna-
tional Airlines, supra; International Assn. of Machinists
&c. v. Nix, 512 F2d 125 (5th Cir. 1975); Woods Explora-
tion and Production Co. v. Aluminium Co. of America,
supra. The rule in federal court is that a judgment for the
defendant on a particular cause of action establishes his
right to do what was done. Applied to this case, the rule
means that the City of Atlanta has the right to restrain
Mrs. Pope.
in Division 1 1s co
Ne glive-jedaer
Finally, it is worth noting that the few cases by state
courts which are closely on point are contrary to this
decision. In Belliston v. Texas, 521 P2d 379 (Utah 1974),
the Utah Supreme Court held that a state suit on state
antitrust grounds was barred by the former adjudication
of federal antitrust claims in federal court, even though
the state issues were not presented to the federal court,
and the federal court would have had only pendent
jurisdiction of these claims. Accord, Ford Motor Co. v.
Superior Court, 35 Cal. App. 3d 676 (110 Cal. Rptr. 59)
(1973) (cited with approval in Slater v. Blackwood, 15 Cal.
3d 791 (126 Cal. Rptr. 225) (1976)); McCann v. Whitney,
25 NYS2d 354 (1941). Moreover, other state courts have
held that they are required to give federal judgments the
same preclusive effect that they would have in federal
court. Levy v. Cohen, 19 Cal. 3d 165 (137 Cal. Rptr. 162)
(1977); London v. City of Philadelphia, 412 Pa. 496 (194
A2d 901) (1963); Shell Oil Co. v. Texas Gas Transmission
Corp., 176 S2d 692, 696-697 (La. App. 1965). See also
Transworld Airlines v. Hughes, 317 A2d 114, 119 (Del.
Ch. 1974) (dicta).
I would affirm the trial court insofar as it found that
188 SEPTEMBER TERM. 1977. (240
the present suit is barred by res judicata, and vacate insofar as any other issue is reached.
32560. CLARK et al. v. STATE OF GEORGIA et al.
PER CURIAM.
eals affirmed the dismissal of a tort suit against the State of Georgia, the Department of Natura] Resources, its director and board on the grounds of state sovereign immunity. In 1974 a constitutional amendment was ratified authorizing the establishment of a State Court of Claims. Code Ann. § 2-3401. This court has held that by virtue of the adoption of this amendment the doctrine of state sovereign immunity now has constitutional status and cannot be abrogated or modified by this court. Azizi v. Bd. of Regents of U. of Ga., 233 Ga. 487, 488 (212 SE2d 627) (1975).
The petitioner contends that the amendment was illegally ratified because it dealt with more than one subject matter. We disagree. See Sears v. State of Ga., 232 Ga. 547 (5) (208 SE2d 93) (1974); Hammond v. Clark, 136 Ga. 313, 324 (71 SE 479) (1911).
The petitioner also contends that the amendment was illegally ratified because the ballot language did not inform the electorate that they were adopting the doctrine of state sovereign immunity. We disagree. See Sears, supra, 554-556; McLennon v. Aldredge, 223 Ga. 879 (159 SE2d 682) (1968).
Judgment affirmed. All the Justices concur, except Jordan, J... who concurs in the judgment only and Nichols, C. J., and Hill, J., who dissent.
ARGUED SEPTEMBER 13, 1977 — DkcIipep OCTOBER 24, 1977 — REHEARING DENIED N OVEMBER 9, 1977. Certiorari to the Court of Appeals of Georgia — 142 Ga. App. 272 (235 SE2d 614) (1977).
9-12-22
ey for his services in
subject to setoff of
the assignor, 51 ALR
Judgment as carrying
assignor as to incidental
D.
rt action as subject of
ment, or garnishment
21 ALR 420.
| warrant of attorney to
it against assignee,
ther party obligating
ormance of primary
426.
brd of the person in
od to pass the title
bn in whose favor
. Ratification by the
ster. Receipt of the
. (Orig. Code 1863,
bode 1832 § 3598;
5970; Code 1933,
it creditor. Accordingly,
is held by an assignee is
ft in favor of judgments
the assignor, but not
gment debtor unul after
the former judgment.
er, 175 Ga. 719, 163 S.E.
y v. Redwine, 59 Ga. 327
tar Lightning Rod Co. v.
(1879); Shurley v. Black,
3.E. 618 (1923).
9-12-40 VERDICT AND JUDGMENT 9-12-40
RESEARCH REFERENCES
Am. Jur. 2d. — 46 Am. Jur. 2d, Enforceability of warrant of attorney to
Judgments, § 886. confess judgment against assignee,
CJS. — 49 CJS, Judgments, guarantor, or other party obligating
§8 512-530. himself for performance of primary
ALR. — Payment of judgment by debtor contract, 5 ALR3d 426.
without notice of its assignment, 32 ALR
1021.
ARTICLE 2
EFFECT OF JUDGMENTS
9-12-40. Judgment conclusive between which persons and on what
issues.
A judgment of a court of competent jurisdiction shall be conclusive
between the same parties and their privies as to all matters put in issue
or which under the rules of law might have been put in issue in the cause
wherein the judgment was rendered until the judgment i 1s reversed or set
aside. (Orig. Code 1863, 8 3496; Code 1868,§ 3519; Code 1873,§ 3577;
Code 1882, § 3577; Civil Code 1895, §§ 3742, 5348; Civil Code 1910,
§§ 4336, 5943; Code 1933, § 110-501.)
History of section. — The language of Georgia cases dealing with environment,
this section is derived in part from the natural resources, and land use from June
decision in Watkins v. Lawton, 69 Ga. 671 - 1977 through May 1978, see 30 Mercer L.
(1882). Rev. 75 (1978).
Law reviews. — For article, “Uninsured For note, “Res Judicata in the Georgia
Motorist Coverage in Georgia,” see 4 Ga. Courts,” see (1977).
St. B.J. 329 (1968). For article surveying
JUDICIAL DECISIONS
ANALYSIS
GENERAL CONSIDERATION
SAME PARTIES AND PrIVIES
LAw oF THE CASE
REs Jubicara
EsToppPEL BY JUDGMENT
General Consideration section and §§ 9-2-44 and 9-12-42 is
This section and § 9-12-42 provide the reconciled yy the fact that 38 3.241) and
primary basis for the laws relating to 9-12-42 have special application £10
conclusiveness of judgments. Gilmer v. estoppels by judgment. and this Section
Porterfield, 233 Ga. 671. 212 S.E.2d 849 applies where a plea of res adjudicata is
(1975). available. Camp v. Lindsay, 176 Ga. 438,
168 S.E. 284 (1933).
s
The apparent conflict between this
497
9-12-40
This section is operative only if the two
actions are based upon the same cause of
action. Brown v. Georgia Power Co., 371 F.
Supp. 543 (S.D. Ga. 1973).
In deciding whether this section
operates to bar a state court claim, the
Court of Appeals will consider (a) whether
there is a valid antecedent judgment; (b)
whether there is identity of parties; (c)
whether there is identity of issues; and (d)
whether reasons of public policy militate
against a strict application of this section in
this case. Fierer v. Ashe, 147 Ga. App. 446,
249 S.E.2d 270 (1978).
Res judicata and estoppel by judgment
distinguished. ~— While res judicata
applies only as between the same parties
and upon the same cause of action to
matters which were actually in issue or
which under the rules of law could have
been put in issue, estoppel by judgment
applies as between the same parties upon
any cause of action to matters which were
directly decided in the former suit. Spence
v. Erwin, 200 Ga. 672, 38 S.E.2d 394
(1946); Harvey v. Wright, 80 Ga. App. 232,
55 S.E.2d 835 (1949); A.R. Hudson Realty,
Inc. v. Hood, 151 Ga. App. 778,262 S.E.2d
189 (1979); Firestone Tire & Rubber Co. v.
Pinyan, 1565 Ga. App. 343, 270 S.E.2d 883
(1980).
Under rules of res judicata and estoppel
by judgment, in order for a former
decision to be conclusive, it must have
been
under the pleadings they wer
have been involved. Sumner v. Sumner,
186 Ga. 390, 197 S.E. 833 (1938);
Thompson v. Thompson, 199 Ga. 692, 35
S.E.2d 262 (1945); Powell v. Powell, 200
Ga. 379, 37 S.E.2d 191 (1946).
Res judicata and estoppel by judgment
can only be set up in a subsequent suit
between the same parties or their privies.
Owens v. Williams, 87 Ga. App. 238, 73
S.E.2d 512 (1952); Walka Mt. Camp, No.
565, Woodmen of World, Inc. v. Hartford
Accident & Indem. Co., 222 Ga. 249, 149
S.E.2d 365 (1966); Anderson Oil Co. v.
Benton Oil Co., 246 Ga. 304, 271 S.E.2d
207 (1980). :
A former judgment binds only as to the
facts in issue and events existing at the
time of such judgment, and KIGESIGY
CIVIL PRACTICE 9-12-40
e absence of
evidence to the contrary, the facts as they
existed at the time of the former judgment
would be presumed to continue. Durham v.
Crawford,
(1943).
Neither res judicata nor collateral
estoppel shown. — Where a claimant in
action conveyed property in dispute before
a claim was filed, a judgment finding the
property levied on not to be subject to levy
is not res judicata nor a collateral estoppel
in favor of one to whom the claimant
conveyed the property. Goodwin v. Bowen,
184 Ga. 408, 191 S.E. 691 (1937).
The effect of a judgment cannot be
avoided by a difference in the pleadings,
when those inthe first case could and
should have been as (ull as those in the
second, though in fact they were not.
Booker v. Booker, 107 Ga. App. 339, 130
S.E.2d 260 (1963).
A single cause of action with several
elements of damage admits of but one
action, where there is an identity of subject
matter and of parties. Massey v. Stephens,
155 Ga. App. 243, 270 S.E.2d 796 (1980).
A plaintiff is not permitted to split his
single cause of action to seek in successive
litigation the enforcement of first one
remedy and then a second. Massey v.
Stephens, 155 Ga. App. 243, 270 S.E.2d
796 (1980). :
The principle test for comparing causes
of action is whether or not the primary
right and duty, and the delict or wrong are
the same in each action. Brown v. Georgia
Power Co., 371 F. Supp. 543 (S.D. Ga.
1973).
A personal judgment cannot be
obtained against a person who is not
named as a party defendant and properly
served in the action. Nor may a judgment
be rendered against a party defendant in
favor of one who is not party to the case.
Neither can it grant relief as to matters not
pleaded. Burgess v. Nabers, 122 Ga. App.
445, 177 S.E.2d 266 (1970).
Judgment will not be conclusive on the
trial of another case between the same
498
9-12-40
parties involving same question where a
and a judgment is rendered in the case, and
it does not appear, except by inference
from the judgment and the pleadings and
evidence, that the question collaterally
made was actually passed upon. Cravey v.
Druggists Coop. Ice Cream Co.,
1942).
The judgment is not an estoppel il a
judgment and extrinsic evidence leave it as
a mere matter of conjecture as to what
questions of fact were litigated and
determined in the former action. Cravey v.
Druggists Coop. Ice Cream Co., 66 Ga.
App. 909, 19 S.E.2d 845 (1942).
Where the court of ordinary (now
probate court) had determined an
intestacy, such an adjudication is not
conclusive to the same extent as other
judgments. On the contrary, the question
would seem to be open for [future
consideration in the event a will should be
brought to the attention of the court in a
proper manner. Walden v. Mahnks, 178
Ga. 825, 174 S.E. 338 (1934). :
A judgment of the superior court,
apparently regular and legal, can only be
set aside in a proper proceeding for that
purpose in the court wherein the judgment
was rendered. Barron v. Lovett, 207 Ga.
131, 60 S.E.2d 458 (1950).
Construction that renders judgment
legal preferred. — When a judgment is
susceptible of two meanings, one of which
would render it illegal and the other
proper, that construction will, if reasonably
possible, be given it that would render it
legal. Byrd v. Goodman, 195 Ga. 621, 25
S5.E.2d 34 (1943).
A judgment on affidavit of illegality of
execution is a bar to equitable relief
thereafter, under this section. Cone v.
Eubanks, 167 Ga. 384, 145 S.E. 652 (1928).
A defendant in execution may not by
affidavit of illegality make the defense of
payment of debt, but only the payment of
the execution itself. Felker v. Johnson, 189
Ga. 797, 7 S.E.2d 668 (1940).
Petitioner cannot, after judgment, set
up a settlement of the cause of action
made before rendition of the judgment.
Felker v. Johnson, 189 Ga. 797, 7 §.E.2d
668 (1940).
VERDICT AND JUDGMENT 9-12
Affirmance of the judgment withon
condition or direction left trial cou
without jurisdiction to entertain or pass
a “special plea” filed after the judgment
affirmance. Federal Inv. Co. v. Ewing,
Ga. 246, 142 S.E. 890 (1923).
When nulla bona returned on person
judgment against trustee, creditor
estopped from proceeding against (rn
property to satisfy judgment. Wher
creditor obtains a judgmeae:
against a trustee on a note exccuted by tl
latter for goods, merchandise, and cu
obtained and used for the benefit of |
cestuis que trust, and on which a nulla hon
has been returned, the
proceed to subject the trust property to tl
payment of the judgment. The judgmen
against the trustee does not render th
subséquent proceeding
under this section. Faulk v. Smith, 168 ¢,
448, 148 S.E. 100 (1929).
Judgment rendered between credito:
and debtor, until set aside for fraud
accident, mistake, or other cause, wo
conclusive and binding between them ast
the amount of the
agreement alleged to have been
between the parties therefore was withon
consideration and not binding. Creswell
Bryant Hdwe. Co, 166 Gu. 228, 147 51
885( 1923).
Consent decree involving title to realt
was not void for want of any description
or for want of any words to furnish a kev
any description of the
pleadings on which consent «decree w
based gave a complete description of th
property. Bentley v. Sull, 198 Ga. 743.
S.E.2d 814 (1945).
A consent judgment rendered (0
conform with a settlement
without a party’s participation would no
come within this section, there having
been no judicial decision upon the merits im
the absence of a true adversary proceeding
Blakely v. Couch, 129 Ga. App. 625, 200
S.E.2d 493 (1973).
Condemnation judgment must |
vacated, etc., before injunction available.
— Where a court having jurisdiction ol
condemnation proceedings
judgment that the lands are condemuner!
for public purposes, the condemnee has no
right to enjoin the taking and use of the
personal
creditor mia
res adjudica
indebtedness. 1h
tad
lands wher
agreement
enters
499
9-12-40
lands by the condemnor, without first
having the judgment of condemnation
vacated or set aside. Hogg v. City of La
Grange, 202 Ga. 764, 44 S.E.2d 760 (1947).
A judgment discharging an
administrator relieves him from further
liability to those interested in the estate,
unless such judgment is set aside either on
motion in the court of ordinary, or by
equitable proceeding in the superior court.
. Stanton v. Gailey, 72 Ga. App. 292, 33
S.E.2d 747 (1945).
Entire record of action must be
introduced along with decree offered in
evidence. — When a decree is offered in
evidence to establish any particular state of
facts, or as an adjudication upon the subject
matter, such decree is admissible only when
accompanied by the entire record of the
suit in which the decree was rendered.
Holcombe v. Jones, 197 Ga. 825, 30 S.E.2d
903 (1944). ;
Disallowing bankruptcy claim for
untimely filing not adjudication on
merits. — A judgment of a court of
bankruptcy disallowing a claim on the
ground that it was not filed within time is
not an adjudication upon the merits of the
claim, and when thereafter, the holder of
such claim attempts to enforce same by levy
upon property of the bankrupt, it is error
to sustain an affidavit of illegality thereto
on the ground that the judgment of the
bankruptcy court was an adjudication that
the judgment was not a valid lien against
the property of the bankrupt. Georgia Sec.
Co. v. Arnold, 56 Ga. App. 532, 193 S.E.
366 (1937).
The relationship of master and servant
does not ipso facto constitute privity for
purposes of res judicata or estoppel by
judgment. Porterfield v. Gilmer, 132 Ga.
App. 463,208 S.E.2d 295 (1974), aff'd, 233
Ga. 671, 212 S.E.2d 842 (1975).
Section 44-6-165, prescribing the time
in which answers may be filed, must be
construed in harmony with the rule as to
the conclusiveness of judgments, and will
not authorize parties to file objections to
the return of partitioners ‘on grounds
which were adjudicated upon the hearing
of the application for their appointment.
Cates v. Duncan, 181 Ga. 686, 183 S.E. 797
(1936).
CIVIL PRACTICE 9-12-40
Voluntary dismissal with prejudice of
action under 15 U.S.C.A. § 1601 et seq.
merged entire cause of action, —
Voluntary dismissal with prejudice of
action for penalties under federal
Truth-In-Lending Act, 15 U.S.C.A. § 1601
et seq., as to bank merged plaintiffs’ entire
cause of action, including rescission
remedy, for nondisclosures and barred any
subsequent action in this state against seller
for his “joint and not separate” liability for
failure to make the disclosures in the same
transaction. Massey v. Stephens, 155 Ga.
App. 243, 270 S.E.2d 796 (1980).
Cited in Bostwick v. Perkins, Hopkins &
White, 1 Ga. 136 (1846); Stroup v. Sullivan,
9 Ga. 275, 46 Am. Dec. 389 (1847); Kenan
& Rockwell v. Miller, 2 Ga. 325 (1847);
Puffer Mfg. Co. v. Rivers, 10 Ga. App. 154,
7% S.E. 20 (1911); Jones v. Schacter, 31 Ga.
App. 709, 121 S.E. 691 (1924); Burgamy v.
Holton, 165 Ga. 384, 141 S.E. 42 (1927);
Lester v. Southern Security Co., 168 Ga.
307, 147 S.E. 529 (1929); McDonald Mig. &
Realty Co. v. Feingold, 168 Ga. 763, 149
S.E. 132 (1929); Odom v. Attaway, 4] Ga.
App. Bl, 152 S.E. 148 (1930); Eison v.
Cocker, 45 Ga. App. 122,163 SE.2511
(1932); Sells v. Sells, 175 Ga. 110, 165.S.E.
1 (1932); George v. Cox, 46 Ga. App.
125, 166 S.E. 868 (1932); Walden v.
Mahnks, 178 Ga>825, 174 S.E. 538 (1934);
McEntyre v. Merritt, 49 Ga. App. 416, 175
S.E. 661 (1934); National Life & Accident
Ins. Co. v. Leo, 50 Ga. App. 473, 178 SE.
3292 (1934); Rosenthal v. Langley, 180 Ga.
953. 179 S.E. 383 (1935); Atlanta Sav. Bank
v. Kurfees, 18% Ga. 207, 181 S.E.. 779
(1935); Key v. Metropolitan Cas. Ins. Co.,
181 Ga. 402, 182 S.E. 607 (1935); Rozetta
v. Rozeua, 181 Ga. 494, 182 S.E. 847
(1935); Gillis v. Atlantic C.LR.R., 52 Ga,
App. 806, 184 S.E. 791 (1936); Woods v.
Travelers Ins. Co., 53 Ga. App. 429, 186
S.E. 467 (1936); Ellis v. First Nat'l Bank,
182 Ga. 641, 186 S.E. 813 (1936); Jackson
v. Massachusetts Mut. Life Ins. Co., 183 Ga.
659, 189 S.E. 243 (1936); Crider v. Harris,
183 Ga. 695, 189 S.E. 519 (1937); Crane v.
Stratton, 185 Ga. 234, 194 S.E. 182 (1937);
Sheldon & Co. v. Emory Univ., 184 Ga.
440, 191 S.E. 497 (1937); Simmons Vv.
Williams Realty & Loan Co., 185 Ga. 154,
194 S.E. 356 (1937); Byrd v. Prudential Ins.
Co., 185 Ga. 310, 195 S.E. 403 (1937);
500
9-12-40
Hicks v. Wadsworth, 57 Ga. App. 529, 196
S.E. 251 (1938); United States v. Hatcher,
185 Ga. 816, 196: SK. 773% (1938);
McCollum v.: Lark, 187 Ga. 292, 200 S.E.
276 (1938); Brinkley v. Newell, 188 Ga.
678, 4 S.E.2d 827 (1939); Blackwood v.
Yellow Cab Co., 61 Ga. App. 149, 6 S.E.2d
126 (1939); Penn Mut. Life Ins. Co. v.
Childs, 189 Ga. 835, 7 S.E.2d 907 (1940);
Whitfield v. Maddox, 189 Ga. 878, 8 S.1.2d
54 (1940); Loveless v. Carten, 64 Ga. App.
54,12 S.E.2d 175 (1940); Morris v. Georgia
Power Co., 65 Ga. App. 180, 15 S.E.2d 730
(1941); Moody v. McHan, 66 Ga. App. 29,
16 S.E.2d 889 (1941); Allman v. Aldredge,
193 Ga. 269, 18 S.E.2d 473 (1942);
Forrester v. Pullman Co., 66 Ga. App. 745,
19 S.E.2d 330 (1942); Cravey v. Druggists
Coop. Ice Cream Co., 66 Ga. App. 909, 19
S.E.2d 845 (1942); Adams V.
Higginbotham, 194 Ga. 292, 21 S.E.2d 616
(1942); Commercial Credit Corp. wv.
Citizens & S. Nat'l Bank, 68 Ga. App. 393,
23 S.E.2d 198 (1942); Lankford v. Holton,
197 Ga. 212, 28 S.E.2d 747 (1944); Bussell
v. Glenn, 197 Ga. 816, 30: S.E.2d 617
(1944); Stanton v. Gailey, 72 Ga. App, 292,
33 S.E2d - 747 (1945); Andrews -v.
Aderhold, 201 Ga. 132, 39 S.£.2d 61
(1946); Williams v. Brannen, 75 Ga. App.
773,44 S.E.2d 493 (1947); McCall v. Kliros,
76 Ga. App. 89, 45 S.E.2d 72 (1947); Settle
v. McWhorter, 203 Ga. 93, 45 S.E.2d 210
(1947); Griffin v. Driver, 203 Ga. 481, 46
S.E.2d 913 (1948); Maddox v. Carithers, 77
Ga. App. 280, 47 S.E.2d 888 (1948);
Gamble v. Gamble, 204 Ga. 82, 48 S.E.2d
540 (1948); Miller Serv., Inc. v. Miller, 77
Ga. App. 413, 48 S.E.2d 761 (1948);
Turner v. Avant, 205 Ga. 426, 54 S.E.2d
269 (1949); Otwell Motor Co. v. Hill, 79 Ga.
App. 686, 54 S.E.2d 765 (1949); Walton v.
City of Atlanta, 89 F. Supp. 309 (N.D. Ga.
1949); Edenfield v. Lanier, 206 Ga. 696, 58
S.E.2d 188 (1950); Garr v. E.W. Banks Co,,
206 Ga. 831, 59 S.E.2d 400 (1950); Morris
v. Morris, 82 Ga. App. 384, 61 S.E.2d 156
(1950); Gamble v. Gamble, 207 Ga. 380, 61
S.E.2d 836 (1950); Parker v. Cherokee
Bldg. Supply Co., 207 Ga. 710, 64 S.E.2d
51 (1951); McKenney v. Woodbury
Banking Co., 208 Ga. 616, 68 S.E.2d 571
(1952); Carswell v. Shannon, 209 Ga. 596,
74 S.E.2d 850 (1953); Routon v. Woodbury
Banking Co:,“209: Ga. 706, 75 S.E.2d 561
VERDICT AND JUDGMENT 9-12-40
(1953); Walker v. Hamilton, 210 Ga. 155,
78 S.E.2d 511 (1953); Brown v. Brown, 8Y
Ga." App 428,780 'S.E.2d 2. (1952);
Churchwell Bros. Constr. Co. v. Archie R.
driggs Constr. Co., 89 Ga. App 550, 80
S.E.2d 212 (1954); Gaulding v. G: a
210 Ga. 638, 81 S.E.2d 830 (1954); Bennett
v. Bennett, 210° Ga. 721, 82 S.E.2d 653
(1954); Malcom v. Webb, 211 Ga. 449, 80
S.E.2d 489 (1953); Baker v. Decatun
Lumber & Supply Co., 211 Ga. 510, 87
S.E.2d 89 (1955); Bostic v. Nesbitt, 212 Ga.
198, 91 S.E.2d -484 (1956); Threlkeld v.
Whitehead, 95 Ga. App. 378, 98 S.E.2d 76
(1957); Galloway v. Merrill, 213 Ga. 633,
100 S.E.2d 443 (1957); Wells v. Keith, 213
Ga. 858, 102 S.E.2d 533 (1938); Allen v.
Withrow, 215 Ga. 388, 110 S.E.2d 663
(1959); Shaw v. Miller, 215 Ga. 413, 110
SES9d. 769 (1959); Beckanstin. a
Dougherty County Council of Aremioas,
219 Ga. «543. 11) S.F.2d 36] {1980
Hackney v. Tench, 216 Ga. ¢ 183, ar 9
453 (1960); Patullo v. Atlanta & W.P.R.R.,
216.064. 806, 120 S5.F.2d 176 (1961); Russ
Transp., Inc. v. Jones, 104 Ga. App. 612,
122 S.E.2d 282 (1961); Blanton v. Blanton,
917. Ga, 5492, 125:-S.E.2d 758 (146H2}
Sales Co. v. McKey, 105 Ga. Ane, 787,125
S.E.2d 684 (1962); Hardin v. Hc I 218
Ga. 39, 126 S.E.2d 216 (1962); Banks
Sirmans, 218 Ga. 413, 128 5.£.24 66
(1962); John P. King Mfg. Co. v. Clay, 218
Ga. 382, 128 S.E.2d 68 (1962); Chandler «
Chandler, 107 Ga. App. 124,129 S.E.2d
370 (1962); Lawhorn v. Adantic Ref. Co,
299 F.2d 353 (5th Cir. 1962); Fidehty &
Cas. =Co. v.*Parham, 218 Ga. 640, “124
S.E.2d 868 (1963); West v. Hatcher, 219
Ga. 540, 134 S.E.2d 603 (1964); Carswell
Cannon, 110 Ga. App. 315, 138 5.E.2d 468
(1964); Patent Scatfolding Co. v. Byers, 220
Ga. 426, 139 Sen 332 (1964); Stoddard
Cleaners, Inc. v. Carrs: 220: Ga. 707, 14}
S.E.2d 434 (1965); Sirmons v. Banks, 220
Ga. 8381, 142 S.E.2d 351 (1965); Banks v.
Employees Loan & Thnft Corp., 112 Ga.
App. -38..143 S.E.2d 787 (1965): United
States Fid. & Guar. Co. v. Dunbar, 112 Ga.
App. 102, 143 S.E.2d 663 (1965); Horton v.
Harvey, 221 Ga. 799, 147 S.E.2d 505
(1966); Deason v. DeKalb County, 222 Ga.
63, 148 S.E.2d 414 (1966); Sewell Dain
Supply Co. v. Taylor, 113 Ga.: App. 724,
149 S.E.2d 540 (1966); Cromer v. Cromer,
» King
501
9-12-40
9299 Ga. 365, 149 S.E.2d 804 (1966); Adams
v. Travelers Ins. Co., 114 Ga. App. 276,
151 S.E.2d 177 (1966); Uddyback v.
George, 223 Ga. 311, 154 S.X.2d 577
(1967); Martin v. Phelps, 115 Ga, App. 552,
155 S.E.2d 447 (1967); McDonald v.
Hester, 115 Ga. App. 740, 155 S.E.2d 720
(1967); Sams v. McDonald, 223 Ga. 451,
156 S.E.2d 31 (1967); Connecticut Indem.
Co. v. Gaudio. 116 Ga. App. 672, 158
S.E.2d 680 (1967); Wren Mobile Homes,
Inc. v. Midland-Guardian Co., 117 Ga.
App- 22, 159 S.E.2d 734 (1967); Bailey v.
Louisville & N.R.R., 117 Ga. App. 185, 160
S.E.2d 245 (1968); First Fed. Sav. & Loan
Ass'n v. First Nat'l Bank, 224 Ga. 150, 160
S.E.2d 372 (1968); Swinney v. Reeves, 224
Ga. 274, 161 S.E.2d 273 (1968); Franklin v.
Sea Island Bank, 120 Ga. App. 654, 171
S.E.2d 866 (1969); Miami Properties, Inc.
v. Fitts, 226 Ga. 300, 175 S.E.2d 22 (1970);
American Liberty Ins. Co. v. Sanders, 122
Ga. App. 407, 177 S.E.2d 176 (1970);
Leggett v. Gibson-Hart-Durden Funeral
Home, Inc., 12% Ga. App. 224, 180 S.E.2d
256 (1971); Williams v. Nuckolls, 229 Ga.
48, 189 S.E.2d 82 (1972); Shaw v. Caldwell,
999 Ga. 87, 189 S.E.2d 684 (1972); Brown
v. Edwards, 229 Ga. 345, 191 S.E.2d 47
(1972); Bauder Finishing & Career
College, Inc. v. Kettle, 230 Ga. App. 422,
197 S.E.2d 381 (1973); Hite v. Waldrop,
930 Ga. 684, 198 S.E.2d 665 (1973);
Whitlock v. State, 230 Ga. 700, 198 S.E.2d
865 (1973); Myers v. United Servs. Auto.
Ass'n, 130 Ga. App. 357, 203 S.E.2d 304
(1973); Price v. Georgia Indus. Realty Co.,
132 Ga. App. 107, 207 S.E.2d 556 (1974);
Harwell v. Harwell, 233 Ga. 89, 209 S.E.2d
625 (1974); Thomas v. Home Credit Co.,
133 Ga. App. 602, 211 S.E.2d 626 (1974);
Allstate Ins. Co. v. Harris, 133 Ga. App.
567, 211 S.E.2d 783 (1974); National Bank
v. Cut Rate Auto Serv., Inc., 133 Ga. App.
635, 211 S.E.2d 895 (1974); Whitley
Constr. Co. v. Whitley, 134 Ga. App. 245,
213 S.E.2d 909 (1975); Southern Motors of
Savannah, Inc. v. Cleary, 134 Ga. App. 278,
91% S.E.2d 920 (1975); Adams v. Adams,
934 Ga. 139, 214 S.E.2d 561 (1975); Ivey v.
Ivey, 234 Ga. 532, 216 S.E.2d 827 (1973);
Green Acres Disct., Inc. v. Fried & Appell,
Inc, 135 Ga. App. 816, 219 S.E.2d 39
(1975); King v. Calhoun First Nat'l Bank,
136 Ga. App. 239, 220 S.E.2d 759 (1975);
CIVIL PRACTICE 9-12-40
Colodny v. Krause, 136 Ga. App. 379, 221
S.E.2d 239 (1975). Alcovy Realty Co. v.
Stone Mt. Abstract Co., 137 Ga. App. 597,
994 S.I.2d 519 (1976); Delta Airlines v.
Woods, 137 Ga. App. 693, 224 S.E.2d 763
(1976); Chilivis v. Dasher, 236 Ga. 669, 225
S.E.2d 32 (1976); Henderson v.
Metropolitan Atlanta Rapid Transit Auth.
996 Ga. 849, 225 S.E.2d 424 (1976): Taylor
v. Taylor, 138 Ga. App. 281, 226 S.E.2d 84
(1976); Moore v. Rowe, 238 Ga. 375. 283
S.E.2d 355 (1977); Ross v. State, 238 Ga.
445, 233 S.E.2d 381 (1977); Rothstein v.
First Nat'l Bank, 141 Ga. App. 526, 233
S.E.2d 802 (1977); Tingle v. Cate, 142 Ga.
App. 467, 236 S.E.2d 127 (1977); Colodny
v. Dominion Mtg. & Realty Trust, 142 Ga.
App. 730, 236 S.E2d 917 (1977);
International Paper Co. v. Kight, 239 Ga.
551, 238 S.E.2d 88 (1977); Lexington
Developers, Inc. v. O'Neal Constr. Co., 143
Ga. App. 440, 2338 S.E.2d 770 (1977);
Parnell v. Etowah Bank, 144 Ga. App. 794,
949 S.E.2d 487 (1978); Dunn v. Royal
Indem. Co., 145 Ga. App. 427, 243 S.E.2d
630 (1978); Paul v. Bennett, 241 Ga.’ 158,
944 S.E.2d 9 (1978); Smith v. Smith, 145
Ga. App. 816, 244 S.E.2d 917 (1978);
Cooper v. Public Fin. Corp., 116 Ga. App.
950, 246 S.E.2d 684 (1978); Madison, Lid.
v. Price, 146 Ga. App. 837, 247 S.E.2d 523
(1978); Cooper v. Mercantile Nat'l Bank,
147 Ga. App. 136, 248 S.E.2d 201 (1978);
Prince v. Prince, 147 Ga. App. 686, 250
S.E.2d 21 (1978); Kight v. Kight, 242 Ga.
563, 250 S.E.2d 451 (1978); P & J Truck
Lines v. Canal Ins. Co., 148 Ga. App. 3, 251
S.E.2d 72 (1978); Roberts v. Tomlinson,
Inc., 242 Ga. 804, 251 S.E.2d 543 (1979);
McBride v. Chilivis, 149 Ga. App. 603, 255
S.E.2d 80 (1979); Pace v. Merck, 149 Ga.
App. 807, 256 S.E.2d 73 (1979); Harris v.
Harris, 149 Ga. App. 842, 256 S.E.2d 86
(1979); Land v. Sellers, 150 Ga. App. 83,
956 S.E2d 629 (1979); Kellos v.
Parker-Sharpe, Inc, 245 Ga. 130, 263
S.E.2d 138 (1980); Federal Deposit Ins.
Corp. v. Windland Co., 245 Ga. 194, 264
S.E.2d 11 (1980); McCarthy v. Holloway,
945 Ga. 710, 267 S.E.2d 4 (1980); Durden
v. Barron, 155 Ga. App. 529, 271 S.E.2d
667 (1980).
Same Parties and Privies
Final judgment or decree of a court of
502
9-12-40
competent jurisdiction upon the merits
concludes the parties and their privies to
the litigation, and constitutes a bar to a new
action or suit upon the same cause of action
either before the same or any other
tribunal. Harney v. Wright, 80 Ga. App.
932,55: S.E.2d 835 (1949); Brown v.
Georgia Power Co., 371 F. Supp. 543 (S.D.
Ga. 1973), affd, 491 F.2d 117 (51h Cir),
cert. denied, 419 U.S. 838, 95 5. C1. 66, 42
L.Ed: 24 65 (1974).
A judgment is not conclusive as to one
who was not a party to the proceeding in
which it was rendered, nor as to one over
whom the court acquired no jurisdiction,
even though the latter may be named as a
party defendant in the proceeding.
Colodny v. Krause, 141 Ga. App. 134, 232
S.E.2d 597, cert. denied, 434 U.S. 892, 98
S.Ct. 267, 341. Ed. 2d 177 (1877).
Because, a personal judgment cannot be
obtained against a person who is not
named as a party defendant and properly
served in the action. Colodny v. Krause,
141 Ga. App. 134. 232 S.E.2d 597, cert.
denied, 434 U.S. 892, 98 S. Ct. 267, 54 L.
Ed. 24 177°¢1977).
One who obtained a judgment from a
court of competent jurisdiction will not be
heard to question its validity. Thomas v.
Travelers Ins. Co., 53 Ga. App. 404, 185
S.E. 922 (1936); Shaw v. Davis, 119 Ga.
App. 801, 168 S.¥..2d 853 (1964).
Issues in a second suit are concluded as
between parties and their privies if they
were made in the first suit for if, under the
rules of pleading and evidence, they could
have been put in issue. Roadway Express,
Inc. v. McBroom, 61 Ga. App. 223, 6
S.E.2d 460 (1939).
\
Parties are all such persons as were
directly interested in the subject matter,
had a right to make a defense, to adduce
testimony, to cross-examine witnesses, to
control the proceedings and to appeal the
judgment; privies are all persons who are
represented by the parties and claim under
them, all who are in privity with the parties,
the term privity denoting mutual or
successive relationship to the same rights of
property. Roberts v: Hill, 81 Ga. App. 185,
58 S.E.2d 465 (1950); Walka Mt. Camp,
No. 565, Woodmen of World, Inc. v.
VERDICT AND JUDGMENT 9-12-
Hartford Accident & Indem. Co., 222 ¢
249, 149 S.E.2d 365 (1966).
Parties includes privies. Robert v. Hill
Ga. App. 183, 58 S.E2d 465 «IY
Cincinnati, N.O. & T. Pac. Ry. v. hil
118 Ga. App. 293, 163 S.E.2d 438 (14
The reason that verdicts and judgm:
bind conclusively parties and privies o:
is because privies in blood, privies in «
and privies in law claim under the
against whom the judgment is render
and they claiming his rights are, of cou
bound ‘as he is; but as wo all
judgments are not conclusively bind
because it is unjust to bind one by
proceeding in which he had no opportu
to make a defense, to offer evidence
cross-examine witnesses, or to appeal, if
was dissatisfied with the judg
Blakewood v. Yellow Cab Co., 61 Ga. \)
149, 6 S.E.2d 126 (1939).
Successor to predecessor in {if
connotes privity. — A party has been lie
to be in privity with a party to the form
litigation when he bears the relationship
successor to a predecessor in ttle, a cou
que trust to a trustee or quasi-truste
beneficiary in estate to an administrator
principal to an agent or agent to
principal, a city to its treasurer; and in |
actions, where a party 1s one of a group
municipal taxpayers or citizens in wh
behalf expressly = or: by
implication the former suit was brough
a taxpayer or property owner
matter of public and general interest to
other taxpayers of such
subdivision.” College Park Land Co
Mayor of College Park, 48 Ga. App
173 S.E. 239 (1934) (decided under for
1910 Civil Code, § 4336).
The test of privity is to determi
whether one has privity with another, 1
whether the other has privity with the of
and then assume that such priviny
reciprocal. Gilmer v. Porterfield, 234
671.,:212:8.F.2d 842 (1975).
The general meaning of
includes those who claim under or in rig!
of parties. Blakewood v. Yellow Cab
61 Ga. App. 149, 6 S.E.2d 126 (1439)
And all questions between parties on:
and finally settled by a solemn deci
must be considered an end to (h
litigation. — They cannot be relitigated |
\
Obie!
NeCess,
“
upon
politi
priv
503
other actions directly or indirectly. Final
judgment of the court cannot be reviewed
between the same parties in the superior
court or on writ of error to the Supreme
Court. One of the prime objects of judicial
procedure is to forever settle and end
disputes between litigants, and courts
never look with favor on the unnecessary
prolongation of litigation, and particularly
disapprove attempts to ignore or evade
binding judgments. Lankford v. Holton,
196 Ga. 631, 27 S.E.2d 310 (1943); Rewis v.
Bennett, 213 Ga. 535, 100 S.E.2d 196
(1957); Smith v. Robinson, 214 Ga. 835,
108 S.E2d 317 (1959); Bowman v.
Bowman, 215 Ga. 560, 111 S.E.2d 226
(1959).
Regardless of the correctness of the trial
court’s decision, it cannot be relitigated.
Johnston v. Duncan, 227 Ga. 298, 180
S.E.2d 348 (1971).
Because, the principle which fixes the
absolute conclusiveness of a judgment of
a court of competent jurisdiction upon the
parties and their privies applies whether
the reasons upon which it was based were
sound or not, and even if no reasons at all
were given. McRae v. Boykin, 73 Ga. App.
67, 35 S.E.2d 548 (1945), cert. denied, 328
U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618
(1946). ;
Where both the husband and wife are
still in life that relationship alone does not
make them privies within the meaning of
this section. Russ Transp., Inc. v. Jones,
104 Ga. App. 612, 122 S.E.2d 282 (1961).
Those represented by a trustee are
bound by a judgment against him as such,
although they were not parties to the
proceeding in which the judgment was
rendered. Rushing v. Sikes, 175 Ga. 124,
165 S.E. 89 (1932). :
The judgment of a court of competent
jurisdiction is not conclusive as to third
persons. McDonald v. Wimpy, 204 Ga. 617,
50 S.E.2d 347 (1948).
Third-party actions are viewed as
separate and independent lawsuits. Fierer
v. Ashe, 147 Ga. App. 446, 249 S.E.2d 270
(1978).
Final judgments between the parties in
one third-party action have been held to
bar a subsequent third-party action
between the same parties. A judgment
adjudicating a claim between a third-party
9-12-40 CIVIL PRACTICE 9-12-40
plaintiff and a third-party defendant is
conclusive to the same extent as though
rendered in independent litigation
between them. Fierer v. Ashe, 147 Ga.
App. 446, 249 S.E.2d 270 (1978).
Proceedings quasi in rem are brought to
establish status, and not to set up rights in
or title to property; and judgments in such
proceedings are not conclusive against
third persons as to their rights in, or title to,
property where they have no notice or
opportunity to assert their rights. Elliott v.
Adams, 173 Ga. 312, 160 S.E. 336 (1931).
Plaintiff estopped from bringing
subsequent action when party to former
action. — While an adjudication of the
same subject matter in issue in a former suit
between the same parties by a court of
competent jurisdiction is an end of
litigation, the plaintiff is not estopped by
the judgment rendered in the court of
ordinary (now probate court) in a
proceeding to which she was not a party,
although she appeared as a witness therein.
McAfee v. Martin, 211 Ga. 14, 83 S.E.2d
605 (1954).
It was duty of plaintiff to put all claims
he had against any of his partners or to any
portion of the partnership funds, before
the court for adjudication, knowing that a
judgment is conclusive between the same
parties and their privies as to all matters
put in issue, or which under rules of law
might have been put in issue in the cause
wherein judgment was rendered. Camp v.
Lindsay, 176 Ga. 438, 168 S.E. 284 (1933).
Phrase “same parties” interpreted. —
While the phrase “same parties” does not
mean that all of the parties on the
respective sides of the litigation in the two
cases shall have been identical, it does mean
that those who invoke the defense and
against whom it is invoked must be the
same. A.R. Hudson Realty, Inc. v. Hood,
151 Ga. App. 778, 262 S.E.2d 189 (1979).
Verdicts and judgments rendered by
consent of counsel in good faith and
without any fraud or violation ol express
instructions given by the client to the
attorney and known to the adverse party or
his attorney are binding upon the client,
the consent of counsel being in law the
consent of the parties they represent.
Phoenix Properties of Atlanta, Inc. v.
Umstead, 245 Ga. 172, 264 S.E.2d 8 (1980).
504
9-12-40
A decree in a court of equity is
conclusive on all questions raised or
which could have been raised, relating to
the subject matter affected by such decree,
and the same will be a good cause of bar ol
an action subsequently brought between
the same parties upon the same subject
matter in a court of competent jurisdiction.
Crawford v. Baker, 86 Ga. App. 855, 72
S.E.2d 790 (1952).
Law of the Case
Editor's note. — Section 9-11-60(h)
abolishes the Law of the case rule, generally,
although providing that judgments and
orders shall not be set aside or modified
without just cause, and that rulings in the
appellate courts shall be binding in
subsequent proceedings in that case.
A decision by the Supreme Court is
controlling upon the judge of the trial
court, as well as upon the Supreme Court
when the case reaches that court a second
time. The principle in the decision may be
reviewed and overruled in another case
between different parties, but as between
the parties the decision stands as the law of
the case, even though the ruling has been
disapproved by the Supreme Court in a
case decided before the second appearance
of the case in that court. Walden v. Nichols,
204 Ga. 532, 50 S.E.2d 105 (1948).
Function of law of case rule when
judgment reversed. — When a case is
brought to the Court of Appeals and the
judgment of the trial court is reversed, all
questions as to pleadings and the effect of
evidence adjudicated by the court are
binding as the law of the case on said court
and, on a second trial of the case, on the
court below, unless additional pleadings
and evidence prevail to change such
adjudications. Parker v. State, 76 Ga. App.
238, 45 S.E.2d 692 (1947).
Failure to take exception renders
judgment law of the case, and a bar to
subsequent actions. — Where a petition
seeks both legal and equitable relief, and
the legal prayers are meritorious and the
equitable prayers are not, it is error to
dismiss the whole action on the ground that
the petition sets forth no cause of action,
for the equitable reliel should be stricken,
leaving a cause of action for legal relief.
Under this principle, the plaintiff, in a
50)
VERDICT AND JUDGMENT
9-12-40
prior action, should have excepted to the
court's dismissal of the whole action.
Having failed to so except, that judgment
became the law of the case, to the effect that
the petition alleged neither an equitable
nor a legal cause of action, and constitutes
a bar to the present action for the legal
relief only. Zeagler v. Zeagler, 192 Ga. 453,
15 S.E.2d 478 (1941); Owens v. Williams,
87 Ga. App. 238, 73 S.E.2d 312 (1952);
Ferrell v. Bell, 90 Ga. App. 573, 83 S.E.2d
616 (1954); Adanta Newspapers, Inc. v.
Tyler, 104 Ga. App. 707, 122 S.E.2d 591]
(1961).
A judgment of a trial court, which after
a writ of error (see §§ 5-06-49, 5-6-50)
stands unreversed, or to which no
exception has been taken, is the law of the
case. Ballard v. Harmon, 202 Ga. 603, 44
S.E.2d 260 (1947); Poore v. Rigsby, 207 Ga.
938. 60 S.E.2d 239 (1950); Oliver v. Central
of Ga. Ry., 210 Ga. 597, 8] S.E.2d 793
(1954): Seymour v. State, 210 Ga, 571, 81
S.E.2d 808 (195-1).
Motion for new trial not proper motion
to correct error in court’s judgment. — If
a plaintiff in error relies on a so-called
extraordinary motion for new trial as a
proper procedure to vacate and set aside
existing judgments, he is confronted with
the rule that a motion for new trial is not
the proper remedy to correct an alleged
error in any judgment or decree entered by
a trial court and his motion will be denied.
Sumner v. Sumner, 186 Ga. 390, 197 S.L.
833 (1938); Ballard v. Harmon, 202 Ga.
603, 44 S.E.2d 260 (1947).
Res Judicata
This state does not unswervingly
adhere to a rule of mutuality as it relates
to res judicata. Giliner v. Porterfield, 233
Ga. 671,212 S.E.2d. 842 (1975).
Mitchem v.
alkcom,
(1963). Ba
Townsend,
5S E.24%399 cert. denied, 377 U.S.
24-8:00- 1939.02 1. Fed 2d 1055
1009,
(1964).
Res judicata is designed to foreclose
collateral attack and to insure the integrity
5
9-12-40
of judgments rendered by courts olf
competent jurisdiction. Brown v. Georgia
Power Co., 371 F. Supp. 543 (S.D. Ga.
1973).
Res judicata is to be applied only when
the cause of action is the same. Slaughter
v. Slaughter, 190 Ga. 229, 9 S.E.2d 70
(1940); Forrester v. Southern Ry., 268 F.
Supp. 194 (N.D. Ga. 1967).
The question of res adjudicata must be
raised by a plea to that effect and cannot be
raised by demurrer (now motion to dismiss)
when the facts do not appear in the
petition. Owens v. Williams, 87 Ga. App.
238, 73 5.E.2d 512 (19532).
Under res judicata, a judgment of a
court of competent jurisdiction is
conclusive between the same parties and
their privies as to all matters putin issue, or
which under the rules of law might have
been put in issue in the cause wherein the
judgment was rendered, until such
judgment is reversed or set aside. Camp v.
Lindsay, 176 Ga. 438, 168 S.E. 284 (1933);
Scarborough v. Edgar, 176 Ga. 574, 168
S.E. 592 (1933), overruled on other
grounds, Jones v. Dean, 188 Ga. 319, ;
S.E.2d 894 (1939); Miles v. Johnson, 193
Ga. 492, 18 S.E.2d 831 (1942); Hubbard v.
Whatley, 200 Ga. 751, 38 S.E2d4. 753
(1946); C. Schomburg & Son v. Schaefer,
218 Ga. 659, 129 S.E.2d 854 (1963);
Booker v. Booker, 107 Ga. App. 339, 130
S.E.2d 260) (1963); Williams v.
Metropolitan Home Imp. Co., 110 Ga.
App. 770, 140 S.E.2d 56 (1964); Brown v.
Georgia Power Co., 371 F. Supp. 543 (S.D.
Ga. 1973); Patrick v. Simon, 237 Ga. 742,
229 S.E.2d 746 (1976).
It is fundamental that the legal liability
of one person to another person can be
ascertained only in an action brought
against such person by the other in a court
of competent jurisdiction. Colodny v.
Krause, 141 Ga. App. 134, 232 S.E.2d 597,
cert. denied, 434 U.S. 892,98 S. Ct. 267, 54
L. Ed. 2d4177 (1977).
It is not required that all the parties in
the two cases shall have been identical, but
it is sufficient as to identity of parties if
those by and against whom the defense of
res judicata is invokea n.the latter case
were real parties at interest or privies as (0
the controversy in the former case. Darling
Stores Corp. v. Beatus, 199 Ga. 215, 33 S.E.
9d 701 (1945).
CIVIL PRACTICE 9-12-40
Under doctrine of res judicata a party is
not estopped from questioning the
validity of an earlier judgment granting
temporary alimony where the original
judgment, rendered in a previous litigation
between the same parties, was based upon
a different cause of action from a
subsequent proceeding for contempt.
Powell v. Powell, 200 Ga. 379, 37 S.E.2d
191 (1946).
In order for the doctrine of res judicata
to apply, or for a party to take advantage of
the doctrine in a subsequent suit brought
against him after the termination of the
first, there are three prerequisites to which
the situation must conform. They are: (1)
identity of parties; (2) identity of the cause
of action; and (3) adjudication by a court of
competent jurisdiction. All of these
elements must concur. House v. Benton, 42
Ga. App. 97, 155 S.E. 47 (1930); Edwards
v. Carlton, 98 Ga. App. 230, 105 S.E.2d 372
(1958); Lewis v. Price, 104 Ga. App. 473,
122 S.E.2d 129 (1961); Life & Cas. Ins. Co.
v. Webb, 122 Ga. App. 344, 145 S.E.2d 63
(1965); Cincinnati, N.O. & T.P. Ry. v.
Hilley, 118 Ga. App. 293, 163 S.E.2d 438
(1968); Lowe v. American Mach. &
Foundry Co., 132 Ga. App. 572,208 S.E.2d
585 (1974); Janelle v. Seaboard C.L.R.R.,
524 F.2d 1259 (5th Cir. 1975); Firestone
Tire & Rubber Co. v. Pinyan, 155 Ga. App.
343, 270 S.E.2d 883 (1980).
The rules governing res judicata do not
compel one to join separate causes of
action in order to escape the penalties of
that doctrine. In order for the principles of
res judicata to apply so as to bind a plaintiff
as to any theory of his claim whether
invoked or not, the cause of action in both
cases must be the same. Spence v. Erwin,
200 Ga. 672, 38 S.E.2d 394 (1940).
The doctrine of res judicata will not be
applied on the theory of virtual
representation where the original action is
brought by a stranger to the subsequent
action solely on his own behalf to protect
his individual rights. Humthlett v. Reeves,
211 Ga. 210,:85 S.E.2d25: (1954),
Where a judgment is regular on its face,
the presumption is that there was
sufficient evidence to authorize it, and itis
conclusive as to the subject matter which it
purports to decide until it is reversed or
506 i
9-12-40
impeached for fraud; it cannot be attacked
collaterally on account ol any cirror or want
of regularity mn its exercise. Rowell v.
Rowell, 214 Ga. 377, 105 S.L.2d 19 (1958).
A judgment does not lose its
effectiveness as res adjudicata from the
fact that it is irregular or erroneous. —
Where a court has jurisdiction, it has a right
to decide every question which occurs in
the cause, and whether decision is
correct or otherwise, its judgment until
reversed is regarded as binding in every
other court. McRae v. Boykin, 73 Ga. App.
67, 35 S.E.2d 548 (1945), cert. denied, 328
U.S. 844, 66 S. C1. 1024, 90 L. Ed. 1618
(1946); Mitchell v. Arnall, 203 Ga. 384, 47
S.E.2d 258 (1948); Bentley v. Buice, 102
Ga. App. 101, 115 S.E.2d 706 (1960).
An irregular judgment is one that is
entered contrary to the manner of practice
and procedure allowed by law in some
material respect; where jurisdiction is once
attached, mere errors or irregularities in
the proceedings, although they may render
the judgment erroncous and subject to be
set aside in a proper proceeding for that
purpose, will not render the Judgment
void. Rowell v. Rowell, 214 Ga. 377, 105
S.E.2d 19 (1958),
When res judicata effect of issues cease.
— Issues which are made, or which under
the rules of law could have been made in
the cause, cease to be res judicata when the
Judgment therein rendered is set aside in a
court of competent jurisdiction. Saliba v.
Saliba, 202 Ga. 279, 42 S.E.2d 748 (1947).
Where a defendant is served, and
appears and pleads in the original suit, he
cannot inquire into the merits of the
original judgment, on a writ 10 revive the
judgment. It is not error to sustain a
demurrer (now motion to dismiss) and
strike the defendant's answer in such a
proceeding. McRae v. Boykin, 73 Ga. App.
67, 35 S.I.2d H48 (1945), cert. denied, 398
11.5..844, 66 5. Cr. 1024, 90 {.. Fd. 1618
(1946).
Res judicata prevents going behind
judgment and offering in defense to scire
facias evidence existing prior to
judgment. — On the general principle of
res adjudicata, which applies equally to
proceedings by scire lacias as to any other
action, and on the further ground that this
method of reviving a judgment is mevely a
1s
VERDICT AND JUDGMENT
507
9-12
supplementary step in the onginal ao
the defendant is absolutely precluded 1
going behind the judgment and of fein
defense to the scive facias any matter |
existed betore the rendition of the on
Judgment and might have been presen
in the former proceeding. MR.
Boykin, 73 Ga. App. 67, 35 S.E.2d
(1945), cert. dented, 328 U.S, 841, 64S
1024, 90 L. Fd. 1618 (1946).
State courts are competent to dec
federal constitutional questions nl
state court determination upon the nm
of such issues is res judicata abscnn
appeal through the state appellate sya
and ulumately to the United Siu
Supreme Court. Brown v. Georgia Pon
Co. 571. F. Supp.'543 (5.1: Ga, 14973)
Hence, the state court’s foreclosure
the constitutional issue is res judic.
upon the merits of the substantive isso
well as the procedural question concern
the method ol entry of judgment. Brown
Georgia Power Co, 371 F. Supp. 513 (5 |
Ga. 1973).
/ Effect on subsequent action wh
federal court retains pendent state clai
— If a federal court would have retain
Jurisdiction of a pendent state claim hud
been raised, then a i
VY res judlic.ad
Pope v. City of Atlant, "2HoNGTRES
1977).
Rationale against not applying
judicata. — When it does not apply the
judicata statute, the
S| LTT ns Pope v. City of Adanta, 240 Ga.
SE.2d 241 (1977).
State court must apply same rules use
by federal court in considering
judicata. — Where state claims whic!
“could have raised” in
litigation would have been pendent hh
they been presented to the federal coun
the state court, in applying its res judic.
statute, will use the same rules thu
been feder,
federal court would have used ns
determining whether it would exci
pendent jurisdiction. Pope v. City o
Atlanta, 240 Ga. 177, 240.-S.E 9d 211
(1977).
9-12-40
The Civil Rights Act, 42 U.S.C.A.
§§ 1971 et seq., 1983, attack upon final
state court judgments. Brown v. Georgia
Power Co., 371 F. Supp. 543 (S8.D. Ga.
1973).
A party is not estopped from
questioning the validity of an earlier
judgment granting temporary alimony
under the doctrine of res judicata, where
the original judgment, rendered in
previous litigation between the same
parties, was based upon a different cause of
action from a subsequent proceeding for
contempt. Powell v. Powell, 200 Ga. 379, 37
S.E.2d 191 (1946).
Action seeking conveyance of real
property not barred by decree in alimony,
etc., case. — A decree in an alimony and
divorce case does not bar a party under the
doctrine of res judicata from maintaining
an action against his former wife for the
conveyance of real property, which is based
on an entirely different cause of action
from that involved in the former alimony
and divorce case. Price v. Price, 205 Ga.
623, 54 S.E.2d 578 (1949).
Adverse divorce decree filed on ground
of cruel treatment no bar to second action
for divorce based on different acts. — A
party who has once filed an action for
divorce on the ground of cruel treatment,
which suit resulted in a verdict and decree
adverse to the libelant, is not barred from
thereafter filing a second petition on the
same ground, but based on different acts,
all of which were committed since the date
of the former trial. Slaughter v. Slaughter,
190 Ga. 229, 9 S.E.2d 70 (1940).
Where custody of a minor child was
vested in the mother by prior judgment, it
was conclusive against the father, and was
res judicata in habeas corpus proceeding by
father. Levens v. Edge, 217 Ga. 418, 122
S.E.2d 728 (1961).
The legitimacy of a child is a matter for
decision during the divorce proceedings.
— This issue is res judicata and cannot be
raised in a subsequent proceeding to
modify the divorce decree. Roberson v.
Fooster, 234 Ga. 444, 216 S.E.2d 273
(1975).
A party litigant who accepts benefits
under a divorce decree is estopped to set
it aside. Guess v. Guess, 242 Ga. 7806, 248
S.E.2d 528 (1979).
CIVIL PRACTICE 9-12-40
Jury needed to settle issue of res
judicata. — A court is not authorized to
settle the issue raised in a proper plea of res
adjudicata without the intervention of a
jury, though, in a proper case, it might
direct a verdict. Davenport v. Southern Ry.,
42 Ga. App. 160, 155 S.E. 340 (1930).
However, court properly sustained a
plea of res judicata where in a former suit
between the same parties in the same court,
concerning the same cause of action, a
petition identical in language was dismissed
on general demurrer (now motion to
dismiss) on the ground that the petition set
forth no cause of action, and the judgment
sustaining the demurrer in the previous
case was not excepted to. Sudderth wv.
Harris, 51 Ga. App. 654, 181 S.E. 122
(1935); Smith v. Bird, 189 Ga. 105, 5 S.E.2d
$36 (1939); Owens v. Williams, 87 Ga. App.
938, 73 S.E.2d 512 (1952); Smith v.
Southeastern Courts, Inc., 89 Ga. App.
789, 81 S.E.2d 226 (1954); Dykes v. Dykes,
9214 Ga. 288, 104 S.E.2d 430 (1958).
Judgment as to matter pleaded res
judicata when personal and subject matter
jurisdiction vested in court. — Where the
municipal court had jurisdiction of the
subject matter and of the parties, and,
although the defendant in that suit
defended upon the ground that the
plaintiffs right was an equitable one only
and was cognizable only in a court of
equity, the court nevertheless had
jurisdiction to determine this question, the
judgment against the defendant was res
judicata as to the matter pleaded and of the
plaints right to recover. Hood v. Bibb
Brokerage Corp., 48 Ga. App. 606, 173
SE. 236 (1934) (decided under former
1910 Civil Code, § 43306).
One who objects to setting apart of the
statutory homestead by a referee in
bankruptcy is not, by reason of that fact,
estopped by res judicata from enforcing
the lien of a judgment in his favor, based
upon a note waiving the benefits of his
homestead exemption. Rosenthal wv.
Langley, 180 Ga. 253, 179 S.E. 383, appeal
dismissed, 295 U.S. 720,55 S. Ct. 916, 79 L.
Ld. 1674 (1935).
A prior verdict and decree of cotenancy
did not estop the defendant from applying
for a partition, no such question being
involved in the original suit. Roberts v.
508
9-12-40 VERDICT AND JUDGMENT 9
Federal Land Bank, 180 Ga. 832, 181 S.k.
180 (1935).
An order confirming or refusing to
confirm a judicial sale, if unexcepted to, is
a final and conclusive judgment to the
same extent as any other adjudication by a
court of competent jurisdiction. Hurt
Bldg., Inc. v. Atlanta Trust Co., 181 Ga.
274, 182 5.F. 187 (1935).
Judgment cancelling fraudulent deed
no bar to action establishing last security
deed. — Judgment in an equitable action
for cancellation of a deed alleged to have
been obtained by fraud did not bar a later
action to establish a lost security deed and
note and to foreclose the same. Eaton v.
Weatherby, 239 Ga. 795, 239 S.E.2d 8
(1977).
Valid cause of action on account not
barred because former action found no
cause of action for equitable accounting.
— Where a judgment in a prior action
determined only that plaintiff's petition set
out no cause of action for equitable
accounting, but did not consider whether
defendant had a valid cause of action on
account against plaintiff, the doctrine of res
judicata is inapplicable to the filing of such
cross action by defendant. Eubanks v.
Electrical Wholesalers, Inc., 116 Ga. App.
56, 156 S.E.2d 502 (1967).
A judgment of a court of another
jurisdiction in the same cause of action
between the same parties is res judicata of
all questions that could have been heard
and determined in the case in which the
judgment was rendered. Gillis v. Adantic
C.L.R.R., 52 Ga. App. 5006, 184 S.E.. 79]
(1936).
Res judicata accorded judgments of
sister state properly rendered. — Under
the full faith and credit clause of the
United States Constitution, a judgment of a
court of competent jurisdiction in
Tennessee, if properly proved, may have
the effect of former adjudication mm matters
pending in the courts of this state. Roadway
Express, Inc. v. McBroom, 61 Ga. App.
233.6 S.E.2d 460 (1939).
Grant or denial of an ordinary motion
for new trial upon evidentiary grounds
may, like other decisions, [orm the basis ol
res judicata. Sumner v. Sumner, 186 Ga.
290,197 S.E. 833 (1938).
The doctrine of res adjudicata, oj
to claim cases, as well as to other
where the claim case in which
previous judgment was rendered in
the same cause of action as the p
litigation. Cox v. Hargrove, 205 Ga
S.E.2d $12 (1949).
Res adjudicata not bar to subse
action when former action res
because of misconception of 1
available. — The doctrine of res adjud
is not available as a bar to a subs
action if the judgment in the forme:
was rendered because of a miscon
of the remedy available or of the
form of proceedings, and unle
former judgment was based upon
merits. Densmore v. Brown, 83 Ga
3606, 64 S.E.2d 78 (1951).
Effect of adjudication on one
simultaneously pursued causes of a
— Where one is pursuing at the san
in different courts the same cause ol
against the same defendant
adjudication on the merits of on
conclude further action on the othe
v. Rich's, Inc., 81 Ga. App. 841, 60
402 (1950).
Under respondeat superior judg
favor of agent, etc., becomes res ju
in favor of principal, etc. — Whe
liability, if any, of the master («
person is purely derivative and depen
entirely upon the principle of resp
superior, a judgment on the merits i
of the agent or servant is res judi
favor of the principal or master thou
wits not a party to the action. "This ul
exemplification of the broader ul
which one whose lability is
derivative may claim the beneln
judgment in favor of the person
who his liability is derived, if not hi
grounds applicable only to the
Roadway Express, Inc. v. McBroom
App. 223, 6 S.E.2d 460 (1939): Gab
Vorterfield, 233 Ga, 671.2125.
(1975).
This is not to say that the mast
bound by his servant’s judgment i «
to use it as res judicata, for the mast
still sue the third person for damages
vehicle or other property damaged
collision, certainly where the [on
adjudication favored the servant and
509
9-12-40
where it went against him. Due process ol
law requires that the master, not having
been a party to the prior adjudication, have
his day in court. Gilmer v. Porterfield, 233
Ga. 671, 212 S.E.2d 842 (1975).
Servant not in privity with master. —
Although a master has privity with his
servant and can claim the benelit ol an
adjudication in favor of the servant, a
servant is not in privity with the master so
as to be able to claim the benefit of an
adjudication in favor of the master. Gilmer
v. Porterfield, 233 Ga. 671, 212 S.L.2d 842
(1975).
Determination in bankruptcy judgment
that corporation had not committed a
fraud did not flow with assets of the
company to ils successors in interest,
president, majority shareholder, and a new
company, especially where fraud in that
transfer on the part of such successors, who
were not parties to the first suit, was
alleged, and they could assert prior
judgment as a bar to suit under § 18-2-22.
Anderson Oil Co. v. Benton Oil Co., 246
Ga. 304, 271 S.E.2d 207 (1980),
At an interlocutory hearing the court
has no authority to dispose of a plea of res
judicata, and il evidence was otherwise
sufficient to warrant the exercise of the
court's discretion in granting the
interlocutory injunction, the plaintiffs were
entitled to such reliel, even though the
court, alter the introduction of evidence at
the trial term on the plea of res judicata,
might be authorized to direct a verdict in
favor of such plea. Perry v. Gormley, 183
Ga. 757, 189 S.E. 850 (1937).
When settlement or compromise
between parties enforced by court. —
When there is an honest difference of
opinion between parties, touching a
disputed claim, and especially if the
difference is of such a nature as to render
it at all doubtful as to who is correct, any
settlement or compromise of these
differences will be enforced by the courts,
and neither party will be allowed to defend
by showing that he was right in his original
contention. Mutual of Omaha Ins. Co. v.
Morris, 120 Ga. App. 525, 171 S.E.2d 378
(1969). :
Effect of not defensively pleading res
judicata. — Where the defendant, in
answer to plaintiff's petition, fails to file a
CIVIL PRACTICE 9-12-40
plea of res judicata at the appropriate time,
but relies upon res judicata as a ground for
a motion to set aside a judgment, it should
be overruled, since such matters are purely
defensive and do not afford grounds to
vacate or set aside the judgment. Walthour
v. Mock, 102 Ga. App. 811, 117 S.E.2d 885
(1960).
Summary judgment properly granted
when res judicata defense pleaded. —
Where a protestant in a processioning
proceeding pleads the defense of res
judicata and moves for summary judgment
on this ground, supporting the motion with
the record ofl a prior processioning
proceeding between the same parties
concerning the same issue of boundary and
in which the protestant obtained judgment
in his favor, and the applicant made no
contrary showing, a motion for summary
judgment is properly granted. Souther v.
Kichline, 124 Ga. App. 111, 183 S.E.2d 87
(1971).
Prior judgments have res judicata
applicability even default or summary
judgments, and the application of the
doctrine of res judicata in this manner does
not deprive a litigant of his right to “a day
in court.” Fierer v. Ashe, 147 Ga. App. 446,
249 S.E.2d 270 (1978).
If the demurrer (now motion to dismiss)
that was sustained in a former suit went to
the merits of the case, it may be relied on
under a plea of res judicata; Avery v.
Southern Ry., 47 Ga. App. 722, 171 S.E.
456 (1933); Sudderth v. Harris, 51 Ga.
App. 654, 181 S.E. 122 (1935); Gamble v.
Gamble, 204 Ga, 82, 48 S.E.2d 5140 (1948),
Jater appeal, 207 Ga. 380, 61 S.E.2d 836
(1950); ‘Dixon v. Dixon, 211 Ga. A422, 84
S.E2d 37 (1954); Vidalia Prod. Credit
Ass'n v. Durrence, 91 Ga. App. 368, Y4
S.E.2d 609 (1956); Smith v. Bank of
Acworth, 111 Ga. App. 112, 140 S.L.2d 888
(1965); General Shoe Corp. v. Hood, 121
Ga. App. 444, 174 S.E.2d 212 (1970).
Judgment not res judicata. — Where a
general demurrer (now motion to dismiss)
that does not go to the merits of the cause
of action is sustained, the judgment
sustaining the demurrer and dismissing the
action will not be res adjudicata in a
subsequent suit between the same parties
on the same cause of action. Buie v. Waters,
2049 Ga. 608, 74 S.E.2d 883 (1933).
510
36
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9-12-40
A judgment on demurrer (now motion
to dismiss), until reversed, concludes the
parties on all questions necessarily or
actually involved in the decision, but is not
conclusive of any other issue. Byrd wv.
Goodman, “195 Ga. 62], 25 S.E.2d 34
(1943).
Ruling action barred by res judicata on
motion to dismiss proper. — Where the
court, on demurrer (now motion to
dismiss), holds that the transaction upon
which a recovery is sought does not, as it is
alleged in the petition, constitute a cause of
action, and dismisses the action on this
ground, the judgment operates as a res
adjudicata, and bars a subsequent suit
between the parties on the same
transaction, though in the first case the
facts were untruly or improperly stated,
and if they had been truly and properly
stated, a cause of action would have been
disclosed. Woods v. Travelers Ins. Co., 53
Ga. App. 429, 186 'S.E. 467 (19306);
Redwine v. Frizzell, 186 Ga. 296, 197 S.E.
805 (1938); Hughes v. Henderson, 61 Ga.
App. 743, 7.8£.2d 317 (1940); Qwens vy,
Williams, 87 Ga. App. 238, 73 S.E.2d 512
(1952).
Estoppel by judgment
A plea of estoppel by judgment stems
from the doctrine of res judicata and is
available when there has been a former
adjudication of the same issues by the
parties or their privies, even though the
adjudication may not have been upon the
same cause of action. House v. Benton, 42
Gu. App. 97, 155 S.Exi47. (1930);
Thompson v. Thompson, 199 Ga. 692, 35
S.E.2d 262 (1945); Powell v. Powell; 200
Ga. 379, 37 S.E.2d 191 (1946); Blakely v.
Couch, 129 Ga. App. 625, 200 S.E.2d 493
(1973); Price v. Winn, 142 Ga. App. 790,
237 S.E.2d 409 (1977).
A different rule from that in this section
applies in regard to estoppel by judgment.
Scarborough v. Edgar, 176 Ga. 574, 168
S.E. 592 (1933), overruled on other
grounds, Jones v. Dean, 188 Ga. 319, 3
S.E.2d 894 (1939).
Estoppel by judgment occurs when the
issue determined in the prior proceeding
is the same as that in the subsequent
proceeding. Firestone Tire & Rubber Co. v.
Pinyan, 155 Ga. App. 343, 270 S.E.2d 883
(1980).
VERDICT AND JUDGMEN'] 9-12-1
Estoppel by judgment can arise
virtue of a judgment authorized by th
pleadings, rendered in previous litigat
between the same parties, based upon
altogether different cause of action. Cay
v. Toccoa Falls Light & Power Co., 16 (
App. 268.°167:S.E. 530 (1933).
To create estoppel by judgment t
parties must be the same or in pri
Forrester v. Southern Ry., 268 I. Supp. I
(N.D. Ga. 1967). National Hills Shop
Center, “Inc. Vv... Insurance Co.” of
America, 308 F. Supp. 248 (5.D. Ga. 1171
_Estoppel must be mutual. — Ther
one general rule, which is applicable ah!
to estoppel by record, by deed, and
equitable estoppel or estoppel in pais: th
is, that estoppels must be mutual. Strang:
can neither take advantage of, no
bound by an estoppel: its binding effect
between the immediate parties, the
privies in blood, in law, and by est
Gilmer, 132 Ga. App. 46
51074), alld, 233 Ga. 671
rr
There is an estoppel by judgment onl
as to such matters within scope of
previous pleadings as necessarily had tol
adjudicated in order for the previon
judgment to be rendered, or as to su
matters within the scope of the pleading
might or might not have been adjudicate
but which are shown by aliunde prool
have been actually liugated wn
determined.
And the
as opposed to a supporting evidentiary
“mediate” question. Forrester v. Southe
Ry W26SsENSHPPIIOP (N.D. Ga. 1967)
If a question comes collaterally before
court and is only incidentally consider
the judgment or decree 1s no estopp
Mortgage Bond & Trust Co. v. Colon
Hill Co. 175 Ga. 150, 165 S.K.25 (14)
Where a judgment is claimed as
estoppel, the burden is upon the pat
relying thereon to show that the particu
matter In controversy was necessarily
actually determined in his favor in
former litigation; and if itappears fron tl
record introduced in support of such chin
that several issues were involved mn tl
previous litigation, and the verdict a
judgment therein do not clearly show th
511
9-12-40
the particular issue was then decided,
before such claim can be sustained the
uncertainty must be removed by extrinsic
evidence showing that the issue was then
decided in favor of the party relying upon
such adjudication or estoppel. Gormley v.
Cleveland, - 187 Ga. 457, 200 S.E. 793
(1939); Gunnin v. Carlile, 195 Ga. 801, 25
S.E.2d 652 (1943).
Action to recover wrongfully taken
property different from divorce action. —
Where a divorce action did not as originally
filed pray for alimony or lor the recovery
of other property, it follows that as first
brought that action was based on a
different cause of action from the one in
the subsequent action, which sought
among other things to recover property
wrongfully taken from the wile before the
action for divorce was filed. Thompson v.
Thompson, 199 Ga. 692, 35 S.F.2d 262
(1945).
Under doctrine of estoppel by judgment
validity of earlier judgment cannot be
questioned. — Where a party, in
temporary alimony proceedings, contends
that he is not subject to a judgment
therefor because he had made a final
alimony settlement with his wile by
contract, under the doctrine of estoppel by
judgment, he is concluded in a subsequent
contempt proceeding from contending
RESEARCH
Am. Jur. 2d. ‘— 46 Am. Jur. 2d,
Judgments, § 379 et seq.
C.J.S. — 50 C.J.S., Judgments, §§ 734,
762, 863.
ALR. — Judgment against less than all
parties to contract as bar to action against
others, 1 ALR 1601.
Judgment in favor of less than all parties
to contract as bar to action against other
parties, 2 ALR 124.
Application of doctrine of res judicata to
item of single cause ol action omitted from
issues through ignorance, mistake, or
fraud, 2 ALR 534; 142 ALR 905.
Judgment against executor or
administrator qualified in one state as
binding upon an executor or administrator
CIVIL PRACTICE 9-12-40
that the judgment awarding temporary
alimony was void because he was never his
wife's lawful husband. Powell v. Powell, 200
Ga. 379, 37 S.F.2d 191 (1946).
An administrative decision may act as
an estoppel in a judicial proceeding
involving the same parties only where the
issue decided by the administrative body is
the same as that involved in the litigation.
Epps Air Serv., Inc. v. Lampkin, 229 Ga.
792, 194 S.E.2d 437 (1972).
Effect of finding that action barred by
statute of limitations or laches. — A
finding against a party, either upon final
hearing or demurrer (now motion to
dismiss), that his cause of action as shown
by him, is barred by the statute of
limitations or by laches is a decision upon
the merits, concluding the right of action.
Gamble v. Gamble, 204 Ga. 82, 48 S.E.2d
540 (1948), later appeal, 207 Ga. 380, 61
S.F.2d 836 (1950); Capps v. Toccoa Falls
Light & Power Co, 46 Ga. App. 268, 167
S.E. 530 (1933): College Park Land Co. v.
Mayor of College Park, 48 Ga. App. 528,
175 S.E. 7 289 © (1934): - Slaughter’ iv.
Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940);
Thompson v. Thompson, 199 Ga. 692, 35
S.E.2d 262 (1945); Powell v. Powell, 200
Ga. 379, 37 S.E.2d 191 (1946); Firestone
Tire & Lumber Co. v. Pinyan, 155 Ga. App.
343, 270 S.E.2d 883 (1980).
REFERENCES
of the same decedent, qualified in another,
3 ALR 64.
Judgment against claim based on
original form of indebtedness as ves
judicata as to claim based on new or
substituted obligation, 4 ALR 1173.
Rule against collateral attack as
applicable to temporary injunction, 12
ALR 1165.
Judgment on claim as har to action to
recover amount of payment which was not
litigated in previous action, 13 ALR 115].
Right of infant to set aside consent
judgment in action for personal injuries, 15
ALR 667; 20 ALR 1244.
Judgment in an
under another
statute, 2ONER O84 HE ALR275:
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9-12-40
Judgment in action on commercial paper
as affecting party to the paper who was not
a party to the suit, 340 ALR 152.
Judgment for rent for particula period
as bar to action for rent for subsequent
period, 42 ALR 128.
Conclusiveness ol decree assessing
stockholders of insolvent corporation as
against nonresident stockholders not
personally served within the state in which
it was rendered, 48 ALR 669: 175 ALR
1419.
Judgment in action lor services of
physician or surgeon as bar 10 action
against him for malpractice, 49 ALR BEY;
Suit in one state or country to enforce a
contract as regards real property therein as
a bar to suit in another state or country to
enforce the contract as regards the
property therein, 52 ALR 180.
Judgment in action between assignee
and third person as res judicata in action
arising out of sine transaction as assigned
claim between assignor and third person,
55 ALR 1037.
Conclusiveness of officer's return of
service of process on which judgment in
sister state was rendered, 59 ALR 1398.
Judgment in favor of defendant inaction
by personal representative for damage to
estate by injury resulting in death as bar to
action in behalf of statutory beneficiaries,
64 ALR 446.
Judgment in favor ol defendant or
respondent in an action or prog ceding
involving a matter of public right or
interest as a bar to a subsequent action or
proceeding by a different plainuft on
relator, 64 ALR 1262.
Rendition ol judgment against one not a
formal party, who has assumed the
defense, 65 ALR 1134.
Judgment in replevin as bar to action by
plaintiff for consequential damages for
wrongful scizure or
property, 69 ALR 655.
Error in excluding recovery lor future or
permanent damages as affecting the
operation of judgment as bay. or res
judicata in subsequent action to recover
future damages. 69 ALR 1001.
Judgment in action on accident or health
policy as res judicata or estoppel in
subsequent action involving same accident
or sickness, 70 ALR 1457.
VERDICT AND JUDGMENT
conversion of
9-12-40
Judgment in action or proceeding
involving an installment of an assessment
for a public improvement as res judicata as
regards other installments ol assessments,
74 ALR 880.
Right of assignee of judgment against
joint tort-feasors as between whom there is
no right of contribution, 75 ALR 1468.
Doctrine of res judicata as applied to
default judgments, 77 ALR2d 1410.
Necessity of verdict against servant or
agent as condition of verdict against maste:
or principal for tort of servant or agent, 78
ALR 365.
Successful defense by one codefendant,
or a {inding for “defendants,” as inuring to
benefit of defaulting defendant, 78 ALR
938.
Conclusiveness of judgment against
foreign corporation as to jurisdictional fact
of doing business within state where that
[act was contested, 80 ALR 719.
Reversal of judgment as affecting
another judgment based on the reversed
judgment and rendered pending the
appeal, 81 ALR 712.
Judgment in action in which matter was
asserted as a defense without seeking
allirmative relief as precluding use of such
matter as basis of an independent action,
offset, or counterclaim, 83 ALR 642.
Divorce decree as res judicata in respect
ol community property, 85 ALR 339.
Distinction between judgment as bar to
cause of action and as estoppel as to
particular fact, 88 ALR 574.
Denial of motion to dissolve temporary
restraining order, temporary or
preliminary injunction, or injunction
pendente lite as res judicata so as to
negative action on bond, 92 ALR 273.
Change of former decisions by court of
last resort as ground of reliel from decrees
or orders rendered or entered in the
interval in other cases, 95 ALR 708.
Judgment as res judicata of usury
notwithstanding question as to usury was
not raised, 98 ALR 1027.
Judgment in favor of defendant in action
for personal injuries as bar to suit for death
caused by such injuries, and vice versa, Y9
ALR 1001].
Judgment for plaintfl in action in tort or
contract against codefendants, as
conclusive in subsequent action between
EE a ct ee ti ss SA
9-12-40
codefendants as to the liability of both or
the liability of one and nonliability of the
other, 101 ALR 104; 142 ALR 727.
Homestead exemption as exception to
rule that judgment is conclusive as 10
defenses which might have been but were
not raised, 103 ALR 934.
Judgment in action for personal injuries
as res judicata or estoppel as to negligence
and contributory negligence in action for
damages to property in same accident and
vice versa, 104 ALR 973.
Judgment or order upholding prior
judgment in the same state against direct
attack upon ground of lack of jurisdiction,
as conclusive in another state under the full
faith and credit provision or doctrine of res
judicata, 104 ALR 1187.
Judgment in action for personal injuries
to or death of one person as res judicata or
conclusive of matters there litigated in
subsequent action for personal injury to or
death of another person in the same
accident, 104 ALR 1476.
Findings or order upon application for
alimony pendente lite in action for divorce
or separation as res judicata, 105 ALR
1406.
Conclusiveness of
demurrer, 106 ALR 437.
Judgment in action for conversion or to
recover possession of personal property,
resulting from defalcation or
misappropriation, as res
subsequent action for conversion or to
recover possession, 106 ALR 1425.
judgment on
When finding or adjudication as to one’s
mental condition by official or body not
clearly judicial is conclusive evidence or has
effect of a judgment as regards legal
mental status, 108 ALR 47.
Decree in suit by judgment creditor to set
aside conveyance in fraud of creditors as
bar to another suit for same purpose in
respect of another conveyance, 108 ALR
6099.
Advantage which the original trier of
facts enjoyed over reviewing court from
opportunity of seeing and hearing
witnesses, 111 ALR 742.
Judgment for plaindff in negligence
action as available to one who was not a
party to that action but who is made
defendant in a subsequent action as
derivatively responsible, 112 ALR 404.
CIVIL PRACTICE
judicata of
9-12-40
Tort damaging real property as creating
a single cause ol action or multiple causes
ol action in respect of dilferent portions of
Land of the same owner allected thereby,
FI7 ALR 1216,
Adjudication in fixing inheritance,
succession, or estate tax, as conclusive for
other purposes, 117 ALR 1227.
Judgment or order in connection with
appointment of executor or administrator
as res judicata, as law of the case, or as
evidence, on questions other than the
validity of the appointment, 119 ALR 594.
Judgment in action for personal injury
or death as res judicata as to negligence or
contributory negligence in subsequent
action for death in same accident of person
whose estate was represented by defendant
in first action, 119 ALR 1469.
Pleading waiver, estoppel, and res
judicata, 120 ALR 8.
Judgment against tort-feasor’s insurer in
action by injured person as res judicata in
similar action by another person injured in
same accident, 121 ALR 890.
Res judicata as regards decisions or
awards under workmen's compensation
acts, 192°A1LR 550,
Judgment in. action by third person
against insured as res judicata in favor of
indemnity or liability insurer which was not
a nominal party, 123 ALR 708.
Power, in absence of reservation by
statute or decree, to modify provision in
decree of divorce or separation as to
alimony or separate maintenance, 127 ALR
741.
Judgment in action between property
owner and public improvement district or
its officer as res judicata as against
certificate holders who were not parties,
128 ALR 392.
Doctrine of res judicata as applied to
judgments by default, 128 ALR 472; 77
ALR2d 1410.
Judgment in action by or against
corporation as res judicata in action by or
against stockholder or officer of
corporation, 129 ALR 1041.
Doctrine of res judicata in income tax
cases, 130 ALR 3874; 140 ALR 797.
Decree of court of domicil respecting
validity or construction of will, or admitting
it or denying its admission to probate, as
conclusive as regards real estate in another
state devised by will, 131 ALR 1023.
514
9-12-40
Judgment in action growing out ol
accident as res judicata, as to negligence or
contributory negligence, in later action
growing out of same accident by or against
one not a party to earlier action, 133 ALR
181; 23 ALR2d 710.
Necessity, as condition of effectiveness of
express [inding on a matter in issue to
prevent relitigation of question in later
case, that judgment in former action shall
have rested thereon, 133 ALR 840.
Ruling on creditor's claim in bankruptcy
as res judicata in subsequent proceeding by
trustee to recover voidable preference on
transfer, 134 ALR 1191: 165 ALR 1413.
Allowance or rejection of claim in
bankruptcy proceedings as res judicata in
independent action or proceeding between
the claimant and another creditor, 135
ALR 695.
Rule of res judicata as applied to judicial
construction of will, 136 ALR 1180.
Judgment as res judicata or conclusive as
to party's attorney who was not himsell a
party, 137 ALR 386.
Decree in suit lor separation as res
judicata in subsequent suit for divorce on
annulment, 138 ALR 3146; 90 ALR2d 7:15.
Judgment as conclusive as against, or in
favor of one not a party of record or privy
to a party, who prosecuted or defended suit
on behalf and in the name of party, o
assisted him or participated with him in its
prosecution or defense, 139 ALR 9.
Judgment as res judicata as to whether
insured is “permanently disabled” within
contemplation of msurance policy, 142
ALR 1170.
Res judicata as affected by limitation of
jurisdiction of court which rendered
judgment, 147 ALR 196; 83 ALR2d 977.
Finality, for appeal, of
judgment in federal court which disposes
of plaintiffs claim, but not of defendant's
counterclaim, or vice versa, 147 ALR 583.
purposes of
Conclusiveness as to merits of judgment
of court of foreign country, 1148 ALR 991.
Judgmentin wrongful death action as res
judicata in a subsequent action in same
jurisdiction for the same death under same
statute brought by or for benefit of
statutory beneficiary whose status as such
was ighored in the former action, 118 ALR
1346.
VERDICT AND JUDGMENT
Judgment
9-12-40
Res judicata. as affected: by newh
discovered evidence alter judgment, 149
ALR 1195.
Judgment in tax cases in respect ol one
period as res judicata in respect of another
period, 150 ALR 5; 162 ALR 1204.
Domestic decree of divorce based upon a
finding of invalidity of a previous divorce
in another state, as estopping party to the
domestic suit to assert, mm a subsequent
litigation, the validity of the divorce decree
in the other state, 150 ALR 465.
Validity and effect of former judgment
or decree’ as proper. subject: fo
consideration in declaratory action, 151
ALR 740.
Judgment in action for damages to rea
property situated in another state or county
as conclusive in respect of title, 158 ALR
362.
Judgment for or against ward, cestui que
trust, trustor, or distributee, as res judicata
as guardian, wtustee, assignee for
creditors, receiver,
representative, not a party to action oi
proceeding in which judgment
rendered, 162 ALR 1024.
Judgment based
instrument as res judicata of us validity,
164 ALR 873.
Reversal upon appeal by, or grant of new
trial coparty defendant against
whom judgment was rendered, as affecting
im favor of. others coparty
defendants, 166 ALR 563.
Validity and effect of judgment based
upon erroneous view as to constitutionality
or validity of a statute or ordinance going,
to the merits, 167 ALR 517.
Judgment for or against
fiduciary capacity as res judicata for oi
against him in his individual or a ditferent
LO
or personal
wis
{ on construction of
tO, one
person In
[iduciary capacity, or vice versa, 170 ALR
1180.
Conclusiveness of allowance of account
tustee
respects self-dealing in assets of estate, |
ALR2d 1060.
Dental of divorce in sister state or foreign
country as res judicata in another suit for
divorce between the same parues, 4 ALRZ2d
107.
Privity as between lessor or bailor and
lessee or bailee of personal property as
cllect judgment in thud
of or personal representative as
regards of
9-12-40
person's action for damages against lessee
or bailee as res judicata in lessor’s or bailor’s
subsequent action against third person for
damage to the property, or vice versa, 4
ALR2d 1378.
Judgment as res judicata pending appeal
or motion for a new trial, or during the
time allowed therefor, 9 ALR2d 984.
Judgment in suit for cancelation of
restrictive covenant on ground of change in
neighborhood as res judicata in suit for
injunction against
covenant on that ground, and vice versa, 10
ALR2d 357.
Extent to which principles of res judicata
are applicable to judgments in actions for
declaratory relief, 10 ALR2d 782.
Judgment for or against partner as res
judicata in favor of or against copartner not
a party to the judgment, 11 ALR2d 847.
Judgment avoiding indemnity or liability
policy for fraud as barring recovery from
insurer by or on behalf of third person, 18
ALR2d 891.
Judgment denying validity of will
because of undue influence, lack of mental
capacity, or the like, as res judicata as to
validity of another will, deed, or other
instrument, 25 ALR2d 657.
Decree granting or refusing injunction
as res judicata in action for damages in
relation to matter concerning which
injunction was asked in first suit, 26 ALR2d
446.
Divorce decree as res judicata in
independent action involving property
settlement agreement, 32 ALR2d 1145.
Judgment in bastardy proceeding as
conclusive of issues in subsequent bastardy
proceeding, 37 ALR2d 836.
Acquittal on homicide charge as bar to
subsequent prosecution for assault and
battery, or vice versa, 37 ALR2d 1068.
Effect of verdict “lor plaintiff” in action
against multiple defendants, 47 ALR2d
803.
Applicability of ves judicata to decrees or
judgments in adoption proceedings, 52
ALR2d 406.
Dismissal of civil action for want of
prosecution as res judicata, 54 ALR2d 473.
Judgment involving real. property
against one spouse as binding against other
spouse not a party Lo the proceeding, H8
ALR2d 701.
CIVIL PRACTICE
enforcement of
9-12-40
Conviction (rom which appeal is pending
as bar to another prosecution for same
offense, 61 ALR2d 1224.
Judgment determining question of
coverage of automobile liability policy as
between insurer and one claiming to be
insured as res judicata in subsequent action
by injured person against insurer, 69
ALR2d 858.
Judgment in action by or against
stockholder or corporate officer as res
judicata in action by or against corporation,
81 ALR2d 1323.
Judgment in {alse imprisonment action
as res judicata in later malicious
prosecution action, or vice versa, 86 ALR2d
1385.
Erroneous decision as law of the case on
subsequent appellate review, 87 ALR2d
27).
Circumstances under which court may
abate a prior action and permit parties to
proceed in subsequent action, 6 ALR3d
468.
Modern status of doctrine of res judicata
in criminal cases, 9 ALR3d 203.
Judgment in spouse’s action for personal
injuries as binding, as regards loss of
consortium and similar resulting damage,
upon other spouse nota party to the action,
12 ALR3d 933.
Judgment in action against codefendants
for injury or death of person, or for
damage to property, as res judicata in
subsequent action between codefendants as
to their liability inter se, 24 ALR3d 318.
Liability insurer's right to open or set
aside, or contest matters relating to merits
of, judgment against insured, entered in
action in which insurer did not appear or
defend, 27 ALR3d 350.
Mutuality of estoppel as prerequisite of
availability of doctrine of collateral
estoppel to a stranger to the judgment, 31
ALR3d 1044. :
Judgment in action against seller or
supplier of product as ves judicata in action
against manufacturer for injury from.
defective product, or vice versa, 34 ALR3d
H18.
Judgment in action on express contract
for labor or services as precluding, as a
matter of res judicata, subsequent action on
implied contract (quantum meruit) or vice
versa, 35 ALR3d 874.
516
os
S
E
W
a
d
Re
E
T
9-12-41
Decree allowing or denying specific
performance of contract as precluding, as a
matter or res judicata, subsequent action
for money damages for breach, 38 ALR3d
32%.
Judgment against parents in action for
loss of minor's services as precluding
minor's action for personal injuries, 41
ALR3d H36.
When does jeopardy attach in a nonjury
trial? 49 ALR3d 1039.
Acquittal in criminal proceeding as
precluding revocation of probation on
same charge, 76 ALR3d 564.
Effect, in subsequent proceedings, of
paternity findings or implications in
divorce or annulment decree or in support
9-12-41. Effect of judgment in rem.
VERDICT AND JUDGMENT 9-12-41
or custody order made incidental thereto
78 ALR3d 846.
Acquittal as bar to prosecution of
accused for perjury committed at trial, 89
ALR3d 1098.
Modern views of state courts as to
whether consent judgment is entitled to res
judicata or collateral estoppel effect, 91
ALR3d 1170.
Judgment in death action as precluding
subsequent personal injury action by
potential beneficiary of death action, or
vice versa, 94 ALR3d 676.
Right to probate subsequently
discovered will as affected by completed
prier proceedings in intestat
administration, 2 ALR4th 1315.
A judgment in rem is conclusive upon everyone. (Orig. Code 1863,
§ 3750; Code 1868, § 3774; Code 1873, § 3827; Code 1882, § 3827:
Civil Code 1895, § 5372; Civil
§ 110-502.)
Code 1910, § 5967; Code 14933,
JUDICIAL DECISIONS
A judgment strictly in rem binds only
those who could have made themselves
parties to the proceedings, and those who
had notice either actual or constructive by
the thing condemned being lirst seized into
the custody of the court. Elliott v. Adams,
173 Ga.:312,.160 S.E: 336 (1931).
When admitting in rem proceeding as
evidence improper. — Where the plaintfl
not having been a party to the in rem
proceeding and having no notice thereof,
actual or constructive, is not bound by the
judgment rendered therein, the trial judge
erred in admitting the in rem proceedings
and the judgment rendered therein, as
evidence over the objection of the plaintiff
that they were irrelevant and inumaterial,
Elliott v. Adams, 173 Ga. 312, 160 S.L. 336
(1931).
A proceeding under the
Land-Registration Act, Art. 2, Gh. 2:F.44
is, by express words, a proceeding in rem.
Rock Run Iron Co. v. Miller, 156 Ga. 136,
118 S.E. 670 (1923).
A suit for partition is not a proceeding
in rem under this section, nor is the final
judgment binding on any of the cotenants
who are not brought within the jurisdiction
of the court by some service of process
actual or constructive. Childs v. Hayman.
72 Ga. 791 (1884).
When a judgment is in rem against a
described piece of property, the defense
of excessive levy does not lie. Edwards
Decatur Bank & Trust Co., 176 Ga. [494,
167 S.E. 202 (1939).
Proceedings quasi in rem are brought to
establish status, and not to set up rights in
or title to property; and judgments in such
proceedings are not conclusive agains
third persons as to their rights in, or ttle to,
property where they have no notice oi
opportunity to assert their rights. Elliot
Adams, 178 Ga, 312, 160 §.E..336 (1931)
Cited in Carter v. Bush, 216 Ga. 429, 116
S.E.2d 568 (1960); Cureton vv. Cureton, 218
Ga. 88, 126 S.E.2d 666 (1962); Carswell «
Cannon, 110 Ga. App. 315, 138 S.E.2d 468
517
9-12-42
(1964); Save The Bay Comm, Inc ov.
Mayor ol Savannah, 227 Ga. 436, 181
RESEARCH
Am. Jur. 2d. 46 Am. 2d,
Judgments, § 379 et seq.
C.J.S. — 50 C.].S., Judgments, § 910.
ALR. Reversal ol judgment
alfecting another judgment based on the
reversed judgment and rendered pending
the appeal, 81 ALR 712.
Judgment against tort-feasor’s insurer in
action by injured person as res judicata in
similar action by another person injured in
same accident, 121 ALR 890.
Decree of court of domicile respecting
Jur.
das
Civil. PRACTICE 9-12-42
S.E.2d 351 (1971): Parris v. Skuon, 131 Ga.
App. 92, 205'8.E£.2d 671974).
REFERENCES
validity or construction of will, or admitting
it or denying its admission to probate, as
conclusive as regards veal estate in another
state devised by will, 131 ALR 1023.
Judgment involving real property
against one spouse as binding against other
spouse not a party to the proceeding, 58
ALR2d 701.
Jurisdiction on constructive or
substituted service, in divorce or alimony
action, to reach property within state, 10
ALR3d 212,
9-12-42. Judgment no bar absent decision on merits.
Where the merits were not and could not have been in question, a
former recovery on purely technical grounds shall not be a bar to a
subsequent action brought so as to avoid the objection fatal to the first.
For a former judgment to be a bar to subsequent action, the merits of the
case must have been adjudicated. (Civil Code 1895, § 5095; Civil Code
1910, § 5679; Code 1933, § 110-503.)
History of section. — This section is
derived from the decision in National Bank
v. Southern Porcelain Mig. Co., 59 Ga. 157
(1877).
JUDICIAL
Section 9-12-40 and this section provide
the primary basis for the laws relating to
conclusiveness of judgment. Gilmer v.
Porterfield, 233 Ga. 671, 212 S.E.2d 842
(1975).
The conflict between § 9-12-40 and
§ 9-2-44 and this section is reconciled by
the fact that § 9-2-44 and this section have
special application to estoppels hy
judgment, and § 9-12-40 applies where a
plea of res adjudicata is available. Camp v.
Lindsay, 176 Ga. 438, 168 S.L. 284 (1933).
Judgment upon the merits amounts to a
declaration of the law as to rights and
duties of parties, based upon the dltimate
facts and upon which the right of recovery
depended, and hence is a bar to action for
Id
a
Law reviews. — For note discussing the
requirement that an adjudication be on the
merits for the principles of ves judicata to
apply, see 11 Ga. L. Rev. 929 (1977).
DECISIONS
the same cause. Wood v. Wood, 86 Ga.
App. 32, 70.8.F.2d 545.(1952).
And for the former judgment to be a
bar, a bona fide adversary trial must have
taken place. Blakely v. Couch, 129 Ga.
App. 625, 200 S.E.2d 493 (1973).
If the former action was dismissed for
defects in the pleadings or for lack of
necessary parties or as a result of the
plaintifi’s misconception of the form of the
proceeding or for want of the jurisdiction
of the court to try the claim or in fact was
disposed of on any ground which did not
go to the merits of the action the judgment
rendered does not constitute a bar to
another suit. O'Kelley v. Alexander, 225
Ga. 32, 165 S.E.2d 648 (1969).
18
9-12-42
Dismissal based on willful failure to
comply with an order can have effect of
adjudication on the merits. However, a
dismissal which does not involve any
finding of willlulness but which is merely
an automatic action following a certain
lapse of time falls within the “purely
technical” rule of this section and cannot be
considered an adjudication which would
bar a - subsequent "action. Maxey v.
Covington, 126 Ga. App. 197, 190 S.E.2d
448 (1972).
Where a judgment is rendered in
conformance with an agreement to settle,
there has not been an adjudication upon
the merits, despite the wording of the
judgment. Blakely v. Couch, 129 Ga. App.
625, 200 S.E.2d 493 (1973).
Dismissal of a complaint for failure to
answer interrogatories operates as an
adjudication on the merits under
subsection (b) of § 9-11-41 absent the trial
court's specifying to the contrary. This is
consistent with this section, for there has
been an adjudication on merits by
operation of subsection (b) of § 9-11-41.
Old S. Inv. Co. v. Aetna Ins. Co., 124 Ga.
App. 697, 185 S.E.2d 584 (1971).
And an attachment against property of
the debtor is not a proceeding involving
the merits of the controversy. Hayes v.
International Harvester Co. of America, 52
Ga. App. 328, 183 S.E. 197 (1935),
Pleading sustained motion to dismiss in
bar of another suit. — A judgment
sustaining a general demurrer (now
motion to dismiss) to a declaration in an
action at law may be pleaded in bar to
another suit for the same cause. Dunton v.
Mozley, 42 Ga. App. 295, 153 S.E. 794
(1930).
Merits of the case not always
adjudicated when motion to dismiss
sustained. — A judgment sustaining a
general demurrer (now motion to dismiss)
to a petition seeking equitable reliel does
not necessarily adjudicate the merits of the
case, even though facts constituting a valid
legal cause of action may be set forth, since
the scope of such judgment may be limited
to a decision upon the question as to
whether the plaintiff was entitled to the
particular relief sought. Dunton v. Mozley,
42 Ga. App. 295, 155 S.E. 794 (1930).
VERDICT AND JUDGMENT 9-12-42
Subsequent action on same cause not
barred when previous decision not
rendered on the merits. — While the
judgment of a court upon demurrer (now
motion to dismiss) which decides the merits
of the cause may be pleaded in bar of
another suit for the same cause, this
principle has no application where the
previous decision of the court on the
demurrer did not pass upon the merits of
the cause, but reversed the trial court for
overruling a demurrer. Bowman wv.
Bowman, 209 Ga. 200, 71 S.E.2d 84 (1952).
Effect of not basing court’s judgment on
merits of the case. — Where a general
demurrer (now motion to dismiss) that
does not go to the merits of the cause of
action is sustained, the judgment sustaining
the demurrer and dismissing the action will
not be res adjudicata in a subsequent action
between the same parties on the same cause
of action. Buie v. Waters, 209 Ga. 608, 74
S.E.2d 883 (1953); Smith v. Southeastern
Courts, Inc., 89 Ga. App. 784, 81 S.E.2d
226 (1954); Dixon v. Dixon, 211 Ga. 122,
84 S.E.2d 37 (1954); Keith v. Darby, 104
Ga. App. 624,122 S.F.2d 463 (1961)
. Smith v. Bank of Acworth, 111 Ga. App.
112, 140 S.E.2d 888 (1965); Horton v.
Harvey, 221 Ga. 799, 147 S.F.2d 305
(1966).
Ruling disallowing claim in bankruptcy
for late filing not adjudication upon the
merits. — A judgment of a court of
bankruptcy disallowing a claim on the
ground that it was not filed within ume is
not an adjudication upon the merits of the
claim, and when thereafter, the holder of
such claim attempts to enforce same by levy
upon property of the bankrupt, it is error
to sustain an affidavit of illegality thereto
on the ground that the judgment of the
bankruptcy court was an adjudication that
the judgment was not a valid lien against
the property of the bankrupt. Georgia Sec.
Co. v. Arnold, 56 Ga. App. 532, 193 S.E.
366 (1937).
Dismissal of action for failure to make
necessary parties renders action
adjudicated on merits. — Where plainuff
in error had his bill of exceptions (see
§§ H-6-49, H5-6-50) dismissed, by the Court
of Appeals because he had failed to make
the necessary parties, the judgment
rendered by the lower court became final.
519
9-12-42 CIVIL PRACTICE 9-12-42
A reading of that judgment will disclose
that it was based upon the merits of the case
and not decided on a technicality. Tyndale
v. Manufacturers Supply Co., 209 Ga. 564,
74 S.E.2d 857 (1953).
Res judicata and estoppel by judgment
distinguished. — While res judicata
applies only as between the same parties
and upon the same cause ol action to
matters which were actually in issue or
which under the rules of law could have
been put in issue, estoppel by judgment
applies as between the same parties upon
any cause of action to matters which were
directly decided in the former suit. While
the phrase “same parties” does not mean
that all of the parties on the respective sides
of the litigation in the two cases shall have
been identical, it does mean that those who
invoke the defense and against whom it is
invoked must be the same. Firestone Tire &
Rubber Co. v. Pinyan, 155 Ga. App. 343,
270 S.E.2d 883 (1930).
Under rules of res judicata and estoppel
by judgment, in order for a former
decision to be conclusive, it must have
been based, not on purely technical
grounds, but at least in part on the merits
where under the pleadings they were or
could have been involved. Sumner v.
Sumner, 186 Ga. 390, 197 S.E. 833.(1938);
Hughes v. Cobb, 195 Ga. 213, 23 S.E.2d
701 (1942); Thompson v. Thompson, 199
Ga. 692, 35 S.E.2d 262 (1945); Powell v.
Powell, 200 Ga. 379, 37 S.E.2d 191 (1946);
King Sales Co. v. McKey, 105 Ga. App. 787,
125 S.E.2d 684 (1962).
In order for the doctrine of res judicata
to apply, or for a party to take advantage of
the doctrine in a subsequent suit brought
against him after the termination of the
first, there are three prerequisites to which
the situation must conform. They are: (1)
identity of parties; (2) identity of the cause
of action; and (3) adjudication by a court of
competent jurisdiction. All of these
elements must concur. Firestone Tire &
Rubber Co. v. Pinyan, 155 Ga. App. 343,
970 S.E.2d 883 (1980).
Use of res judicata to bar actions. —
Where the merits of plaintiff's case have
been passed upon by ajudgmentsustaining
a general demurrer (now’ motion to
dismiss), and dismissing the complaint, a
subsequent action between the same
parties, seeking the same reliel upon
substantially the same grounds, is barred
under the doctrine of res judicata. Smith v.
Bird, 189 Ga. 105, 5 S.E.2d 336 (1939).
Where a motion to dismiss an action for
want of prosecution is sustained by the
court and it appears from the record that
ground upon which this motion was
sustained was not a ground which
adjudicated the merits of the controversy,
such judgment of dismissal will not be bar
to a subsequent proceeding for the same
cause of action brought within the time
allowed by law. Floyd & Beasley Transf.
Co. v. Copeland, 107 Ga. App. 304, 130
S.E.2d 143 (1963).
When dismissal for failure to prosecute
res judicata. — When dismissal for failure
to prosecute is involuntary under
subsection (b) of § 9-11-41 court does not
specify that dismissal is without prejudice,
the dismissed action is res judicata as to
essentially the same action brought at a
later time, and the trial court does not err
in granting defendant's motion to dismiss.
Krasner v. Verner Auto Supply, Inc, 130
Ga. App. 892, 204 S.E.2d 770 (1974).
Ruling on motion to dismiss in
equitable proceeding becomes res judicata
against subsequent action at law. — If, the
ruling on general demurrer (now motion to
dismiss), in an equitable proceeding must
necessarily have adjudicated the question
as to whether or not a cause of action
existed, the ruling on such a demurrer
becomes res judicata as against a
subsequent action at law for damages on
the same cause. Dunton v. Mozley, 42 Ga.
App. 295, 155 S.E. 794 (1930).
Grant of habeas corpus by prior
judgment not res judicata in subsequent
extradition proceeding. — Where a
previous writ of habeas corpus in an
extradition proceeding was granted
because of the insufficiency of the
supporting documents or other technical
defects which may be subsequently
corrected, the prior judgment granting the
writ of habeas corpus will not be res
judicata ina subsequent extradition
demand brought to avoid the technical
objections [atal to the first proceeding.
Harris v. Massey, 241 Ga. 580, 247 S.E.2d
Hh (1978).
520
«
\
9-12-42 VERDICT AND JUDGMENT 9.12-42
Res adjudicata is not available as a bar
to a subsequent action if the judgment in
the former action was rendered because of
a misconception of the remedy available or
of the proper form of proceedings.
Densmore v. Brown, 83 Ga. App. 3606, 04
S.E.2d 78 (1951).
Where a judgment in a prior suit is
pending appeal, res judicata cannot be
sustained in bar of a present suit.
Montgomery v. DeKalb Steel, Inc., 144 Ga.
App. 191, 240 S.E.2d 741 (1977).
Effect of grant of summary judgment in
prior action in sustaining or overruling
res judicata plea in subsequent action. —
Where an order granting summary
judgment in a prior action is relied upon in
final support of a plea of res judicata in a
subsequent action, if that summary
judgment actually was an adjudication of
the merits, a plea in bar, or otherwise on
the merits, the plea of res judicata should
be sustained; however, if examination
shows that the summary judgment actually
was not an adjudication of the merits, a
dilatory plea, etc, the res judicata plea
should be denied. National Heritage Corp.
v. Mount Olive Mem. Gardens, Inc, 244
Ga. 240, 260 S.E.2d 1 (1979).
The doctrine of estoppel by judgment,
has reference to previous litigation
between the same parties, based upon a
different cause of action. Thompson Vv.
Thompson, 199 Ga. 692, 35 S.E.2d 262
(1945); Powell v. Powell, 200 Ga. 379, 37
S.E.2d 191 (1946).
Estoppel by judgment occurs when the
issue determined in the prior proceeding
is the same as that in the subsequent
proceeding. Firestone Tire & Rubber Co. v.
Pinyan, 155 Ga. App. 313, 270 S.E.2d 883
(1980). :
There is an estoppel by judgment only
as to matters within the scope of the
previous pleadings as necessarily had to be
adjudicated in order for the previous
judgment to be rendered, or as to such
matters within the scope of the pleadings as
might or might not have been adjudicated,
but which are shown by aliunde proof to
have been actually litigated and
determined. Thompson v. Thompson, 199
Ga. 692, 35 S.E.2d 262 (194D): Powell v.
Powell, 200 Ga. 379, 37 S.E.2d 191 (1946);
Firestone Tire & Rubber Co. v. Pinyan, 155
Ga. App. 343, 270 S.E.2d 883 (1980).
A party is not estopped from
questioning validity of an earlier
judgment granting temporary alimony
under the doctrine of res judicata, where
the original judgment, rendered In
previous litigation between the same
parties, was based upon a different cause of
action from a subsequent proceeding for
contempt. Powell v. Powell, 200 Ga. 379,37
S.E.2d 191 (1946).
But, under doctrine of estoppel by
judgment, validity of earlier judgment
cannot be questioned. — Where a party, in
temporary alimony proceedings, contends
that he is not subject to a judgment
therefor because he had made a final
alimony settlement with his wife by
contract, under the doctrine of estoppel by
judgment, he is concluded in a subsequent
contempt proceeding from contending
that the judgment awarding temporary
alimony was void because he was never his
wife's lawful husband. Powell v. Powell, 200
Ga. 379, 37 S.E.2d 191 (1946).
Original action praying for alimony and
subsequent action asking to recover
property based on different cause of
action. — Where a divorce action did not
originally pray for alimony or for recovery
of other property, that action was based on
a different cause of action from the one in
the subsequent action, which sought
among other things to recover property
wrongfully taken from the wife before the
suit for divorce was filed. Thompson v.
Thompson, 199 Ga. 692, 35 S.E.2d 262
(1945).
A plea of collateral estoppel is available
in a wrongful death action. Montgomery v.
DeKalb Steel, Inc., 144 Ga. App. 191, 240
S.E.2d 741 (1977).
Although lack of mutuality does not
preclude assertion of plea of collateral
estoppel, lack of privity does.
Montgomery v. DeKalb Steel, Inc, 144 Ga.
App. 191, 240 S.E.2d 741 (1977).
Rules of practice and procedure are not
technicalities, but, on the contrary, are
fundamentally important to the
administration of justice by the courts.
Tyndale v. Manufacturers Supply Ca., 209
Ga. D64, 74: 5.E.2d 857 (1953).
Cited in Loveless v. Carten, 64 Ga. App.
54. 5127S E9d 175 (1940); Hadden v.
h21
9-12-42
Fuqua, 194 Ga. 621, 22 S.E.2d 877 (1942);
Crenshaw v. Crenshaw, 198 Ga. h36, 32
S.E.2d 177 (1944); Wills v. Purcell, 198 Ga.
666, 32 S.E.2d 392 (1944); Parker v. Giles,
71 Ga. App.. 763, 32 S.E.2d 408 (1944);
Woodland Hills Co. v. Coleman, 73 Ga.
App. 409, 36 S.E.2d 826 (1946); Conner v.
Bowdoin, 80 Ga. App. 807, 57 S.E.2d 344
(1950); Wood v. Wood, 86 Ga. App. 32,70
S.E.2d 545 (1952); Bowman v. Bowman,
209 Ga. 200, 71 S.E.2d 84 (1952); William
v. Richards, 100 Ga. App. 501, 111 S.E.2d
632 (1959); Garland v. State, 101 Ga. App.
395, 114 S.E.2d 176 (1960); Banks v.
RESEARCH
Am. Jur. 2d. — 46 Am. Jur. 2d,
Judgments, § 477 et seq.
C.J.S. — 50 C.J.S., Judgments, § 635.
ALR. — Application of doctrine of res
judicata to item of single cause of action
omitted from issues through ignorance,
mistake, or fraud, 2 ALR 534; 142 ALR
905.
Jurisdiction of action by mother or child
for support of child born after divorce in
another state or country, 32 ALR 659.
Action or suit as abating mandamus
proceeding or vice versa, 37 ALR 1432.
Abatement by pendency of another
action as affected by addition or omission
of parties defendant in second suit, 44 ALR
806.
Judgment in action for services of
physician or surgeon as bar to action
against him for malpractice, 49 ALR 551.
Delegation to police officer of power to
direct street traffic, 60 ALR 504.
Error in excluding recovery for future or
permanent damages as affecting the
operation of judgment as bar or res
judicata in subsequent action to recover
future damages, 69 ALR 1004.
Judgment in favor of defendant in action
for personal injuries as bar to suit for
death caused by such injuries, and vice
versa, 99 ALR 1091.
Decree settling account of executor who
is also trustee as res judicata in respect of
his liability in capacity of trustee, 116 ALR
1290. ii
Necessity, as condition of effectiveness of
express finding on a matter in issue to
CIVIL PRACTICE 9-12-42
Sirmans, 218 Ga. 413, 128 S.E.2d 66
(1962); Smith v. Davis, 222 Ga. 839, 152
S.E.2d 870 (1967); Swinney v. Reeves, 224
Ga. 274, 161 S.E.2d 273 (1968); Ezzard v.
Morgan, 118 Ga. App. 50, 162 S.E.2d 793
(1968); Miami Properties, Inc. v. Fitts, 226
Ga. “300, 175 S.E.2d 22:(1970); Whitley
Constr. Co. v. Whitley, 134 Ga. App. 245,
91% S.E.2d 909 (1975); Lester v. Trust Co.,
144 Ga. App. 526, 241 S.E.2d 633 (1978);
Paul v. Bennett, 241 Ga. 158, 244 S.E2d 9
(1978); Madison, Ltd. v. Price, 146 Ga.
App. 837, 247 S.E.2d 523 (1978).
REFERENCES
prevent relitigation of question in later
case, that judgment in former action shall
have rested thereon, 133 ALR 840.
Judgment as conclusive as against, or in
favor of one not a party of record or privy
to a party, who prosecuted or defended suit
on behalf and in the name of party, or
assisted him or participated with him in its
prosecution or defense, 139 ALR 9.
Application of rule against splitting
cause of action, or of doctrine of res
judicata, to item of single cause of action
doctrine of res judicata, to item of single
cause of action omitted from issues
through ignorance, mistake, or fraud, 142
ALR 905.
Provision that judgment is “without
prejudice” or “with prejudice” as affecting
its operation as res judicata, 149 ALR 553.
Judgment in action for damages to real
property situated in another state or county
as conclusive in-respect of title, 158 ALR
362.
Judgment for defendant based on the
statute of limitations as bar to maintenance
of action in another state, 164 ALR 693.
Decree granting or refusing injunction
as res judicata in action for damages in
relation to matter concerning which
injunction was asked in first suit, 26 ALR2d
446.
Divorce decree as res judicata in
independent action involving property
settlement agreement, 32 ALR2d 1145.
Domestic divorce decree without
adjudication as to alimony, rendered on
personal service or equivalent, as
522
9-12-43
precluding later alimony award, 43 ALR2d
1387.
Dismissal of civil action for want ofl
prosecution as res judicata, 54 ALR2d 473.
Decree in suit for “separation” as res
judicata in subsequent suit for divorce or
annulment, 90 ALR2d 745.
Res judicata or collateral estoppel effect,
in states where real property is located, of
foreign decree dealing with such property,
32 ALR3d 1330.
VERDICT AND JUDGMENT 9-12-60
for labor or services as precluding, as a
matter of res judicata, subsequent action on
implied contract (quantum meruit) or vice
versa, 35 ALR3d 874.
Modern views of state courts as to
whether consent judgment is entitled to res
judicata or collateral estoppel effect, 91
ALR3d 1170.
Judgment in death action as precluding
subsequent personal injury action by
potential beneficiary of death action, or
Judgment in action on express contract vice versa, 94 ALR3d 676.
9-12-43. Parol evidence admissible.
Parol evidence shall be admissible to show that a matter apparently
covered by a judgment was not really passed upon by the court. (Orig.
Code 1863, § 2839; Code 1868, § 2847; Code 1873, § 2898; Code 1882,
§ 2898: Civil Code 1895, § 3743; Civil Code 1910, § 4337; Code 1933,
§ 3-608.)
JUDICIAL DECISIONS
(1932); Keith v. Darby, 104 Ga. App. 624,
122.5.F.2d 463 (1961).
Cited in Mortgage Bond & Trust Co. v.
Colonial Hill Co., 175 Ga. 150, 165 S.E. 25
ARTICLE 3
DORMANCY AND REVIVAL OF JUDGMENTS
9-12-60. When judgment becomes dormant; how dormancy prevented;
docketing.
(a) A judgment shall become dormant and shall not be enforced:
(1) When seven years shall elapse after the rendition of the
judgment before execution is issued thereon and is entered on the
general execution docket of the county in which the judgment was
rendered;
(2) Unless entry is made on the execution by an officer authorized
to levy return the same and the entry and the date thereof are entered
by the clerk on the general execution docket within seven years after
issuance of the execution and its record; or
(3) Unless a bona fide public effort on the part of the plainuff in
execution to enforce the execution in the courts is made and due
written notice of such effort specifying the time of the institution of the
523
tion for acquittal
ry speedy trial
he Court of Ap-
330 S.E.2d 171,
nt appealed from
winnett County,
acquittal. The
ha. App. 609, 332
r granting certio-
, Marshall, P.J.,
ision contained in
to State Court of
erceded by incon-
ceneral provision
edure law.
contained in spe-
o State Court of
erceded by incon-
general provision
edure law. O.C.
, Solicitor, Carey
or, Lawrenceville,
lountain, for Ivan
ensler.
F Justice.
in these cases for
termining wheth-
contained in spe-
ob the State Court
it give way to an
d in the general
riminal-procedure
ision in the Geor-
plementing legisla-
rules of practice
ss of courts in the
veals held that, in
a] requirement of
ule must give way
e agree with this
ee with the Court
EARS a iin,
Stedkement of a laws
NORRIS v. ATLANTA & WEST POINT R. CO. Ga. 835
Cite as 333 S.E.2d 835 (Ga. 1985)
of Appeals’ resolution of other issues In
these cases.
Judgment affirmed.
All the Justices concur.
W
(6) E key NUMBER SYSTEM
T
254 Ga. 684
NORRIS
VY.
ATLANTA & WEST POINT
RAILROAD CO.
No. 42298.
Supreme Court of Georgia.
Sept. 5, 1985.
Delivery service employee who drove
his truck upon railroad crossing into path
of approaching train brought negligence
action against railroad. Employee's wife
sought loss of consortium. The Superior
Court, Coweta County, William Flee J,
granted railroad’s motion for summary
judgment, and employee and wife appealed.
The Court of Appeals, 174 Ga.App. 389, 330
S.E.2d 151, affirmed. On grant of certiora-
ri, the Supreme Court, Clarke, J., held that:
(1) employee and his wife, who were not in
privity with delivery service corporation in
earlier action by railroad crew member
against corporation based on employee's
negligence, could not be barred from liti-
gating their action against railroad by res
judicata or collateral estoppel, even though
issue of employee's negligence was present
in earlier action; (2) binding precedent in
the sense of stare decisis was not applica-
ble to this action from earlier action; (3)
genuine issue of material fact existed as to
possible concurrent negligence of railroad,
precluding summary judgment; and (4)
“doctrine of binding precedent” was disap-
proved, as it applied to bind party contend-
ing for rights which had previously been
333 S.E.2d—19
adjudicated with negative results in subse-
quent litigation, even though not res judica-
ta, estoppel by judgment, nor collateral es-
toppel because parties were different.
Reversed.
Marshall, P.J., and Weltner, J., con-
curred in judgment only.
1. Judgment &=585(1), 668(1), 678(1)
For res judicata to act as bar of subse-
quent action, original and subsequent ac-
tion must be between identical parties or
their privies, and cause of action in each
suit must be identical. 0.C.G.A. §§ 9-12-
40, 9-12-42.
2. Judgment €=668(1), 678(1)
Collateral estoppel, like res judicata,
requires identity of parties or privity for
first action to act as bar of subsequent
action. 0.C.G.A. §§ 9-12-40, 9-12-42.
3. Judgment €=715(1)
Collateral estoppel, unlike res judicata,
does not require identity of the claim for
first action to preclude subsequent action,
but only precludes readjudication of issue
already adjudicated between parties or
their privies in a prior action. 0.C.G.A.
§§ 9-12-40, 9-12-42.
4. Judgment 696
Under certain circumstances, the mas-
ter, or, more rarely, the servant, may claim
benefit of prior adjudication in favor of the
other under doctrines of res judicata or
collateral estoppel. 0.C.G.A. §§ 9-12-40,
9-12-42.
5. Judgment 696
Master or servant who has never had a
day in court cannot be barred by prior
adjudication against the other under doc-
trines of res judicata or collateral estoppel.
6. Judgment S696
Delivery service employee and his
wife, who were not in privity with delivery
service corporation, could not be barred
from litigating their action against railroad
by res judicata or collateral estoppel, even
though issue of delivery service employee's
836 Ga.
negligence was present in action by rail-
road crew member against delivery service
corporation, in which crew member had
recovered, based on corporation's employ-
ee’s negligence.
7. Constitutional Law &=315
In all cases in which one not in privity
with those involved in prior adjudication
seeks to adjudicate a claim, due process
requires that the one who has not had his
day in court will not be barred by a prior
adjudication. U.S.C.A. Const.Amends. 5,
14; 0.C.G.A. §§ 9-12-40, 9-12-42.
8. Courts <=89
Stare decisis, unlike res judicata or col-
lateral estoppel, does not involve claim pre-
clusion or issue preclusion: it does not
work as a bar, but only dictates the conclu-
sion of law which will be made upon a
given set of facts. \
9. Courts ¢=89
Binding precedent, in the sense of
stare decisis, was not applicable to action
by delivery service employee and his wife
against railroad, where there was no princi-
ple of law laid down in earlier action by
railroad crew member against delivery ser-
vice corporation, based on employee’s negli-
gence, in which corporation was found neg-
ligent, that would dictate a given result in
employee’s action against railroad.
10. Judgment &181(33)
Genuine issue of material fact existed
as to possible concurrent negligence of rail-
road so as to preclude summary judgment,
even though delivery service employee who
brought action against railroad had been
implicitly adjudged negligent by verdict
against delivery service corporation in ear-
lier action.
11. Constitutional Law ¢=315
Courts &=89
“Doctrine of binding precedent” was
disapproved, as enunciated by the Court of
Appeals as binding party contending for
rights which had previously been adjudi-
cated with negative results in subsequent
litigation, even though former judgment
was not res judicata, estoppel by judgment,
333 SOUTH EASTERN REPORTER, 2d SERIES
nor collateral estoppel because parties were
different; applied thusly, doctrine was vio.
lative of due process, although it might
promote judicial economy. U.S.C.A. Const,
Amends. 5, 14.
L. Lin Wood, Jr., John O. Moore, Wood,
Moore & Grant, Atlanta, Thomas F. Brown,
II, Burdine & Brown, Decatur, for William
F. Norris, et al.
Willis Haugen, A. Mitchell Powell, Jr,
Sanders, Mottolla, Haugen & Goodson,
Newnan, for Atlanta & West Point R. Co.
Alton D. Kitchings, Savannah, Manley F.
Brown, Macon, David N. Rainwater, Cor-
dele, (amicus).
CLARKE, Justice.
We granted certiorari in this case to de-
cide whether the “doctrine of binding
precedent” should be recognized in Geor-
gia. We conclude that it should not.
Norris, an employee of Signal Delivery
Service, Inc. (SDSI) drove a delivery truck
on the tracks of the railroad. The truck
was hit by a train. As the train braked and
hit the truck, a crew member was injured.
The crew member sued SDSI in the Superi-
or Court of Fulton County, alleging that
his back injury was caused by the negli
gence of SDSI’s employee Norris. SDSI
defended on the theory that the injury was
caused by failure of the railroad to provide
a safe crossing and by the crew member's
own negligence. The jury awarded a ver-
dict of $20,000 to the crew member.
The present suit was filed in the Superior
Court of Coweta County by Norris and his
wife against the railroad for injuries to
Norris and Mrs. Norris’ loss of consortium.
The railroad moved for summary judg-
ment, relying on res judicata and collateral
estoppel. The trial court granted summary
judgment, and the Court of Appeals af-
firmed, finding that the Norrises were pre-
cluded from suing the railroad under the
“doctrine of binding precedent” because
the issue of Norris’ negligence had been
fully litigated. Norris v. Atlanta & West
NORRIS v. ATLANTA & WEST POINT R. CO. Ga. 837
Cite as 333 S.E.2d 835 (Ga. 1985)
€ parties were Point Railroad Co., 174 Ga.App. 389; 330 In the present case Mr. and Mrs. Norris are
trine was vio- S.E.2d 151 (1985). ~ not in privity with SDSI. Therefore they
Moore, Wood,
nas F. Brown,
r, for William
| Powell, Jr.,
& Goodson,
Point R. Co.
hh, Manley F.
inwater, Cor-
is case to de-
of binding
ized in Geor-
Id not.
nal Delivery
elivery truck
The truck
n braked and
was injured.
n the Superi-
lleging that
y the negli-
orris. SDSI
le Injury was
hd to provide
»w member's
arded a ver-
'mber.
the Superior
orris and his
"Injuries to
' consortium.
mary judg-
nd collateral
ed summary
Appeals af-
es were pre-
d under the
nt” because
ce had been
nta & West
“A judgment of a court of competent juris-
diction shall be conclusive between the
same parties and their privies as to all
matters put in issue or which under the
rules of law might have been put in issue in
the cause wherein the judgment was ren-
dered until the judgment is reversed or set
| aside.” OCGA § 9-12-42 provides that
| “For a former judgment to be a bar to
| subsequent action, the merits of the case
must have been adjudicated.” These code
| sections together set out the basic princi-
| ples of res judicata in Georgia. For res
judicata to act as a bar of a subsequent
action, the original and subsequent action
must bear certain identical characteristics.
The two actions must be between identical
parties or their privies, and the cause .of
action in each suit must be identical. Col-
lateral estoppel, like res judicata, requires
identity of parties or privity. However,
unlike res judicata, collateral estoppel does
not require identity of the claim but only
precludes readjudication of an issue al-
ready adjudicated between the parties or
their privies in a prior action. Sumner v.
Sumner, 186 Ga. 390, 197 S.E. 833 (1938).
[4-6] As Judge Carley pointed out in
his dissent, Norris v. Atlanta & West
Point Railroad Co., supra, 174 Ga.App. at
396, 330 S.E.2d 151, the matter of res judi-
cata or collateral estoppel is complicated in
master-servant cases by the principle of
derivative liability. Although under cer-
tain circumstances the master or, more
rarely, the servant, may claim the benefit
of a prior adjudication in favor of the other,
McNeal v. Paine, Webber, Jackson & Cur-
tis, Inc., 249 Ga. 662, 293 S.E.2d 331 (1982);
Gilmer v. Porterfield, 233 Ga. 671, 212
S.E.2d 842 (1975), the master or servant
who has never had a day in court cannot be
barred by a prior adjudication against the
other. “[A]n agency or master-servant re-
lationship [does not] ipso facto [constitute]
privity for purposes of res judicata or es-
toppel by judgment.” Davis v. Bryant,
117 Ga.App. 811, 812, 162 S.E.2d 249 (1968).
ugh it might [1-3] OCGA § 9-12-40 provides that cannot be barred from litigating their ac-
.S.C.A. Const. tion against the railroad by res judicata or
collateral estoppel even though the issue of
Norris’ negligence was present in the Ful-
ton County action.
The Court of Appeals based its holding
that the Norrises are barred not on res
judicata or collateral estoppel but, rather,
on the “doctrine of binding precedent.”
This precept, first enunciated by the Court
of Appeals in Bray v. Westinghouse Elec-
tric Corp., 103 Ga.App. 783, 120 S.E.2d 628
(1961), was explained in Lowe Engineers v.
Royal Indemnity Co., 164 Ga.App. 255,
259, 297 S.E.2d 41 (1982), as follows: ‘“Sue-
cinctly stated, that doctrine provides where
the issue of liability has previously been
adjudicated with negative results for a par-
ty contending for the same rights in subse-
quent litigation, the former judgment, al-
though not res judicata, estoppel by judg-
ment nor collateral estoppel as to the
present action because the parties are dif-
ferent, does constitute binding precedent,
inasmuch as the controlling issue ... has
already been adjudicated under substantial-
ly similar allegations.” :
[71 This court has never accepted the
“doctrine of binding precedent,” and we
have found no other jurisdiction which has
done so. As used by the Court of Appeals
the “doctrine” is a species of collateral
estoppel in which no privity is required.
Our treatment of Stapleton v. Palmore,
250 Ga. 259, 297 S.E.2d 270 (1982), can be
interpreted as a rejection of the “doctrine.”
In Stapleton v. Palmore we affirmed the
Court of Appeals’ ruling that a subsequent
suit for loss of consortium was not barred
by an earlier verdict for a defendant on the
question of liability for the injured party's
injuries. The situation seems identical to
those in which the “doctrine of binding
precedent” has been applied by the Court
of Appeals. Although in the present case
the Court of Appeals tries to distinguish
loss of consortium cases in which spouses
seek different damages for different inju-
ries in separate actions, we find this a
838 Ga.
distinction without a difference. For in all
cases in which one not in privity seeks to
adjudicate a claim, due process requires
that the one who has not had his day in
court will not be barred by a prior adjudica-
tion.
[8] A search of opinions-from other jur-
isdictions reveals that the term “binding
precedent” refers to the doctrine of stare
decisis. See, e.g., Miller Building Supply,
Inc. v. Rosen, 485 A.2d 1023, 1027, n. 2, 61
Md.App. 187 (1985); State v. King, 413
N.E.2d 1016 (Ind.App.1980); Southwestern
Warehouse Corp. v. Wee Tote, Inc., 504
S.W.2d 592 (Tex.Civ.App.1974). According
to Black’s Law Dictionary, stare decisis is
the doctrine that “... when court has once
laid down a principle of law as applicable to
a certain state of facts, it will adhere to
that principle, and apply 'it to all future
cases, where facts are substantially the
same.” Stare decisis, unlike res judicata or
collateral “estoppel, does not involve claim
preclusion or issue preclusion. It does not
work as a bar but only dictates the coneclu-
sion of law which will be made upon a
given set of facts.
[9] Binding precedent in the sense of
stare decisis is not applicable to this case.
There was no principle of law laid down as
a result of the Fulton County action which
would dictate a given result in the Coweta
County action.
[10] Finally, summary judgment on the
basis that there were no material issues of
fact and Norris’ negligence was established
as a matter of law is not appropriate in this
case. There are questions of fact remain-
ing in this case concerning the possible
negligence of the railroad. The fact that
Norris may have been adjudged negligent
does not reach the question of the possible
concurrent negligence of the railroad. The
possibility remains that his injuries could
have been proximately caused by the negli-
gence of the railroad as well as his own.
Thé comparative negligence rule would
then apply.
[11] Therefore, Mr. and Mrs. Norris,
who have never had an opportunity to liti-
333 SOUTH EASTERN REPORTER, 2d SERIES
gate their claims may n
asserting these claims by res judicata op
collateral estoppel. Summary judgment ig
not appropriate in this case because materi.
al issues of fact remain, Finally,
prove the “doctrine of binding p
enunciated by the Court of Appeals and
find that although it may promote judicial
economy it is violative of due process,
Judgment reversed.
ot be barreqd from
we disap-
recedent”
All the Justices concur, except MAR-
SHALL, PJ, and W ELTNER, J., who ¢
cur in the judgment only.
on-
OE ey NUMBER SYSTEM
175 Ga.App. 503
O’KELLEY :
,
The STATE.
No. 69900.
Court of Appeals of Georgia.
June 17, 1985.
Rehearing Denied July 16, 1985.
Defendant was convicted in Superior
Court, Gwinnett County, Merritt, J., of
three counts of child molestation, five
‘counts of aggravated sodomy, and one
count of rape. Defendant appealed. The
Court of Appeals, Beasley, J., held that: (1)
trial court correctly instructed jury that
defendant’s discussion of case with his
daughter on evening previous to her testi :
mony could be considered by jury in weigh-
ing daughter's credibility; (2) trial court
did not err, nor was defendant's constitu-
tional right of confrontation violated,
where defense counsel was not supplied
‘with copies of shorthand notes of state
ments made by defendant during is
interrogation, but was instead provid o
with statements made from those shor
Tye TR Nr yy er ek
Gene A law; Net a pavh TO p rior Pr
Pieced ing
BLACKBURN v. BLACKBURN Ga. 193
Cite as 308 S.E.2d 193 (Ga.App. 1983)
mn for contribu- | 168 Ga.App. 66 rental rights will be found. O.C.G.A.
plomat Restau-
188 S.E.2d 412,
applicable state
ong joint tort-
er plaintiff has
Lance, it is_clear
pbther joint tort-
this claim for
at contribution
until the orig-
st in judgment
ent impleader;
ay be so fash-
ts of the other
ant’s judgment
ot be enforced
paid plaintiff’s
s proportionate
may require.”
e’s third-party
upon potential
ht tortfeasors.
alleges that if
plaintiffs are
ntiff, and if the
also negligent
s a contributing
ries, the third-
5 a contribution
{s (the Hydes).
ad a third-party
If negligence
arty defendant
the third-party
ntribution and
Lo the third-par-
bons stated, the
g the third-par-
MURRAY, PJ,
BLACKBURN
Y.
BLACKBURN.
No. 66682.
Court of Appeals of Georgia.
Sept. 6, 1983.
Rehearing Denied Sept. 21, 1933.
Certiorari Denied Oct. 6, 1983.
Father petitioned for custody of child
who was in custody of mother. The Superi-
or Court, Burke County, Mulherin, J.
awarded custody to the father, and the
mother appealed. The Court of Appeals,
Deen, P.J., held that evidence was suffi-
cient to support the trial court’s conclusions
that the father’s circumstances had dramat-
ically improved, the mother’s circumstances
had worsened, and that the father presently
offered the child material and emotional
support superior to that provided by the
mother, and the trial court was thus autho-
rized to award custody of the child to the
father.
Affirmed.
1. Divorce &=303(2)
As between natural parents, change in
custody of minor child may be awarded only
upon a showing of change in material condi-
tions or circumstances of the parties or
child, subsequent to original decree of di-
vorce or award of custody, and that change
of custody would be in best interests of
child. 0.C.G.A. § 19-9-1(b).
2. Parent and Child &2(12)
Between third party and natural par-
ent, parent is entitled to custody unless it is
shown by clear and convincing evidence
that parent either has lost parental right to
custody or is unfit. O0.C.G.A. §§ 19-7-1,
19-74.
3. Parent and Child &2(3.7, 11)
Parental power may be lost by volun-
tary contract, but evidence must establish
clear, definite, and unambiguous terms of
such contract before relinquishment of pa-
§ 19-7-1(b).
4. Divorce =303(7)
Evidence that father and his family
discussed their conviction that child’s moth-
er should not have custody of child, and
that, after considering their respective cir-
cumstances, agreed that paternal grand-
mother had better prospect of successfully
petitioning for custody, was insufficient to
establish that father’s failure to oppose
grandmother’s petition for custody of child
was clear, definite, and unambiguous con-
tractual relinquishment of father’s parental
rights. 0.C.G.A. § 19-T-1(b).
5. Attorney and Client &=77
Generally, statement before court by
attorney relating to conduct of his client is
binding on client, absent showing of fraud
or mistake.
6. Attorney and Client 78
Rule that statement before court by
attorney relating to conduct of his client is
binding on client was inapplicable where
attorney made assertion prior to creation of
attorney-client relationship and was thus
without authority to act on client's behalf.
7. Divorce =303(1)
Trial court properly decided child custo-
dy case as one involving two natural par-
ents, and not as one between parent and
third party, despite mother’s contention
that father, in agreeing in earlier proceed-
ing to allow paternal grandmother to obtain
custody of child, had voluntarily waived his
parental rights and was thus in position of
third party and not natural parent.
8. Parent and Child e=2(22)
Where change of custody has been
awarded because of material change of con-
ditions affecting welfare of child, Court of
Appeals will affirm if there is reasonable
evidence to support decision.
9. Parent and Child &2(22)
While standard of appellate review in
custody disputes between third party and
natural parent is whether after reviewing
evidence in light most favorable to appellee,
194 Ga.
any rational trier of fact could have found
by clear and convincing evidence that natu-
ral parent's rights to custody have been
lost, standard of review could not be ex-
tended to cases involving custody dispute
between natural parents.
10. Divorce &=303(7)
In child custody proceeding, evidence
that father’s circumstances had dramatical-
ly improved since original award of custody,
and that mother’s circumstances had wors-
ened, were sufficient to sustain trial court's
award of custody of child to father.
11. Parent and Child &¢=2(18)
Father's petition for custody was not
barred by doctrines of res judicata or estop-
pel by judgment, since father and paternal
grandmother could not be considered privies
in earlier action by paternal grandmother
to obtain custody, father had not actually
waived father’s parental rights in favor of
paternal grandmother, and dispositive issue
in child custody proceeding differs when
natural parent seeks custody and when
third party so petitions.
12. Judgment ¢=713(2), 720
Res judicata bars relitigation of any
matter or cause of action that was, or could
have been, put in issue and adjudicated in
prior proceeding between same parties,
while estoppel by judgment prevents reliti-
gation in subsequent suit, involving differ-
ent cause of action, of matter which was
actually adjudicated in former case. O.C.
G.A. § 9-12-40.
13. Judgment ¢=665, 678(1)
Neither defense of res judicata nor es-
toppel by judgment is available unless sub-
sequent suit is between same parties or
their privies.
14. Estoppel ¢=68(1)
Father was not equitably estopped
from seeking custody of child by any action
of his in earlier proceeding by paternal
grandmother against mother to obtain cus-
tody, since mother failed to demonstrate
any harm or disadvantage presented by fa-
ther’s nonjoinder in earlier case, and injury
is essential for equitable estoppel, and since
308 SOUTH EASTERN REPORTER, 2d SERIES
father could not be classified as indispens-
able party to prior proceeding.
15. Divorce ¢=312.2
In child custody proceeding, mother
waived any objection to admission of can-
celled checks which father had failed to
produce by failing to object.
16. Divorce ¢=312.2
Court of Appeals could not address
mother’s argument regarding admission of
medical records which father had failed to
produce, since exception made on appeal
differed from that made at trial of child
custody proceeding.
17. Divorce ¢=85
Sanctions for father’s failure to pro-
duce photograph admitted into evidence in
child custody proceeding were inappropriate
where counsel for father obtained photo-
graph only shortly before trial, and thus
there was no actual noncompliance with
mother’s discovery request.
18. Divorce ¢=312.2
Mother could not complain before
Court of Appeals of trial court’s failure to
order pretrial response to questions asked
on discovery in child custody proceeding
since she did not pursue matter at trial.
Ozell Hudson, Jr., Statesboro, John H.
Ruffin, Jr., Augusta, John L. Cromartie, Jr.,
William J. Cobb, Atlanta, Mary R. Carden,
Gainesville, for appellant.
F.. Simmons Lanier, Statesboro, for appel-
lee.
DEEN, Presiding Judge.
The case of Blackburn v. Blackburn, 249 N
Ga. 689, 292 S.E.2d 821 (1982) concerned the
dispute over the custody of a minor child
between the natural mother, Kathleen
Blackburn, and the paternal grandmother.
Finding that the paternal grandmother,
who had petitioned for custody, had failed
to show by clear and convincing evidence
the parental unfitness of the child's mother,
the Supreme Court reversed the trial
court's award of custody to the grandmoth-
——
BLACKBURN v. BLACKBURN Ga.” 19
Cite as 308 S.E.2d 193 (Ga.App. 1983)
er. Mark Blackburn, the child's father, sub-
sequently petitioned for and was awarded
custody by the Superior Court of Burke
County, from which award the mother ap-
peals.
Mark and Kathleen Blackburn were mar-
ried on October 31, 1977, in New Haven,
Connecticut. In September 1978 they
moved to Minnesota to be with the appel-
lant’s family during the later stage of her
pregnancy. After the birth of Nicholas on
December 1, 1978, they relocated to Millen,
Georgia, where they resided with the appel-
lee’s parents. Shortly thereafter, Kathleen
Blackburn was hired as a dietician at the
Jenkins County Hospital, earning $175
weekly; approximately 3 months passed be-
fore Mark Blackburn obtained employment
with the Georgia Power Company at its
Plant Vogtle. Up to that point he had
worked only sporadically throughout the
marriage. The parties separated in late
spring 1979 and eventually divorced on July
17, 1979, with Kathleen Blackburn being
awarded custody of Nicholas and Mark
Blackburn being ordered to pay $35 weekly
child support.
Following the divorce Mark Blackburn
continued to reside with his parents and to
work for Georgia Power Company. His
work record was excellent, resulting in his
selection as employee of the month on one
occasion. Sometime in 1980 he joined an
electrical union and enrolled in its 4-year
apprentice program, which featured a pay
raise every 6 months upon his satisfactory
completion of the educational and training
requirements. At the time of the trial, his
salary was $8.00 per hour, with an ultimate,
forecasted salary of $13.35 per hour. He
also was selected the most outstanding stu-
dent of his class for 2 consecutive years.
Mark Blackburn's past was not uncheck-
ered. In 1977 he was convicted of simple
battery in Connecticut. Around the time of
the divorce in 1979, he was arrested for
theft by taking automobile tires, although
the victim declined to prosecute after resti-
tution was made. (Kathleen Blackburn was
with the appellee at the time of the arrest,
and, ironically, the arresting officer, Gene
Wright, ultimately became her paramour
and fathered her illegitimate daughter.)
Subsequently, apparently in a dejected
mood caused by an unsuccessful romanc
appellee broke a whiskey bottle over th
head of a man he found with his ex-gir!
friend in a lounge. Charged with 2 coun!
of aggravated assault, the appellee pleaded
guilty and he was sentenced to 1 year pro
bation and restitution for medical expenses
He also received psychiatric treatment fol
lowing the incident.
In 1980 he moved to Augusta, Georgin,
and lived in an apartment for approximate
ly 1 year before marrying his present wife,
Marynell. He currently resides in a rented
house with his wife and his 16 and 13 ym
old stepdaughters. His wife also is em
ployed, earning $150 weekly gross wages,
and she receives $50 per week in child sup
port. It appears that Mark Blackburn ha
striven to develop a wholesome family unit
by devoting much of his time and attention
to the stepchildren. He and his new fami
ly have attended church together regularly
for the past year.
The appellee regularly exercised his visi-
tation rights while the appellant had custo
dy of Nicholas. He also made the child
support payments to the appellant required
by the divoree order regularly in 1979, much
of 1980, and sporadically in 1981. The ap
pellee’s mother, of course, had legal custod,
of Nicholas from late 1981 until Novembc:
1982.
The appellant has changed her residence
7 times since the dissolution of the mar
riage. Initially she moved in with a co
worker at the Jenkins County Hospital. In
August 1979 she rented a mobile home,
where she remained for 4 to 5 months until
the landlord disconnected the utilities be
cause the appellant had failed to pay any
rent for several months. (The landlord tes
tified that upon inspecting the premises ap
proximately 2 weeks following the appel-
lant’s removal, he discovered dirty dishes,
soiled diapers on the floor, and a large
amount of spoiled food in the refrigerator.)
The appellant then moved to the Congress
Motel to await the opening of the Millen
196 Ga.
Villa Apartments. She eventually obtained
an apartment in Millen Villa and remained
there from July 1980 to July 1982. Since
July 1982 the appellant has changed resi-
dences 3 times, currently living in another
rented mobile home. Despite the testimony
of the landlord/owner of the previous mo-
bile home, most of the evidence indicated
that the appellant maintained adequate
housekeeping habits.
The appellant had resigned her job at the
hospital prior to moving into the Millen
Villa apartment. Her subsequent employ-
ment history includes working at a poultry
processing plant and her current job man-
aging a record store in Burke County with a
net weekly salary of $115.
While residing at the Congress Motel, the
appellant was frequently seen in the compa-
ny of men late at night, often with Nicho-
las. After her relationship with Gene
Wright developed, Wright frequently visit-
ed the appellant at her Millen Villa apart-
ment, although these visits were always
brief, usually lasting only 15-30 minutes.
The two were also seen on a number of
occasions behind a Millen public school, hug-
ging each other and lying in the front seat
of a car, in the presence of Nicholas. The
appellant never visited Wright's home, and
she denied knowing at the time she dated
him that he was married. The appellant's
pregnancy resulted from this relationship.
The appellant’s current paramour, Willie
Boyd, has spent the night with her on more
than one occasion. On February 23, 1983,
approximately 2 weeks before the trial, the
Burke County Department of Family and
Children Services received a report that
Nicholas had been beaten. There was some
evidence implicating Boyd in the beating,
but the Department of Family and Children
Services had not completed its investigation
because Boyd, having been recently incar-
cerated for DUI, speeding, and presenting
false identification, had been unavailable to
interview. The investigating caseworker
did not, however, believe that Nicholas was
in any danger and concluded that protective
custody was unnecessary. At trial Boyd did
admit to having spanked Nicholas on anoth-
308 SOUTH EASTERN REPORTER, 2d SERIES
er occasion as punishment for Nicholas's
reference to Boyd with a racially derogato-
ry term. Boyd has also fought with and
pushed the appellant to the ground in the
presence of Nicholas.
When the appellant worked at the Jen-
kins County Hospital, she had to keep Nich-
olas with her from 6:30 to 8:00 a.m. because
the babysitter would not take the child ear-
lier. During that time the child was left on
the dining room floor and not closely super-
vised. Because there was no playground,
Nicholas was also allowed to play in the
parking lot of the Millen Villa apartments,
although there seems to have been some
understanding between the apartment com-
plex residents to take turns watching over
the children. The appellant’s various child
care arrangements while she worked usual-
ly were adequate, but on occasion she failed
to provide the babysitter with a proper
change of clothing for child.
Dr. Virgil Abreu testified that from 1979
until June 1981 he had treated Nicholas for
frequent gastrointestinal and - respiratory
ailments. Dr. Abreu noted that frequent
respiratory ailments were common for small
children, but he still felt that the frequency
suffered by Nicholas was abnormal. In his
opinion, being left on the hospital's dining
room floor exposed the child to a greater
risk of disease; he also believed that con-
sumption of baby formula past the formu-
la’s expiration date could have contributed
to the child’s gastrointestinal problems.
Dr. Abreu, noting that Nicholas did not
gain a pound from February to June 1981,
felt that the child's growth also had not
been normal.
The appellant often allowed the appel-
lee’s mother to keep the child when he was
ill until he recovered. Nicholas also gained
2 pounds between June 26, 1981, and Au-
gust 13, 1981, after being placed in the
custody of his grandmother.
Shortly before the trial, Nicholas was ex-
amined by 2 other pediatricians, Dr. Gerson
Avonovitz and Dr. Monica Green. Both
physicians found the child healthy with no
signs of physical abuse, and neither agreed
with the general conclusions of Dr. Abreu,
Ta
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}
BLACKBURN v. BLACKBURN Ga. 47
Cite as 308 S.E.2d 193 (Ga.App. 1983)
Since her divorce from the appellee, the
appellant, in addition to having an illegiti-
mate child, has had an abortion and, as late
as August 1982, been treated for gonorrhea.
It does not appear that the appellant has
had any other significant medical problems.
She underwent a psychiatric examination
by Dr. Lloyd Baccus on February 1, 1983,
and Dr. Baccus considered her to be emo-
tionally stable and capable of caring for her
children. The appellant does not maintain
any close ties with her own family.
The trial court concluded that it was in
the best interests of the child to place him
under the custody of the appellee. On ap-
peal, Kathleen Blackburn contends that the
court erred in finding that the appellee had
not earlier relinquished his parental power
and therefore applied the incorrect legal
standard in awarding custody; that the ap-
pellee’s action was barred by the doctrines
of res judicata, estoppel by judgment, or
equitable estoppel; and that the trial court
erred in failing to compel discovery from
the appellee and admitting evidence per-
taining to matters as to which discovery
had not been provided. Held:
[1,2] 1. As between natural parents, a
change in custody of a minor child may be
awarded only upon a showing of a change
in material conditions or circumstances of
the parties or the child, subsequent to the
original decree of divorce and award of
custody, and that the change of custody
would be in the best interests of the child.
OCGA § 19-9-1 (b) (Code Ann. § 30-127);
Gazaway v. Brackett, 241 Ga. 127, 244
S.E2d 238 (1978); Crumbley v. Stewart,
238 Ga. 169, 231 S.E2d 772 (1977).
Between a third party and a natu-
ral parent, however, the parent is entitled
to custody unless it is shown by clear and
convincing evidence that the parent either
has lost the parental right to custody under
OCGA §§ 19-7-1 (Code Ann. § 74-108) and
19-74 (Code Ann. § 74-109) or is unfit.
Durden v. Barron, 249 Ga. 686, 290 S.E.2d
923 (1982); Blackburn v. Blackburn, supra.
[3] The appellant contends that the ap-
pellee is in the position of a third party
rather than a natural parent, because he by
voluntary contract released his parental
power to his mother when she petitioned!
for custody of Nicholas. OCGA § 19-7
(b) (Code Ann. § 74-108) does provid
that parental power may be lost
voluntary contract, but the evidence mu
establish clear, definite, and unambiguou
terms of such a contract before a
linquishment of parental rights will |
found. Shaddrix v. Womack, 231 Ga. (2%,
203 S.E.2d 225 (1974); Waldrup v. Crane,
203 Ga. 388, 46 S.E.2d 919 (1948); Beaver
v. Williams, 199 Ga. 113, 33 S.E.2d 34!
(1945).
[4] In this case, the evidence demon
strated merely that the appellee and hi
family discussed their conviction that th
appellant should not have custody of the
child, and that, after considering their re
spective circumstances, all agreed that u!
that time the paternal grandmother woul
have the better prospects of successfully
petitioning for custody. This evidence sim
ply is insufficient to establish a clear, defi
nite, and unambiguous contractual relin
quishment of parental rights.
[5-7] The appellant emphasizes that ap
pellee’s counsel, while representing the ap
pellee’s mother in her custody proceedin;
against the appellant, had asserted thu!
Mark Blackburn had voluntarily waived hi
parental rights; the appellant contends
that the appellee is thus bound by thi
representation made by his counsel. Gener-
ally, a statement before the court by an
attorney relating to the conduct of hi
client is binding on the client, absent :
showing of fraud or mistake. White
State, 153 Ga.App. 808, 266 S.E.2d 52:
(1980). This rule is inapplicable in this case
however, where the attorney made the as
sertion prior to the creation of the attor-
ney/client relationship between the appel-
lee and himself and thus without authority
to act on the appellee's behalf. See McCo)
v. McSorley, 119 Ga.App. 603, 168 S.E.2d
202 (1969); Dean v. Jackson, 219 Ga. 552,
134 S.E.2d 601 (1964). Accordingly, the tri-
al court properly decided this case as one
involving two natural parents.
[8,9] Where a change of custody has
been awarded because of a material changc
of conditions affecting the welfare of the
a8 Ga.
hild, this court will affirm if there is rea-
snable evidence to support the decision.
Taralson v. Moore, 237 Ga. 257, 227 S.E.2d
47 (1976); Robinson v. Ashmore, 232 Ga.
198, 207 S.E.2d 434 (1974); Gazaway V.
jrackett, supra. We note that the Su-
sreme Court revised the standard of appel-
late review in custody disputes between a
third party and natural parent to “ ‘wheth-
.r after reviewing the evidence in the light
most favorable to the appellee, any rational
rier of fact could have found by clear and
.onvincing evidence that the natural par-
cent’s rights to custody have been lost.” ”
Blackburn v. Blackburn, supra, 249 Ga. at
694, 292 S.E.2d 821. This court cannot,
however, extend that standard of review to
cases involving a custody dispute between
natural parents.
[10] The evidence adduced below dem-
onstrated a marked maturation of the ap-
pellee since the divorce and original custody
award on July 17, 1979. His employment
record has been outstanding since 1980, and
his earning capacity continues to improve.
He has developed a wholesome and stable
home with his current wife and 2 step-
daughters. The appellee has attempted to
provide parental guidance and care for his
stepdaughters and Nicholas. Moreover,
the appellee's current wife and stepchil-
dren appear eager to add Nicholas to the
family structure.
The appellant has moved a total of T
times since the divorce, 3 times since July
1982. Her earning capacity has diminished,
and her current line of employment offers
little prospect for advancement. Since the
divorce, the appellant has given birth to an
illegitimate child, had one abortion, and
contracted gonorrhea. There was sufficient
evidence of record to support the trial
court's finding that the appellant has
carried on meretricious relationships in the
presence of Nicholas. The child has also
witnessed and been subjected to unneces-
sary violence by at least one of the appel-
lant’s male companions.
The trial court made 3 basic conclusions:
1. that the appellee's circumstances had dra-
matically improved; 2. that the appellant's
circumstances had worsened; and 3. that
308 SOUTH EASTERN REPORTER, 2d SERIES
the appellee presently offered the child ma-
terial and emotional support superior to
that provided by the appellant. These con-
clusions were certainly supported by reason-
able evidence, and the trial court was thus
authorized to award custody of the child to
the appellee. i .
[11-13] 2. We reject the appellant’s
contention that the appellees petition for
custody should have been barred by the
doctrines of either res judicata, estoppel by
judgment, or equitable estoppel, because of
the prior custody proceeding between the
appellant and. the appellee's mother. Gen-
erally, res judicata bars relitigation of any
matter of a cause of action that was, or
could have been, put in issue and adjudicat-
ed in a prior proceeding between the same
parties, while estoppel by judgment pre-
vents relitigation in a subsequent suit (in- |
volving a different cause of action) a mat-
ter which was actually adjudicated in a
former case. OCGA § 9-12-40 (Code
Ann. § 110-501); Firestone Tire & Rub-
ber Co. v. Pinyan, 155 Ga.App. 343,
970 S.E.2d 883 (1980); A.R. Hudson Real- {
ty, Inc. v. Hood, 151 Ga.App. 778, 22 |
SE.2d 189 (1979). Neither defense, how-
ever, is available unless the subsequent suit |
is between the same parties or their privies. |
Anderson Oil Co., Inc. v. Benton oil Co.,
Inc, 246 Ga. 304, 271 S.E.2d 207 (1980); |
Firestone Tire & Rubber Co. v. Pinyan, |
supra.
In this case, the appellee was not a party |
/
(
—
—
p
r
to the proceeding between his mother and
the appellant, and his parental interest and
right to custody of the child were distinct,
separate from, and superior to any interest
or right asserted by the third party grand-
mother; the appellee and his mother thus
could not be considered privies. Moreover,
as discussed above, no privity was estab-
lished by any contractual waiver of the
appellee's parental rights in favor of his
mother, and the dispositive issue in a child
custody proceeding differs when a natural
parent seeks custody and when a third par-
ty so petitions. Accordingly, the trial court
correctly held that the appellee's petition
was not barred by res judicata or estoppel
i
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COTTON STATES MUT. INS. CO. v. CITIZENS Ga. 199
Cite as 308 S.E.2d 199 (Ga.App. 1983)
by judgment resulting from the proceeding
between the appellant and the grandmoth-
er.
The appellee, of course, was not barred
from seeking a modification of the original
custody award contained in the divorce de-
cree of July 17, 1979. OCGA § 19-9-1 (b)
(Code Ann. § 30-127) expressly authorizes
such a petition. See also Durden v. Barron,
155 Ga.App. 529, 271 S.E.2d 667 (1980).
[14] We also find no merit in the appel-
lant’s contention that equitable estoppel
barred the appellee's petition. “In order
for an equitable estoppel to arise, there
must generally be some intended deception
in the conduct or declarations of the party
to be estopped, or such gross negligence as
to amount to constructive fraud, by which
another has been misled to his injury.”
OCGA § 24-4-27 (Code Ann. § 38-116);
Harris v. Abney, 208 Ga. 518, 67 S.E.
2d 724 (1951). The appellant imagina-
tively explains the applicability of equita-
ble estoppel by alleging that the ap-
pellee deliberately concealed the encourage-
ment he offered his mother in the prior
proceeding, thereby inducing the appellant
not to join him as a party in that action.
As a matter of law, however, the appel-
lant’s argument fails to demonstrate any
harm or disadvantage presented by the ap-
pellee’s absence in the earlier case, and inju-
ry is essential for an equitable estoppel.
City of Atlanta v. Anglin, 209 Ga. 170, 71
S.E.2d 419 (1952). The appellee could not
be classified as an indispensable party to
the prior proceeding, and we know of no
duty of a noncustodial parent to intervene
in a child custody dispute between a third
party and the custodial parent. No equita-
ble estoppel thus arose from the appellee's
nonjoinder in the proceeding between his
mother and the appellant.
[15-17] 3. The appellant further as-
serts that the trial court erred in refusing
to apply sanctions for the appellee's failure
to produce and then admitting into evidence
certain cancelled checks endorsed by the
appellant, medical records concerning the
appellant, and a photograph. At trial, how-
ever, the appellant waived any objection to
the admission of the cancelled checks by
failing to object, and this court will not
address the appellant's argument regarding
the admission of the medical records since
the exception made presently on appeal dif-
fers from that made at trial. Argonaut Ins.
Co. v. Head, 149 Ga.App. 528, 254 S.E.2d
747 (1979). Concerning the photograph, the
record does not indicate any actual noncom-
pliance with the appellant's discovery re-
quest, since counsel for the appellee obtain-
ed the photograph only shortly before the
trial, and thus sanctions were inappropriate.
[18] The appellant also contends that
the trial court should have compelled the
appellee and appellee’s witnesses to answer
certain questions raised on deposition, most
of which concerned any pre-marital sexual
activity between the appellee and his cur-
rent wife. The trial court did not order a
pre-trial response to these questions, but,
contrary to the appellant's assertion, it did
not foreclose any questioning on that mat-
ter at trial. At the trial's beginning, the
court, in fact, intimated its determination
that such a line of questioning was relevant
and that it would require answers from the
witnesses. The appellant, however, did not
pursue that matter at trial and may not
here complain of the omission at the dis-
covery level.
Judgment affirmed.
BANKE and CARLEY, JJ., concur.
168 Ga.App. 83
COTTON STATES MUTUAL
INSURANCE COMPANY
vy.
CITIZENS AND SOUTHERN
NATIONAL BANK.
No. 66054.
Court of Appeals of Georgia.
Sept. 6, 1983.
Rehearing Denied Sept. 22, 1983.
Certiorari Denied Nov. 30, 1983.
Contractor's surety brought action
against contractors lending bank for sums
(RIES
€ trial court, the appel-
n for imposition of life
that under the double.
€ cannot be given the
a resentencing hearing,
enied this motion and
te of immediate review.
lant has filed this direct
futhority of Patterson v.
5, 287 S.E2d 7 (1982).
that the judgment ap-
d be affirmed on the
ial court’s denial of the
jeopardy plea was man-
Fin Patrick v. State, 247
570, supra, permitting
Ww trial as to punishment.
rgument is that his dou-
should have been sus-
thority of Bullington v.
430, 101 S.Ct. 1852, 68
which was rendered by
Supreme Court subse-
remand. However, we
in Zant v. Redd, 249 Ga.
1982), in accordance with
in Godfrey v. State, 248
2d 422 (1981), that the
bn v. Missouri, supra—
It seek the death penalty
er the original sentenc-
bd a life sentence—does
e jury has imposed the
he death penalty is va-
founds as opposed to
idence is insufficient to
. Cf. Burks v. United
83 S.Ct. 2141, 57 L.Ed.2d
h penalty was vacated
ects in the jury charge
earing and not because
of the evidence to sup-
Ity verdict.
od.
\
i - z ht
IY, na Chnouices
Kiiay against perma fing
{ {1 /
Vv I
il
McNEAL v. PAINE, WEBBER, JACKSON & CURTIS Ga. 331
"Cite as, Ga., 293 S.E.2d 331
249 Ga. 662
William W. McNEAL
VY.
PAINE, WEBBER, JACKSON &
CURTIS, INC. et al.
PAINE, WEBBER, JACKSON &
CURTIS, INC, et al.
V.
William W. McNEAL.
Nos. 38640, 38641.
Supreme Court of Georgia.
July 8, 1982.
Customer brought action against bro-
ker dealer and its employee alleging fraud,
breach of fiduciary duty, and negligence
arising from employee's alleged illicit
churning of customer’s file to generate
commissions. The State Court, Fulton
County, Dorothy Beasley, J., denied defend-
ants’ motion for summary judgment, and
the Court of Appeals, 288 S.E.2d 761, af-
firmed as to broker dealer but reversed as
to broker dealer’s employee. On appeal, the
Supreme Court, Clarke, J., held that: (1)
adjudication of customer’s federal claims
against broker dealer barred pursuit of bro-
ker dealer in state court by operation of
doctrine of res judicata, and (2) since all
issues which could have imposed liability
upon employee were litigated in the federal
case, the federal action also barred state
court action against employee.
Affirmed in part and reversed in part.
Smith, J., dissented.
1. Federal Courts &=18
In order for federal and state questions
to be considered as one “case” such as
would warrant federal court's exercise of
pendent jurisdiction, federal question must
be sufficiently substantial to confer subject
matter jurisdiction and federal and state
claims must derive from a common nucleus
of operative fact.
- 2. Judgment &=585(1)
Adjudication of customer's federal
claims against broker dealer barred pursuit
of broker dealer in state court by operation
of doctrine of res judicata since federal
court would have exercised its pendent jur-
isdiction over customer’s state claims.
3. Judgment ¢=829(3)
Customer’s state court action against
broker dealer’s employee was barred under
doctrine of res judicata by prior federal
judgment entered in favor of broker dealer
since all issues which could have imposed
liability upon employee were litigated in the
federal case.
Edward L. Savell, Atlanta, for William
W. McNeal.
Gary W. Hatch, Dom H. Wyant, William
L. Ballard, Atlanta, for Paine, Webber,
Jackson & Curtis, Inc, et al.
CLARKE, Justice.
McNeal, a customer of Paine, Webber (a
securities broker-dealer), filed suit in feder-
al court against Paine, Webber alleging vio-
lations of Section 10(b) of the Securities
Exchange Act of 1934, 15 U.S.C.A. § 78j(b)
and S.E.C. Rule 10b-5 [17 CFR Par. 240.-
10(b)(5) ]. In the federal action McNeal
contended that Paine, Webber's employee
Skone had illicitly “churned” McNeal’s file
to generate commissions. Damages sought
represented the amount allegedly lost by
McNeal as a result of Skone’s activities.
The parties stipulated at trial that proof of
churning would render Paine, Webber liable
on a theory of respondeat superior. Paine,
Webber won a favorable verdict.
On the same day that the federal suit was
filed, McNeal filed suit in the State Court
of Fulton County against Paine, Webber
and Skone (who was not a party to the
federal action). The complaint, which al-
leged fraud and breach of fiduciary duty by
Skone, was amended to add a count alleging
negligence.
Paine, Webber and Skone filed motions
for summary judgment on the basis of col-
332 Ga.
lateral estoppel and res judicata. Both mo- tions were denied. The Court of Appeals, 288 S.E.2d 761, reversed the denial of sum- mary judgment as to Paine, Webber and affirmed the denial of summary judgment as to Skone. The reversal of the trial court’s denial of Summary judgment as to Paine, Webber is appealed by McNeal in No. 38640. The affirmance of the trial court’s denial of Summary judgment as to its employee Skone is appealed by Paine, Webber in No. 38641.
1. McNeal challenges the Court of Ap- peals’ holding that res judicata bars his claim against Paine, Webber on the basis that the federal and state claims constitute Separate and distinct causes of action with different elements. McNeal insists that the application of res judicata to a situation like the present one forces a plaintiff with a claim over which the federal courts have exclusive jurisdiction into a dilemma. He -must either forego the federal claim entire- ly or depend upon the exercise of pendent Jurisdiction by the federal court for a hear- ing on his state claim. McNeal complains that this leaves the fate of plaintiff’s state law claim within the sole discretion of the federal court.
This court has held in Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977), and, more recently, in Hjjl v. Wooten, 247 Ga. 737, 279 S.E.24 297 (1981), that = where a party fails to present a state law claim in federal] court, a later suit in the state courts will be barred if the state claim could have been litigated in the federal court under its pendent jurisdiction.” Hill v. Wooten, Supra at 738, 279 S.E.2d 227.
[1,2] McNeal contends that the state law claims and the federal law claims con- stitute separate causes of action and that for that reason res judicata is not applicable here. The adoption of the Federal Rules of Civil Procedure and the Georgia Civil Prac- tice Act represent an attempt to end esoter- ic controversies concerning what constitutes a “cause of action.” United Mine Workers v. Gibbs, 383 US. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Fed.Rules Civ.Proc. 2, 18-20, 42; Code Ann. §§ 81A-102, 81A—
293 SOUTH EASTERN REPORTER, 2d SERIES
118-120, 81A-142. “Pendent jurisdiction, in the sense of judicial power, exists when- ever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ....’ ys Const., Art. III, § 2, and the relationship between that claim and the state claim per- mits the conclusion that the entire action before the court comprises but one constity- tional ‘case.’” United Mine Workers v. Gibbs, supra at 725, 86 S.Ct. at 1138. Ip order for the federal] and state questions to . be considered as one “case,” the federal question must be sufficiently substantia] to confer subject matter jurisdiction, and the federal and state claims “must derive from a common nucleus of operative fact” ‘4 That being true here, the federal court would have exercised its pendent jurisdic- tion over McNeal’s state claims. Conse- quently, the adjudication of his federal claims against Paine, Webber bars pursuit of Paine, Webber in state court by opera- tion of the doctrine of res judicata. Hill v Wooten, supra: Pope v. City. of Atlanta, Supra. Accordingly, in Case No. 38640, the opinion of the Court of Appeals should be affirmed.
[3] 2. Skone argues that the federal \ court action adjudicating Paine, Webber's liability operates as a bar to a subsequent state court action against him because of res judicata or estoppel by judgment. The Court of Appeals held that our decision in Gilmer v. Porterfield, 233 Ga. 671, .212 -E.2d 842 (1975), controls the question and that under its holding Skone’s motion for summary judgment was properly denied by the trial court. Ip Gilmer v. Porterfield, Supra, we held that a claim against an employee is not barred by res judicata or estoppel by judgment because of litigation of the employer's liability. Skone argues that Gilmer should be overruled as no long- er viable. We do not overrule Gilmer, but we find it can be distinguished from the case before us. In Gilmer, the principal had : defenses available to him that were not available to the agent, and it would have been unjust to refuse to allow the plaintiff
| SERIES
142. “Pendent jurisdiction,
Judicial power, exists when. A claim ‘arising under [the] the Laws of the United
aties made, or which shall be
heir Authority . U.S. L$ 2, and the relationship
Aim and the state claim per-
Sion that the entire action
comprises but one constity-
United Mine Workers v.
725, 86 S.Ct. at 1138. In
leral and state questions to
S one “case,” the federal]
e sufficiently substantial tq
1atter jurisdiction, ang the
claims “must derive from
us of operative fact.” Id.
here, the federal court
cised its pendent Jurisdic-
W's state claims. Conse-
judication of his federal
ine, Webber bars pursuit
In state court by opera-
e of res judicata. Hijjy Vv.
ope v. City of Atlanta,
ly, in Case No. 38640, the
urt of Appeals should be
argues that the federal
licating Paine, Webber's
S a bar to a subsequent
against him because of
opel by judgment. The
eld that our decision in
eld, 233 Qa. 671, 212
ontrols the question and
ing Skone’s motion for
Was properly denied by
Gilmer v, Porterfield,
t a claim against an
red by res judicata or
t because of litigation
ability. Skone argues
€ overruled as no long-
t overrule Gilmer, but
istinguished from the
Imer, the principal had
him that were not
it, and it would have
to allow the plaintiff
WATERS v. STATE Ga. 333
Cite as, Ga., 293 S.E.2d 333
to proceed against the agent in state court.
Here, such an injustice does not exist.
There were no defenses available to Paine,
Webber which were unavailable to Skone.
In fact, the parties to the federal action
stipulated that Skone was acting within the
scope of his employment and that if he
were liable Paine, Webber would be liable.
Therefore, since all of the issues which
could have imposed liability upon Skone
were litigated in the federal case, the rule
of Gilmer v. Porterfield, supra, does not
apply here.
To allow this case to proceed sgainst|
Skone would create a framework under
which a plaintiff could consciously design a
legal strategy which would allow him two
shots at the same target. In gaming and
sports there may be such a thing as the best
two out of three, but not even those a
recognize the best one out of two. The
Court of Appeals erred in affirming the |
trial court’s denial of his motion for summa./
ry judgment. Accordingly, the judgment in
Case Number 38641 must be reversed.
Judgment affirmed in Case Number
38640. Judgment reversed in Case Number
38641.
All the Justices concur, except SMITH,
J., dissents.
Ww
o 5 KEY NUMBER SYSTEM
3
249 Ga. 671
WATERS
Y.
The STATE.
No. 38781.
Supreme Court of Georgia.
July 8, 1982.
Defendant was convicted before the
Superior Court, Chatham County, George E.
Oliver, J., of criminal attempt to commit
robbery by intimidation, simple battery, and
motor vehicle theft, and he appealed. The
Supreme Court, Jordan, C. J., held that: (1)
defendant was not entitled to preliminary
hearing; (2) defendant, whose defense was
alcoholism, was not entitled to independent
medical examination; (3) no harmful error
was committed under recidivist statute de-
spite fact that indictments were not drawn
in reference to that statute; (4) recidivist
statute was not unconstitutional; (5) sen-
tences imposed were not cruel or unusual
because of their lengths; and (6) appeal
was wholly frivolous and, accordingly, de-
fense counsel's motion to withdraw would
be granted and judgment of conviction af-
firmed.
Judgment affirmed.
1. Criminal Law &=224
In prosecution for criminal attempt to
commit robbery by intimidation, simple bat-
tery, and motor vehicle theft, defendant
was not entitled to preliminary hearing.
2. Costs <=302.4
Defendant, whose defense to charges of
criminal attempt to commit robbery by in-
timidation, simple battery and motor vehi-
cle theft was alcoholism, and who was ex-
amined by hospital forensic services team,
was not entitled to independent medical
examination.
3. Criminal Law e=1202(7)
No harmful error was committed under
recidivist statute despite fact that indict-
ments were not drawn in reference to such
statute where sentences defendant received
were within limits applicable to first of-
fenders. Code, § 27-2511.
4. Criminal Law ¢=1201
Recidivist statute was not unconstitu-
tional. Code, § 27-2511.
5. Criminal Law ¢=1213
Consecutive sentences of ten years, 12
months, and five years, respectively, on de-
fendant’s convictions of criminal attempt to
commit robbery by intimidation, simple bat-
tery and motor vehicle theft were not cruel
s
gsroppel Cre Gurire me Nt
70 Ga. b78 SOUTHEASTERN RE
157 Ga.App. 414
STEPHENS
Vv.
The STATE.
No. 61289.
Court of Appeals of Georgia.
Feb. 9, 1981.
Defendant was convicted before the
Bibb Superior Court, Culpepper, J., of two
counts of violating Controlled Substances
Act, and he appealed. The Court of Ap-
peals, Deen, P. J., held that: (1) in absence
of a timely written request, defendant was
not entitled to jury charge that defendant
had constitutional right not to testify and
that no inference could be made as result of
his failure to testify on his own behalf, and
(2) assuming arguendo that defendant’s ob-
jection to testimony of witness as to pur-
pose of undercover agents was properly
made, trial judge did not err in permitting
witness to give reasons, circumstances and
conditions surrounding the conduct of the
drug investigation.
Judgment affirmed.
1. Criminal Law ¢=828
In absence of a timely written request,
defendant was not entitled to jury charge
that defendant had constitutional right not
to testify and that no inference could be
made as result of his failure to testify on
his own behalf.
2. Drugs and Narcotics ¢=108
Assuming arguendo that defendant's
objection to testimony of witness as to pur-
pose of undercover agents was properly
made, trial judge did not err in permitting
witness to give reasons, circumstances and
conditions surrounding the conduct of the
drug investigation.
G. F. Peterman III, Macon, for appellant.
Charles H. Weston, Chief Asst. Dist.
Atty., Thomas J. Matthews, Asst. Dist.
Atty., for appellee.
er neral law , aAishinchcn
by = «dicata 9 Collateral
of Sion) ON Merits
PORT 2d ‘SERIES Derk
DEEN, Presiding Judge.
Willie J. Stephens appeals from his con-
viction of two counts of violating the Geor-
gia Controlled Substances Act following the
denial of his motion for a new trial.
[1] 1. In the absence of a timely writ-
ten request, the trial court did not err in
failing to charge the jury that the defend-
ant had a constitutional right not to testify
and that no inference could be made as a
result of his failure to testify on his own
behalf. Woodard v. State, 234 Ga. 901, 218
S.E.2d 629 (1975). x
[2] 2. Assuming arguendo that appel-
lant’s objection to the testimony of a wit-
ness as to the purpose of undercover agents
was properly made, the trial judge did not
err in permitting the witness to give rea-
sons, circumstances and conditions sur-
rounding the conduct of the drug investiga-
tion. Rozier v. State, 124 Ga.App. 481, 134
S.E.2d 203 (1971); Taylor v. State, 135 Ga.
6224), 70 S.E. 237 (1910); and James v.
State, 223 Ga. 677, 684(7), 1567 S.E.2d 471
(1967).
Judgment affirmed.
BANKE and CARLEY, JJ., concur.
w
o £ KEY NUMBER SYSTEM
3
157 Ga.App. 420
USHER
v.
JOHNSON et al.
No. 60495.
Court of Appeals of Georgia.
Feb. 10, 1981. 2
Action was brought against bank, cred-
it disability insurer, and: executive vice-
—_—_— a i di sind BT i SEO
t
C
§
k
I
¢
[
A
A
a
C=
USHER v. JOHNSON Ya 7}
Cite as, Ga.App., 278 S.E.2d 70
president of bank for damages arising out
of alleged conspiracy among the defendants
to evade insurance laws and prevent bor-
rowers such as plaintiff from being repre-
sented by a qualified licensed insurance
agent concerned with borrowers’ best inter-
ests. The Toombs Superior Court, Hartley,
J., granted summary judgment in favor of
defendants based upon prior judgment
against plaintiff, and plaintiff appealed.
The Court of Appeals, Pope, J., held that in
view of previous foreclosure suit brought by
bank as secured creditor and in view of
plaintiff's defenses and third-party claims
in the foreclosure action, subsequent suit
was barred by doctrine of res judicata.
Affirmed.
1. Judgment ¢=586(2)
Where bank, secured creditor, filed pe-
tition to foreclose on its interest in camper,
debtor claimed that credit disability insurer
should have paid installments due to bank
but failed to do so, and debtor filed third-
party complaint against insurer and assert-
ed defenses involving alleged banking viola-
tions, negligence, fraud and conspiracy, and
where summary judgment was entered
against debtor and no appeal was consum-
mated, debtor was precluded, under doc-
trine of res judicata, from subsequently su-
ing bank, executive vice-president of bank,
and insurer for alleged conspiracy.
2. Judgment ¢=585(2)
Issues raised and adjudicated as de-
fenses rather as third-party claims should
equally be barred under doctrines of res
judicata and estoppel by judgment.
3. Mortgages ¢=497(2)
Executive vice-president of bank was a
person necessary for proper adjudication of
debtor's defenses and third-party claim in
foreclosure suit brought against her by
bank and his joinder was mandatory; thus,
since debtor had failed to file compulsory
counterclaim against vice-president or to
join him as indispensable party, she was
barred from further litigation against him
on the issues involved in the prior suit.
Code, § 81A-113(a).
M. O. Strickland, Vidalia, for appellant.
Hugh B. McNatt, David R. Smith, Vida-
lia, for appellee.
POPE, Judge.
Peoples Bank of Lyons (Bank), as holder
of a note and security agreement executed
by Huelda Usher on September 7, 1976,
filed a petition to foreclose on its interest in
a 1967 Yukon Delta Camper, alleging that
Ms. Usher had defaulted in her payments
under the agreement. Ms. Usher answered,
admitting the execution of the note and
security agreement, but contending that she
had obtained credit disability insurance cov-
ering the indebtedness from Southern Unit-
ed Life Insurance Company (Southern),
which should have paid the installments due
the Bank but had failed to do so even
though a claim and demand had been made
and Ms. Usher had been disabled for almost
three months. Ms. Usher also filed a third-
party complaint against Southern based on
its failure to inform her that the disability
insurance did not cover pre-existing medical
problems. Subsequent amendments were
filed by Ms. Usher asserting various bank-
ing violations, negligence, fraud and con-
spiracy, and motions for summary judg-
ment by all parties were filed. The trial
court found that Ms. Usher's pleadings “set
forth a plethora of ‘defenses’ ... [with] no
evidence or argument of counsel in support
of these claims. They are, therefore, bare
and marginal assertions which remain un-
amplified on the motion for summary judg-
ment.” Being unsupported by evidence, the
trial court deemed these defenses aban-
doned and granted summary judgment in
favor of the Bank and Southern under the
authority of Summer-Minter Assoc. v. Gior-
dano, 231 Ga. 601, 203 S.E.2d 173 (1974).
Nevertheless, in its findings of fact and
conclusions of law the court considered and
ruled adversely, either directly or indirectly,
on each of the defenses raised by Ms. Usher.
No appeal was consummated as to this
judgment. However, Ms. Usher filed an
action in eight counts against the Bank,
\ > x
\\
72.56%
Southern and J. A. Johnson (the Bank's
executive vice-president) alleging, inter
alia, a conspiracy among these defendants
“to evade the insurance laws and deprive
borrowers, and the plaintiff in particular, of
being represented by a qualified licensed
insurance agent who was concerned with
[the] borrowers’ best interest.” These de-
fendants answered, also filing motions to
dismiss and for summary judgment based
upon res judicata and collateral estoppel.
The trial court found that this new, sepa-
rate action arose out of the same transac-
tions and had the same facts and issues as
the prior suit, concluded that the prior sum-
mary judgment constituted a bar to the
instant action, and granted summary judg-
ment to the defendants. This appeal is
from the judgment. We have reviewed the
record before this court and affirm.
Ms. Usher argues that the doctrine of res
Judicata is inapplicable here because no
identity of cause of action in the original
proceeding and her present suit has been
established, and that the former defenses
and later allegations are only “vaguely sim-
ilar.” However, she may still be barred
from maintaining this action by the previ-
ous adjudication under the doctrine of es-
toppel by judgment. See Blakely v. Couch,
129 Ga.App. 625(1), 200 S.E.2d 439 (1973).
“‘Under the doctrine of res judicata, “a
judgment of a court of competent jurisdic-
tion shall be conclusive between the same
parties and their privies as to all matters
put in issue, or which under the rules of law
might have been put in issue in the cause
wherein the judgment was rendered, until
such judgment shall be reversed or set
_ aside.” Code § 110-501. A somewhat dif-
[ferent rule applies in regard to the doctrine
of estoppel by judgment, since the latter
doctrine has reference to previous litigation
between the same parties, based upon a
different cause of action.
there is an estoppel by judgment only as to
such matters within the scope of the previ-
| ous pleadings as necessarily had to be adju-
J dicated in order for the previous judgment
"to be rendered, or as to such matters within
the scope of the pleadings as might or
| might not have been adjudicated, but which
In the latter case
278 SOUTH EASTERN REPORTER, 2d SERIES
are shown by aliunde proof to have been
actually litigated and determined. (Citing.)
Under both rules, in order for the former
decision to be conclusive, it must have been
based, not merely on purely technical
grounds, but at least in part on the merits
where under the pleadings they were or
could have been involved. Code §§ 110-
503, 110-504.” Morris v. Ga. Power Co., 65
Ga.App. 180, 187, 15 S.E.2d 730 (1941); Wil-
liams 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 numerous the
questions involved in the suit may be, pro-
vided they were tried and decided [Cit.];
for the judgment is conclusive not only of
the thing directly decided, but of every fact
which was essential to the adjudication.
[Cit.]
jury must evidently have arrived at in order
to reach the judgment or verdict rendered
will be fully concluded.’” Callaway v. Ir-
vin, 123 Ga. 344, 351(4), 51 S.E. 477 (1905).
See generally Davis & Shulman, Ga.Prac. &
Proc. 528, §§ 27-3, 27-4 (4th Ed.)
[1] Our review of Ms. Usher's defenses
and third-party claims in the foreclosure
action dictates the determination that the
instant suit contains no distinct issue which
was not raised or ascertainable in the first
case. “Third-party actions are viewed as
separate and independent lawsuits. [Cit.]
... ‘Obviously a judgment adjudicating a
claim between a third-party plaintiff and a
third-party defendant is conclusive to the
S.E.2d 270 (1978). That the grant of sum-
mary judgment is a ruling on the merits
was definitively established in Summer-
Minter Assoc. v. Giordano, 231 Ga. 601, 606,
203 S.E.2d 173, supra.
[2] Appellant's arguments notwith-
standing, we think that issues raised and
adjudicated as defenses rather than as
third-party claims should equally be barred
under the doctrines of res judicata and es-
‘Any conclusion which the court or '
DEPARTMENT OF TRANSP. v. DELTA MACH. PRODUCTS Ga. 73
Cite as, Ga.App., 278 S.E.2d 73
toppel by judgment. Our Supreme Court
has stated that a defendant is bound to set
up all defenses and to seek all relief needed,
“‘and he can not at will decline to litigate
as a defendant over these matters and
bring an independent suit against his adver-
sary, who has already brought him into
court.” Vaughan v. Vaughan, 209 Ga. 730,
75 S.E.2d 545 (1953); see also Lowry v.
Smith, 103 Ga.App. 601, 120 S.E.2d 47
(1961). Although this question appears not
to have been specifically addressed in Geor-
gia, the resolution we espouse has been
previously suggested by at least one emi-
nent local jurist. As stated by Judge Shul-
man in his treatise, “the application of the
doctrine may benefit the plaintiff; where,
for instance, the unsuccessful defendant in
the prior suit wants to contest his liability
upon the judgment there rendered, and the
plaintiff sets up the doctrine of res judicata
and the conclusiveness of the judgment.”
Davis & Shulman, Ga.Prac. & Proc., § 27-3,
supra.
This view appears to be in accord with
the general rule, “that a subsequent inde-
pendent action for affirmative relief is
barred by a judgment in a prior action in
which the matter forming the basis for the
claim for relief was interposed as a defense
In the case of the unsuccessful asser-
tion of the defense in the prior action, the
result has been reached where the same
matter is interposed as a basis for the main-
tenance of an independent cause of action,
or for the interposition of a counterclaim in
a subsequent action, upon application of the
rule that material facts or questions which
were in issue in a former action, and were
there judicially determined by a court of
competent jurisdiction, are conclusively set-
tled by a judgment therein.” 46 Am.Jur.2d
606, Judgments, § 435.
[3] Thus the suit against the Bank and
Southern, who were parties to the foreclo-
sure action, is clearly barred. We likewise
concur with the conclusion of the trial court
that J. A. Johnson was a person necessary
for proper adjudication of Ms. Usher's de-
fenses and third-party claim in the prior
suit, and his joinder was mandatory under
CPA § 113(a) (Code Ann. § 81A-113(a)).
Therefore, Ms. Usher having failed to file a
compulsory counterclaim against Johnson or
to join him as an indispensable party, she i
now also barred from further litigation
against him on these issues. Coker v. Jay
Hambridge Art Foundation, 144 Ga.App.
660, 242 S.E.2d 323 (1978); P & J Truck
Lines v. Canal Ins. Co., 148 Ga.App. 3, 251
S.E.2d 72 (1978).
Judgment aff irmed.
McMURRAY, P. J., and BANKE, J., con-
cur.
O & KEY NUMBER SYSTEM
—
n
M
m
E
157 Ga.App. 423
DEPARTMENT OF TRANSPORTATION
Vv.
DELTA MACHINE PRODUCTS
COMPANY et al :
No. 60538.
Court of Appeals of Georgia.
Feb. 10, 1981.
Certiorari Denied March 18, 1981.
Department of ‘Transportation appeal-
ed from judgment of the Gwinnett Superior
Court, Merritt, J., in favor of property own-
er whose business property had been taken
by Department for extension of highway.
The Court of Appeals, Birdsong, J., held
that: (1) trial court properly admitted evi-
dence concerning loss of business and incon-
venience caused by circuitous route and
temporary inconvenience resulting from
mud and dust incident to extension of high-
way and construction of new access road;
(2) trial court properly refused to give re-
quested charge on law of “temporary incon-
venience”; (3) trial court properly admitted
evidence of business losses for limited pur-
pose of casting light on consequential dam-
270 Ga.
voted in this race. In view of the delay
involved in the prior appeal, see Taggart v.
Phillips, supra, and the fact that the gener-
al election is only 4 days away, it would be
impracticable to remand this case for fur-
ther proceedings. In Taggart v. Phillips,
supra, we wrote: “Appellant must show
that a sufficient number of electors voted
illegally or were irregularly recorded in the
contest being challenged to change or cast
doubt on the election. It is not for whom
they voted but that they voted in this ‘race’
illegally. ” (Emphasis supplied.)
Appellant failed to show that these 16 vot-
ers voted in the race being challenged. We
therefore find that the contestant has failed
in his burden of showing that the votes of
these 16 voters were sufficient to place the
result of this primary race in doubt. Code
Ann. § 34-1703(c).
Judgment affirmed.
All the Justices concur, except JORDAN,
J., who concurs in the judgment only.
W
0 E kev NUMBER SYSTEM
T
147 Ga.App. 446
FIERER et al.
Vv.
ASHE et al.
No. 55940.
Court of Appeals of Georgia.
Argued June 5, 1978.
Decided Sept. 7, 1978.
Rehearing Denied Oct. 5, 1978.
Investors brought action seeking to re-
scind their purchase of interests in limited
partnership, and general partner filed third-
party claim against attorneys who failed to
obtain registration of partnership interests
as securities, and attorneys filed motion for
summary judgment founded on res judicata
and collateral estoppel. The Fulton State
Court, Duke, J., denied attorneys’ motion,
and attorneys appealed. The Court of Ap-
peals, Smith, J., held that in light of validi-
ty of judgments entered in separate, prior
actions as basis for application for res judi-
cata, in light of identity of parties and of
issues, and in light of certain policy consid-
erations, attorneys’ motion for summary
judgment should have been granted based
upon entry of judgment for attorneys in
previous actions.
Reversed.
1. Judgment ¢=652, 829(1)
Previous federal district court and
state court judgments could serve as basis
for application of res judicata even if they
had been outright default judgments, and
could support res judicata application not-
withstanding their summary nature. Code,
§ 110-501.
2. Judgment &=609
Third-party actions are viewed as sepa-
rate and independent lawsuits, for purposes
of application of doctrine of res judicata.
Code, § 110-501.
3. Judgment ¢&=674
Sufficient identity of parties existed to
permit application of doctrine of res judica-
ta with respect to motion for summary
judgment filed by third-party defendants
based upon entry of summary judgment for
same third-party defendants in previous ac-
tions. Code, § 110-501.
4. Judgment &=674
Sufficient identity of issues existed to
permit application of doctrine of res judica-
ta with respect to motion for summary
judgment filed by third-party defendants
based upon entry of summary judgment for
same third-party defendants in previous ac-
tions, as instant action contained no distinct
issue which was not raised, or could not
have been raised, in previous actions. Code,
§ 110-501.
« flements of res judicata Claim; doctTine May be reloyed i pu bic
249 SOUTH EASTERN REPORTER, 2d SERIES policy Cliciades
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FIERER v. ASHE Ga. 927]
Cite as 249 S.E.2d 270
5. Judgment ¢=653
In action brought by investors seeking
to rescind their purchase of securities, doc-
trine of res judicata was applicable to mo-
tion for summary judgment filed by third-
party defendant attorneys who failed to
obtain registration of securities as required
by law, notwithstanding assertion that con-
clusiveness of prior judgment should be
minimized in deference to policy that regu-
latory effect of security laws should not be
shortchanged by technical procedural rules,
such as res judicata, which prevent courts
from applying intended remedy. Laws
1957, p. 134 et seq. as amended; Code,
§ 110-501.
6. Judgment ¢=183
Previous denial of defendants’ motion
for summary judgment founded on res judi-
cata and collateral estoppel did not fore-
close subsequent granting of summary
judgment for defendants, in light of statute
providing that defending party may move
for summary judgment at any time, and
statute providing that order or other form
of decision is subject to revision at any time
before entry of judgment. Code, §§ 81A-
154(b), 81A-156, 81A-156(b), 110-501.
King & Spalding, Michael C. Russ, H.
Lamar Mixson, Jr., Atlanta, for appellants.
Greene, Buckley, DeRiecux & Jones,
Thomas B. Branch, II, Eileen M. Crowley,
Atlanta, for appellees.
SMITH, Judge.
We granted interlocutory appeal to re-
view the trial court’s denial of appellants’
motion for summary judgment, a motion
founded on res judicata and collateral es-
toppel. Finding these principles properly
applicable here, we reverse the judgment.
I. Facts
Stephen Lawson, together with Cam-
bridge Capital Corporation (hereinafter
jointly \referred to as Lawson), organized
eight land investment syndications in the
form of limited partnerships; these syndi-
cations thus were subject to both Georgia
and federal securities laws. Lawson, as the
general partner of these eight entities, sold
limited partnership interests to almost 200
investors. Two of the buyers were Ashe
and Fitzsimmons, the appellees here.
The appellants had been employed by
Lawson to handle the legal work involved
in these partnership sales.
failed to obtain registration of these securi-
ties as required under the then-applicable
“blue sky” law, the Georgia Securities Act
of 1957. Ga.L.1957, p. 134 et seq. as amend-
ed. In addition, Lawson has admitted vari-
ous violations of Georgia and federal securi-
ties laws—including misrepresentations,
concealments, secret agreements, and fund
misallocations—and Lawson has admitted
concealing his violations from the appel-
lants. After learning of the violations, the
appellants notified Lawson and all limited
partners that they were resigning as coun-
sel.
The appellants
Lawson's investment scheme then began
to crumble. In separate actions, Ashe and
Fitzsimmons sued Lawson in the State
Court of Fulton County to rescind their
respective purchases of limited partnership
interests. Numerous other investors filed
similar actions, all but one in the Superior
Court of Fulton County and the other in the
Federal District Court for the Northern
District of Georgia. In each of these ac-
tions, defendant Lawson filed a third-party
legal malpractice claim against the appel-
lants, seeking indemnification from them
for their alleged negligence in not obtaining
registrations as required in the Act of 1957,
supra. In addition to the third-party
claims, Lawson filed, in the superior court,
a direct action against the appellants, de-
scribed by them as an “all encompassing
malpractice action.”
The actions brought by Ashe and Fitzsim-
mons were consolidated for hearing mo-
tions, one of which was the appellants’ mo-
tion for summary judgment. This motion,
which was directed to the merits of the
third-party claim, was denied, and this
court refused to review it when the appel-
lants filed an appeal without following
272
proper interlocutory procedures. Fierer v.
Ashe, 142 Ga.App. 290, 235 S.E.2d 598
(1977). Following the state court’s denial
of the summary judgment motion, a similar
motion pending in the district court was
granted, and that judgment has not been
appealed, attacked, or set aside. It remains
intact as a final judgment.
On the basis of the federal judgment, the
superior court granted summary judgment
in both the third-party and the direct mal-
practice actions there pending between
Lawson and the appellants. The superior
court held that these suits were barred by
reason of the res judicata and collateral
estoppel effects of the district court judg-
ment. The superior court judgment, too,
has not been appealed, challenged, or set
aside.
Certified copies of the final judgment of
the district court and of the numerous final
judgments of the superior court were en-
tered in the record of the state court case,
and the appellants again moved for summa-
ry judgment, this time on the grounds of
res judicata and collateral estoppel. The
trial court denied the motion and, pursuant
to a proper application by the appellants,
we granted this appeal. Ashe and Fitzsim-
mons appear as appellees here, rather than
Lawson, as they are assignees of Lawson’s
claimed right of indemnification.
II. Analysis
Code § 110-501 defines the conclusiveness
of judgments: “A judgment of a court of
competent jurisdiction shall be conclusive
between the same parties and their privies
as to all matters put in issue, or which
under the rules of law might have been put
in issue in the cause wherein the judgment
was rendered, until such judgment shall be
reversed or set aside.” In reaching our
{ decision that the above statute operates to
bar the state court claim, we will consider
separately (a) whether there is a valid ante-
cedent judgment; (b) whether there is iden-
tity of parties; (c) whether there is identity
of issues; and (d) whether reasons of public
| policy militate against a strict application
of the above statute in this case.
3a. 249 SOUTH EASTERN REPORTER, 2d SERIES
A. Valid Antecedent Judgment
[1] The appellees raise the following ar-
gument: The district court summary judg-
ment motion was unopposed, and thus was
granted without any serious consideration
of the merits. The district court judgment,
in turn, became the foundation for the sev-
eral superior court judgments, which judg-
ments also were rendered without any seri-
ous consideration of the merits. The appel-
lees summarize, “In effect, the order grant-
ing summary judgment in [the district
court] was taken by default, and the judg-
ment entered thereupon should be con-
sidered in that context.”
Considered in that context, the prior
judgments have res judicata applicability.
Even had the earlier judgments been out-
right default judgments, they still could be
asserted as res judicata, for the “ ‘judgment
of a court having jurisdiction of the parties
and of the subject matter operates as res
judicata, in the absence of fraud or collu-
sion, even if obtained upon a default.”
Morris v. Jones, 329 U.S. 545, 550-551, 67
S.Ct. 451, 455, 91 L.Ed. 488 (1947). Similar-
ly, the applicability of the prior judgments
is not diminished by their summary charac-
ter: “[A] summary judgment terminating a
suit upon motion therefor under Rule 56 is
a final adjudication on the merits. The
application of the doctrine of res judicata in
this manner does not deprive a litigant of
his right to ‘a day in court” That right
‘means not the actual presentation of the
case, but the right to be duly cited to ap-
pear and to be afforded an opportunity to
be heard.” 1B Moore's Federal Practice
1001, 1007, 1 0.409[1].
B. Identity of Parties
[2,3] Each of the third-party actions
against the appellants originated with suits
from different plaintiffs, i. e., the different
investors who bought limited partnership
interests from Lawson. But in each, Law-
son was the third-party plaintiff and the
appellants were third-party defendants.
Third-party actions are viewed as separate
and independent lawsuits, E. g., Register
EE
(
(
(
:
FIERER v. ASHE Ga. 273
Cite as 249 S.E.2d 270
v. Stone's Independent Oil Distributors, 221
Ga. 123, 126, 179 S.E.2d 68 (1971). Final
judgments between the parties in one third-
party action have been held to bar a subse-
quent third-party action between the same
parties. Panto v. Plymouth Bus Co., 260
F.Supp. 670 (E.D.Pa.1966). “Obviously a
judgment adjudicating a claim between a
third-party plaintiff and a third-party de-
fendant is conclusive to the same extent as
though rendered in independent litigation
between them.” 1B Moore's Federal Prac-
tice 1281, 1283, 1 0.4112]. And, in addition
to the independently sufficient prior third-
party actions between Lawson and the ap-
pellants, there is also the direct suit be-
tween them which itself clearly establishes
that the parties involved here are identical
to the parties involved in the prior actions.
C. Indentity of Issues
[4] The voluminous record in this case
contains the pleadings and judgments in the
district court and superior court actions.
Code § 110-501, supra, establishes the prior
judgments as conclusive to all matters
which were put in issue or which might
have been put in issue. It is true that
many of the individual lawsuits involved
partnerships which were not involved in the
state court actions brought by Ashe and
Fitzsimmons, and that, therefore, the third-
party malpractice claims in those - cases
were technically distinguishable from the
claim in this case. However, a reading of
the approximately two dozen third-party
malpractice claims, and of the direct, “all
encompassing” malpractice claim, com-
mands the conclusion that the state court
action contains no distinct issue which was
not raised, or could not have been raised, in
the prior actions.
D. Policy Considerations
[5] The appellees assert that the conclu-
siveness of the prior judgments should be
minimized in deference to the policy that
the regulatory effect of securities laws
should not be shortchanged by technical
procedural rules, such as res judicata, which
prevent the courts from applying the in-
tended remedy. We are aware of argu-
ments that the principles of res judicata
and collateral estoppel “are not inexorable
rules of law” and that “they have been
occasionally rejected or qualified in cases in
which an inflexible application would have
violated an overriding public policy or re-\
sulted in manifest injustice to a party.” 1B
Moore's Federal Practice 783, 10.405[11]"
But the appellees, though citing cases they
argue are analogous, have cited no securi-
ties cases in which the traditional rules of
res judicata or collateral estoppel have been
suspended. More to the point, they have
cited no legal malpractice cases in which the
rules were loosened. We will not here es-
tablish as a matter of law that the tradi-
tional doctrines of res judicata or collateral
estoppel have only limited application in
either securities law or legal malpractice
vases. Whether those rules should be bent
where their application results in “manifest
injustice” we need not decide, for the appel-
lees have presented no more than vague
argument on this point. If the appellees
wish to invoke such an admittedly narrow
exception to a well established principle of
law, which principle has been shown to be
applicable, the appellees must meet their
burden of producing evidence to sustain the
applicability of the narrow, obscure excep-
tion. This they did not do. Gerald v. Am-
eron Automotive Centers, 145 Ga.App.
200(2), 243 S.E.2d 565 (1978); Meade v. Hei-
manson, 239 Ga. 177, 236 S.E.2d 357 (1977).
[6] Finally, the appellees contend that
the denial of appellants’ motion for summa-
ry judgment was proper because of the
combined effect of (1) the “default” charac-
ter of the prior judgments, (2) the “public
policy” in favor of a full determination of
the issues in this case, and (3) the previous
denial of appellants’ first motion for sum-
mary judgment, which motion was based on
the merits of the claim. The addition of
this third element does not change our anal-
ysis. Under CPA § 56(b) (Code Ann.
§ 81A-156(b)) a defending party may move
for summary judgment “at any time.”
That the prior denial of summary judgment
did not foreclose the subsequent grant of
274 Ga.
summary judgment is manifest in the statu-
tory dictate that an “order or other form of
decision is subject to revision at any time
before the entry of judgment adjudicating
all the claims and the rights and liabilities
of all the parties.” CPA § 54(b) (Code Ann.
§ 81A-154(b)). “Under Code Ann. § 81A-
156 a party against whom a claim is assert-
ed may move at any time for summary
judgment and it shall be granted if under
the expanded record, including the plead-
ings, the moving party is entitled to a judg-
ment as a matter of law.” Ellington v.
Tolar Const. Co., 142 Ga.App. 218, 221, 235
S.E.2d 729, 732 (1977).
III. Conclusion
Under the record here, as expanded by
introduction of : the pleadings and judg-
ments from the district court and superior
court cases, the appellants’ motion for sum-
mary judgment should have been granted.
Judgment reversed.
DEEN, P. J., and BANKE, J., concur.
Ww
£ oO S KEY NUMBER SYSTEM
147 Ga.App. 454
SEWELL et al.
v.
AKINS et al.
No. 55974.
Court of Appeals of Georgia.
Argued May 22, 1978.
Decided Sept. 7, 1978.
Rehearing Denied Oct. 12, 1978.
Suit was brought on three promissory
notes. The DeKalb State Court, Carlisle, J,
entered summary judgment in favor of
surety or guarantor of notes, and plaintiffs
appealed. The Court of Appeals, Shulman,
J., held that issues of fact as to whether
249 SOUTH EASTERN REPORTER, 2d SERIES
there had been meeting of the minds ip
executing notes sufficient to support bind-
ing contracts, whether maker of notes re-
ceived consideration agreed upon by parties,
and whether changes made by plaintiff,
upon receiving executed notes, in lining
through handwritten - extension options
were material and fraudulent precluded
summary judgment.
Reversed.
1. Judgment ¢=181(26)
In suit on three promissory notes, issue
of fact as to whether there had been meet-
ing of the minds in executing notes suffi-
cient to form binding contract precluded
summary judgment.
2. Judgment <=181(26)
In suit on three promissory notes, issue
of fact as to whether maker of notes re-
ceived consideration agreed upon by parties
precluded summary judgment. ~
3. Bills and Notes e=449
Suit on three promissory notes was con-
trolled by article of code governing com-
mercial paper rather than by provisions of
code concerning relative rights of creditor
and surety, since documents involved were
negotiable instruments. Code, §§ 103-201
et seq., 109A-3-301 et seq.
4. Judgment &=181(26)
In suit on three promissory notes, issue
of fact as to whether changes made by
plaintiff, upon receiving executed notes, in
lining through handwritten extension op-
tions were material and fraudulent preclud-
ed summary judgment. Code, § 109A-3-
407.
Zachary & Segraves, J. Ed Segraves, Dec-
atur, Thomas B. Murphy, Bremen, for ap-
pellants.
Swertfeger & Scott, Jack H. Thrasher,
Decatur, Dillard & Shearer, G. Douglas Dil-
lard, Carl E. Westmoreland, Jr., Atlanta,
for appellees.
™
Supreme Court of Georgia.
Feb. 11, 1975.
Truck driver, who
brought action against automobile driver's
employer and who had been unsuccessful
because of his comparative negligence,
brought action against the automobile driv-
er. Automobile driver's motion for summa-
ry judgment on basis of res judicata or
estoppel by judgment was sustained and
truck driver appealed. The Court of Ap-
peals, 132 Ga.App. 463, 208 S.E.2d 295, re-
versed and certiorari was granted.
Supreme Court, Hill, J., held that lack of
mutuality did not preclude the automobile
driver from asserting the plea of res judica-
ta or collateral estoppel; but that, although
a master has privity with his servant and
can claim the benefit of an adjudication in
favor of the servant, the servant is not in
privity with the master so that automobile
driver lacked privity necessary to raise bar
of res judicata or estoppel by judgment;
and that law of the case was inapplicable.
Judgment of Court of Appeals af-
firmed.
Jordan, J., dissented.
1. Judgment &¢=630
Where liability of the master to an
injured third person is purely derivative
and dependent entirely upon the doctrine of
respondeat superior, judgment on the mer-
its in favor of the servant and against the
third person is res judicata in favor of the
master in a suit by such third person, even
though the master was not a party to the
action against his servant.
233 Ga. 671
Jeffrey Cushman GILMER
Vv.
Otis L. PORTERFIELD.
No. 29258.
842 Ga. 212 SOUTH EASTERN REPORTER, 2d SERIES
2. Judgment ¢=696
Judgment entered in action by third
party against servant, whether in favor of
or against the third party, does not preclude
the master from suing the third person for
property damage arising out of the inc
dent.
3. Judgment ¢=625
Alleged lack of mutuality did not pre-
clude automobile driver from asserting res
judicata against truck driver who had pre-
viously brought action against automobile
driver's master under theory of respondeat
superior and who had been denied recovery
because of his comparative negligence.
4. Judgment e=624
For res judicata purposes, test of privi- |
ty is whether one has privity with another,
not whether the other has privity with the 18 1
one on the assumption that such privity is
reciprocal. Code, §§ 3-607, 38-623, 105-
1805, 110-501, 110-503.
5. Judgment ¢=630
Although a master has privity with his
servant and can claim the benefit of an
adjudication in favor of the servant, a sery-
ant is not in privity with the master so as to
be able to claim the benefit of an adjudica-
tion in favor of the master.
6. Judgment <=630
Motorist lacked necessary privity with
his employer and could not raise bar of res
judicata or estoppel by judgment in action
brought against the motorist by truck driv-
er who had previously brought action
against motorist’s employer and who had
been unsuccessful because of his compara-
tive negligence.
7. Courts &=99(1)
Law of the case doctrine was inapplica-
ble to action brought against automobile
driver by truck driver who had previously
brought action against automobile drivers .
The
App
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GILMER v. PORTERFIELD Ga. 843
Cite as 212 S.E.2d 842
employer and who had been unsuccessful
because of his comparative negligence.
Code, § 81A-160(h).
Long, Weinberg, Ansley & Wheeler, Sid-
ney F. Wheeler, George H. Connell, Jr.
Atlanta, for appellant.
William O. Carter, Hartwell, for appellee.
Syllabus Opinion by the Court
HILL, Justice.
This case came to this court on certiorari.
The statement of facts by the Court of
Appeals is restated here for convenience
with slight modification.
In a prior diversity of citizenship case
brought in the United States District Court
for the Middle District of Georgia, Otis
Porterfield and his wife sought recovery
from Philco Distributors, Inc., based solely
upon the alleged negligence of Philco’s
servant, Jeffrey Gilmer, in causing a rear
end collision between Philco’s automobile
being operated by Gilmer and the Porter-
field truck being operated by Mr. Porter-
field in which his wife was a passenger.
Gilmer was not joined as a party defendant,
apparently because of a lack of diversity of
citizenship, the Porterfields and Gilmer all
being Georgia residents. In that case Phil-
co accepted responsibility for any negli-
gence of Gilmer under the doctrine of re-
spondeat superior; plaintiffs’ proffer of ev-
idence as to Gilmer’s admission of negli-
gence or declarations against interest at the
scene was ruled inadmissible as against
Philco, the master and sole defendant; the
jury was charged the doctrine of compara-
tive negligence vis-a-vis Gilmer and Mr.
Porterfield; the jury returned a verdict in
favor of Mrs. Porterfield on her claim but,
apparently as a result of the comparative
negligence charge, in favor of Philco on Mr.
Porterfield’s claim; and the judgment be-
\
came final. J
Mr. Porterfield then
present action against Gilmer based upon
the same acts of negligence involved in the
instituted the
prior case against Gilmer’s master, Philco,
and was confronted in Gilmer's first de-
fense with a plea of “res judicata and/or
estoppel by judgment and/or the law of the
case and/or the fact that all of these mat-
ters were either previously litigated or
could have been litigated previously.”
Plaintiff Porterfield and defendant Gilmer
both moved for summary judgment as to
Gilmer’s first defense; the trial court
granted Gilmer’s motion upholding the de-
fenses of res judicata, ete. and denied the
motion of Porterfield. Porterfield com-
plains of both rulings, having obtained a
certificate of immediate review as to the
denial of his motion.
Porterfield contends, inter alia, that the
trial court’s ruling was erroncous since Gil-
mer’s admissions of negligence or declara-
tons against interest at the scene, ruled
inadmissible as against Philco on the prior
trial, would be admissible against Gilmer in
the instant suit, thus affecting and adding
to the quantum and quality of proof on the
issue of Gilmer’s negligence.
In a 5 to 3 decision (Porterfield v. Gilmer,
132 Ga.App. 463, 208 S.E.2d 295), the Court
of Appeals reversed,fdenying to the defend-
ant the defenses of res judicata and estop-
pel by judgment, finding itself bound by
this court’s adherence to the mutuality rule.
That rule, as expressed by the Court of
Appeals, is as follows: “The general rule is
‘that the operation of the doctrine of res
judicata [or estoppel by judgment] must be
mutual, and that one of the essential ele-
ments of the doctrine is that both the liti-
gants must be alike concluded by the judg-
ment, or it binds neither. Under this rule,
if a judgment cannot be effective as res
judicata against a person, he may not avail
himself of the adjudication and contend
that it is available to him as res judicata
46 Am.Jur.2d, 673, Judg-
ments, § 521 (Emphasis supplied.)”
against others.’
The Court of Appeals found that the fed-
eral court judgment was not effective as
res judicata or estoppel by judgment
against Gilmer and that consequently Gil-
61s
674
-
844 Ga.
mer could not avail himself of that judg-
ment, in view of the requirement of mutu-
ality.
However, some of the decisions of this
court, in which the Court of Appeals found
the mutuality requirement, involved estop-
pels as to recitals in deeds and as to admis-
sions in judicio. Other such decisions in-
volved lack of privity as well as estoppel.
We deal here with a suit by a person
against an employee following an unsuc-
cessful suit against the employer. The em-
ployee has not previously been required to
defend himself. The plaintiff did not ob-
tain a recovery in the prior suit so no ques-
tion as to double recovery is presented.
1. The first question for decision in this
case is whether mutuality is an essential
element to a plea of res judicata or estoppel
by judgment made by an employee who was
not a party to the prior negligence suit.
[1] Case 1: We start by affirming the
rule that where the liability of the master
to an injured third person is purely deriva-
tive and dependent entirely upon the doc-
trine of respondeat superior, a judgment on
the merits in favor of the servant and
against the third person is res judicata in
favor of the master in a suit by such third
person, though the master was not a party
to the action against his servant. See
Roadway Express v. McBroom, 61 Ga.App.
223, 6 S.E.2d 460. See also Code Ann.
§ 110-501.
[2] Case 2: However, this is not to say
that the master was bound by that judg-
ment in order to use it as res judicata, for
the master could still sue the third person
for damages to his vehicle or other property
damaged in the collision, certainly where
the former adjudication favored the servant
and even where it went against him. Due
process of law requires that the master, not
having been a party to the prior adjudica-
tion, have his day in court.
212 SOUTH EASTERN REPORTER, 2d SERIES
above that mutuality was not a require-
ment in case 1, we cannot unswervingly
adhere to a rule of mutuality as it relates to
res judicata.
[3] Therefore, alleged lack of mutuality
should not preclude the servant in the in-
stant case from asserting the plea. If such
plea of res judicata is to be denied the
servant, it is on grounds other than lack of
mutuality.
2. Read together and affirmatively,
Code §§ 110-501 and 110-503 provide that a
judgment on the merits of a court of com-
petent jurisdiction shall be conclusive be-
tween the same parties and their privies as
to all matters put in issue, or which under
the rules of law might have been put in
issue, in the cause wherein the judgment
was rendered, until such judgment shall be
reversed or set aside. These two sections of
our Code provide the primary basis for our.
laws relating to conclusiveness of judg-
ments. See also Code §§ 3-607, 38-623,
and 105-1805.
Code § 110-501 does not refer to mutuali-
ty; it does refer to privity.
[4] The test of privity is to determine
whether one has privity with another, not
whether the other has privity with the one,
and then assume that such privity is recip-
rocal. Walka Mtn. Camp v. Hartford Acc.
& Co., 222 Ga. 249, 251, 149 S.E.2d 365.
[5] Although a master has privity with
his servant and can claim the benefit of an
adjudication in favor of the servant (Road-
way Express v. McBroom, 61 Ga.App. 223,
p. 221, 6 S.E.2d 460, supra), a servant is not
in privity with the master so as to be able
to claim the benefit of an adjudication in
favor of the master. Hunter v. Embree,
122 Ga.App. 576, 178 S.E.2d 221; see also
Davis v. Bryant, 117 Ga.App. 811, 162
S.E.2d 249.
Having established in case 1 above one 13
agreed application of the doctrine of res
judicata, and having established in case 2
[6,7] In the instant case, defendant Gil.
mer lacks that privity necessary to raise the
exe
oth
Sup
Bla
bid
dan
wri
bids
pres
com
hig]
0go
suc
“fal
pub
spec
on
STANLEY v. WHITMIRE Ga. 845
Cite as 212 S.E.2d 845
bar of res judicata or estoppel by judgment
(law of the case being inapplicable, 21 C.J.S.
Courts § 195 p. 330(a); Code Ann. § 81A--
160(h)). The judgment of the Court of Ap-
peals is therefore affirmed.
Judgment affirmed.
All the Justices concur, except JORDAN,
J., who dissents.
o £ KEY NUMBER SYSTEM
7
233 Ga. 675
Norma Whitmire STANLEY
Y.
Joe F. WHITMIRE et al.
No. 29563.
Supreme Court of Georgia.
Feb. 11, 1975.
Bidder for real estate contained in her
father’s estate brought action against the
executors seeking specific performance and
other relief on her bid for such land. The
Superior Court of Hall County, Joseph H.
Blackshear, J., denied requested relief, and
bidder appealed. The Supreme Court, Jor-
dan, J., held that where executors made
written invitation for submission of scaled
bids without reservation, opened bids in
presence of bidders, prepared a written
compilation of the bids, and announced the
highest bidders, executors’ action was anal-
ogous to public sale with announcement of
successful bidders being equivalent to the
“fall of the auctioneer’s hammer” at such
public sale, and high bidder was entitled to
specific performance for sale of real estate
on which she bid.
Reversed.
1. Executors and Administrators e141
Specific Performance = 64
Where representative of a decedent's
estate has authority to make a sale of real
estate al public auction, a contract of pur-
chase and sale is completed upon the fall of
the auctioneer’s hammer at a properly con-
ducted sale, and specific performance of the
contract of sale will be decreed.
2. Executors and Administrators © 360
Al a public sale, representatives of the
estate conducting the sale are under a duty
to withdraw property from sale prior to the
fall of the auctioneer’s hammer where it is
manifest that the property is about to be
sacrificed at a grossly inadequate price.
3. Executors and Administrators &=388(1)
Where executors made written invita-
tion for submission of sealed bids without
reservation, opened bids in presence of bid-
ders, prepared a written compilation of the
bids, and announced the highest bidders,
executors’ action was analogous to public
sale with announcement of successful bid-
ders being equivalent to the “fall of the
auctioncer’s hammer” at such public sale,
and high bidder was entitled to specific
performance for sale of real estate on which
she bid.
4. Executors and Administrators ¢= 366
Where executors made written invita-
tion for submission of sealed bids without
reservation, opened bids in presence of bid-
ders, prepared written compilation of the
bids, and announced the highest bidders,
subsequent conversations between the at-
torney for the executors and second highest
bidder concerning effect of a withdrawal of
the bid of either of two successful bidders
did not have effect of attaching conditions
to the acceptance of bids which had already
been unequivocally accepted by announce-
ment.
5. Stipulations ©=14(10)
Stipulation by parties that it was the
“express desire of all the heirs to allow the
property to remain in the family” did not
RIES
B A.2d 345 (1949); Jonas
in. 299, 137 N.W.24 370
Damar Products Co., 45
7 (1965); Snodgrass v.
Ompany, 406 P.2d 463
nt has failed to demon-
| that he is entitled to
pecial errand exception
oming” rule.
rred by a workman, in
travel to his place of
the premises of the
tL give right to partici-
rkmen’s Compensation]
place of injury was
e scope of employment
mplied requirement in
oloyment, of its use by
fing to and returning
Syllabus point 2, De
fc Service Commission-
3 S.E. 88 (1914).
PORTERFIELD v. GILMER Ga. 295
Cite as 208 S.E.2d 295
132 Ga.App. 463
Otis L. PORTERFIELD
Vv.
Jeffrey C. GILMER.
No. 49172.
Court of Appeals of Georgia,
Division Nos. 1-3.
April 17, 1974.
Rehearing Denied July 19, 1974.
Negligence action by driver of pickup
truck against driver of automobile arising
out of collision of vehicles. The Superior
Court, Richmond County, Edwin D. Fuleh-
er, J., granted defendant’s motion for sum-
mary judgment, and denied plaintiff's mo-
tion for summary judgment, and plaintiff
appealed. The Court of Appeals, Webb, J,
held that prior negligence action by truck
driver against employer of automobile driv-
er resulting in judgment in favor of em-
ployer was not effective as res judicata
against automobile driver; thus, automobile
driver could not claim that prior judgment
was available to him as a bar against truck
driver’s subsequent negligence action.
Reversed.
Stolz, J., filed a dissenting opinion in
which Eberhardt, P. J.,, and Clark, J,
joined.
1. Judgment &=630
Master, sued for negligence of servant
under doctrine of respondeat superior, may
claim benefit of prior judgment in favor of
servant even though he was not a party to
action since all evidence bearing on issue of
servant’s negligence would have been ad-
missible in suit against servant; however, a
servant cannot claim benefit of prior judg-
ment in favor of master as a bar to an
action against him individually in that his
liability to third person is not derivative; it
18 the quantum and quality of evidence
Which determines the outcome of substan-
Hua tae - . Live issue of servant's negligence.
2. Judgment &=625
Generally, res judicata or estoppel by
judgment must be mutual in order to oper-
ate and one of the essential elements of
these doctrines is that both parties must be
concluded by the judgment or it is binding
upon neither; under such rule, if a judg-
ment does not operate as res judicata
against a party, he is not entitled to avail
himself of the decision and assert that it is
available to him as res judicata against
others.
3. Judgment &=630
Prior negligence action in federal court
by truck driver against employer of auto-
‘mobile driver alleging that negligence of
automobile driver was sole cause of collision
of automobile and truck and resulting in
judgment in favor of employer was not
effective as res judicata or as estoppel by
judgment against employee-automobile
driver and he was free to claim or counter-
claim against truck driver; thus, automo-
bile driver could not claim that prior judg-
ment was available to him, under doctrine
of res judicata or estoppel by judgment, as
a bar against truck driver’s subsequent neg-
ligence action against automobile driver in
state court.
4. Estoppel 97, 98(1)
Strangers can neither take advantage
of, nor be bound by, an estoppel.
5. Estoppel &=52(1)
That which is not an estoppel, to the
party insisting on it as an estoppel, cannot
be an estoppel to the other party; estoppel,
to be good, must be reciprocal.
6. Judgment 625
Estoppels by judgment, like estoppels
in pais, must be mutual.
7. Estoppel &=52(6)
Estoppels are not favored at law and in
no case can the doctrine be invoked except
where the estoppel is mutual.
296 Ga.
William O. Carter, Hartwell, for appel-
lant.
Long, Weinberg, Ansley & Wheeler, Sid-
ney IF. Wheeler, Atlanta, for appellee.
Syllabus Opinion by the Court
WEBB, Judge.
We have before us an appeal involving
legal principles generally referred to as “es-
toppel by judgment,” “collateral estoppel,”
“estoppel by verdict,” or “res judicata.”
See generally Sumner v. Sumner, 186 Ga.
390, 197 S.E. 833; Smith v. Wood, 115 Ga.
App. 265, 154 S.E.2d 646. In awpriorrdiversi
"ow
“ty of citizenship case brought in the United”
States District Court for the Middle District”
wisGeorgia;nOtis Porterfield and his wife
soughtwreeovery from Philco Distributors,
Ine. ; based solely upon. the alleged negli=
gence of Philco’s servant)Jeffrey Gilmer, in
causing areollision between Philco’s automo-
bile being operated by Gilmer and the Por-
terfield pickup truck being operated by Mr.
Porterfield in which his wife was a passen-
ger! In that case Philco accepted responsi-
bility for any negligence of Gilmer under
the doctrine of respondeat superior; plain-
tiffs’ proffer of evidence as to Gilmer’s
admissions of negligence or declarations
against interest at the scene was ruled in-
admissible as against Philco, the master and
sole defendant; the jury was charged the
doctrine of comparative negligence vis-a-vis
Gilmer and Mr. Porterfield;
ut, apparently as a result of
Mr. Porterfield then
involved in the
: : ‘ : :
prior case against Gilmer’'s master, Philco,
and was confronted in Gilmer’s first de-
fense with a plea of “res judicata and/or
estoppel by judgment and/or the law of the
I. Gilmer was not joined as a party defend-
ant, apparently because of a lack of diversi-
he comparative negligence chars EaNE)
0 i anc
th ame final.
208 SOUTH EASTERN REPORTER, 2d SERIES
case and/or the fact th
Plaintiff Porterfield and defendant Gilmer
both moved for summary judgment as to
Gilmer’s first defense; the trial court
granted Gilmer’s motion and denied that of
Porterfield; and Porterfield complains of
both rulings, having obtained a certificate
of immediate review as to the denial of his
motion. WPorterfield contends,” inter alia,
that. the (FEE FIiNETWaS CrOTEOUS
since Gilmer's admissions of ‘negligence oF»
1s affecting and
adding to the quantum and quality of proof
on the issue of Gilmer’s negligence. Held:
[1] We reverse both rulings. We held
in Davis v. Bryant, 117 Ga.App. 811, 162
S.E.2d 249, that the relationship of master
and servant does not ipso facto constitute
privity for purposes of res judicata or estop-
pel by judgment. “[T]he rule that where
the liability of the master to.a third person
is purely derivative and dependent entirely
upon the principle of respondeat superior, a
judgment on the merits in favor of the
agent or servant is res judicata in favor of
the principal or master, though he was not
a party to the action, ‘is an exemplification
of the
i
Davis v. Bryant, 117 Ga.App. 811, 812-813,
162 S.E.2d 249, 251, supra, quoting from
Roadway Express, Inc. v. McBroom, 61 Ga.
App. 223, 6 S.E.2d 460. The master, sued
for the negligence of his servant under the
doctrine of respondeat superior, may claim
the benefit of a prior judgment in favor of
the servant since all evidence bearing on
the issue of the servant’s negligence would
have been admissible in the suit against the
servant, thus fully and finally adjudicating
ty of citizenship, the Porterfields and Gil-
mer all being Georgia residents.
y
e
$
Y
PORTERFIELD v. GILMER Ga. 247
Cite as 208 S.E.2d 295
that issue. However, there is no rule of
law that all evidence admissible against the
servant himself is ipso facto admissible
against the master, and it is the quantum
and quality of evidence which determines
the outcome of the substantive issue of the
servant's negligence. Hence the ruling in
Hunter v. Embree, 122 Ga.App. 576, 178
S.E.2d 221, which is dispositive of this ap-
peal: “The liability of a [master] to a third
person is purely derivative and dependent
upon the doctrine of respondeat superior
and a judgment on the merits in favor of
the agent or servant is res judicata in favor
of the [master], though he was not a party
to the action. Roadway Express, Inc. v.
McBroom, 61 Ga.App. 223, 6 S.E.2d 460,
supra; Giles v. Smith, 80 Ga.App. 540, 56
S.E.2d 860. In the reverse situation (which
we have here) where the [master] received
the judgment in his favor, the [servant]
cannot claim the benefit of the prior judg-
ment as a bar to an action against him
individually, as his liability to a third person
is not derivative.”
[2,3] It is suggested that we overrule
Hunter v. Embree, supra, and that the re-
quirement of mutuality of estoppel be aban-
Am.Jur.2d 673, Judgments, § 521. (Empha-
sis supplied.) In the instant case, the prior
federal court dgmentissmopsetfeetive-asa J 5" to Porterfield as to Gilmer’s fi
ve
ws leaving him free to
claim or counterclaim against Porterfield.
Davis: v. Bryant, 117 Ga.App. 811, 16
S.E.2d 249, supra. Consequently, unless the
requirement of mutuality be abandoned,
Gilmer may not avail himself of the judg-
ment and contend that it is available to hn
as a bar against Porterfield.
[4-7] “It is a general universal rule th:
estoppels must be mutual. Strangers cin
neither take advantage of, nor be bound bh:
an estoppel.” Luke v. Hill, 137 Ga. 159, 161,
78 S.E. 345, 346. “And that which is not an
estoppel, to the party insisting on it as a
estoppel, cannot be an estoppel to the othe
party. Estoppel, to be good, must be ‘recip
rocal.’” Gaither 'v. Gaither, 23 Ga. 521, 52
“Estoppels by judgment, like estoppels in
pais, must be mutual.” Dodd v. Mayfield,
99 Ga. 319, 320, 25 S.E. 698. “Estoppels ar
not favored at law and in no case can tl
doctrine be invoked save where the estopp
is mutual. Harris v. Amoskeag Lumb:
Co., 101 Ga. 641, 643, 29 S.E. 302; Dodd
Mayfield, 99 Ga. 319, 320, 25 S.I. J Fak:
v. Hill, 137 Ga. 159(1), 73 S.E. 345, 38 L.I
ANS, 550; Whitman wv. Bolling, 4 . (3a
125, 133.” Tarver v. Jones, 34 Ga. App. 7!
717(2), 131 S.E. 102. “ ‘There is one generil
rule, which is applicable alike to gstoppol
record, by deed, and to equitable estoppel
estoppel in pais: that is, that estoppe
must be mutual. Strangers can neith
take. advantage of, nor be bound by
estoppel; its binding effect in between th
immediate parties, their privies in blood,
law and by estate. Howard v. vi
229 Ga. 279, 281, 191 S.E.2d 46,
rn
In view of the Supreme Court's adhoi
ence to the mutuality rule, we are not fr
to abandon it in this court. gSi i
Order granting summary judgment
Gilmer is reversed; order denying summar;
defense is reversed with direction to strik
the defense.
BELL, .C. 4., PANNELL, P. J, and
DEEN and QUILLIAN, JJ., concur.
EBERHARDT, P. J., and CLARK and
STOLZ, JJ., dissent.
STOLZ, Judge (dissenting).
would affirm the trial court.
(a) As noted in the majority opinion,
plaintiff filed suit against the defend-
s employer (Phileo) in the United States
rict Court. The basis for the suit was
lleged negligence of Phileo’s employee,
er, the present defendant. Phileo’s al-
I liability was purely derivative. The
tiff chose to bring that suit in the
ral courts for reasons best known to
Gilmer, being a resident of Richmond
ity, could not be joined in the plaintiff’s
al court suit because there would not
complete diversity of citizenship, the
tiff also being a Georgia resident.
ever, the plaintiff could have sued Gil-
or both Phileo and Gilmer in the Rich-
Superior Court if he so desired. Be
as it may, the plaintiff selected the
m of his choice and chose the defendant
ished to sue. The issues were fully
and resulted in a defendant's verdict.
plaintiff has had his day in court and
d not now be permitted to re-try the
issues in the courts of this state.
reversing the judgment of the trial
, the majority relies on Hunter v. Em-
122 Ga.App. 576, 178 S.E.2d 221. The
ng in that case should be overruled.
‘termining the validity of a plea of res
ata or estoppel by judgment three
ions are pertinent: (1) Was the issue
ed in the prior adjudication identical
the one presented in the suit in ques-
(2) Was there a final judgment on
merits? (3) Was the party against
1 the plea is asserted, a party or in
v with a party to the prior adjudica-
The foregoing criteria were initially
oped by Justice Traynor in Bernhard
ank of America Nat. Trust & . Sav.
19 Cal.2d 807, 811, 122 P.2d 892
). In developing the criteria, Justice
nor, who later became one of the na-
great Supreme Court Chief Justices,
ved: “The criteria for determining
nay assert a plea of res judicata differ
mentally from the criteria for deter-
g against whom a plea of res judicata
Ga. 208 SOUTH EASTERN REPORTER, 2d SERIES
may be agserted. The requirements of due
process of law forbid the assertion of a plea
of res judicata against a party unless he
was bound by the earlier litigation in which
the matter was decided. [cits.] He is
bound by that litigation only if he has been
a party thereto or in privity with a party
thereto. (Ibid) There is no compelling
reason, however, for requiring that the par-
ty asserting the plea of res judicata must
have been a party, or in privity with a
party, to the earlier litigation. No satisfac-
tory rationalization has been advanced for
the requirement of mutuality. Just why a
party who was not bound by a previous
action should be precluded from asserting it
as res judicata against a party who was
bound by it is difficult to comprehend.
[cit.] Many courts have abandoned the re-
quirement of mutuality and confined the
requirement of privity to the party against
whom the plea of res judicata is asserted.
[cits.] The commentators are almost unani-
[cits.] The courts of
most jurisdictions have in effect accom-
mously in accord.
plished the same result by recognizing a
broad exception to the requirements of mu-
tuality and privity, namely, that they are
not necessary where the liability of the
defendant asserting the plea of res judicata
is dependent upon or derived from the lia-
bility of one who was exonerated in an
earlier suit brought by the same plaintiff
upon the same facts. [cits.] Typical exam-
ples of such derivative liability are master
and servant, principal and “agent, and in-
demnitor and indemnitee. Thus, if a plain-
tiff sues a servant for injuries caused by
the servant's alleged negligence within the
scope of his employment, a judgment
against the plaintiff on the grounds that
the servant was not negligent can be plead-
ed by the master as res judicata if he is
subsequently sued by the same plaintiff for
the same injuries. Conversely, if the plain-
tiff first sues the master, a judgment
against the plaintiff on the grounds that
the servant was not negligent can be plead-
ed by the servant as res judicata if he is
subsequently sued by the plaintiff. In each
PORTERFIELD v. GILMER Ga. 249
Cite as 208 S.E.2d 295
of these situations the party asserting the
plea of res judicata was not a party to the
previous action nor in privity with such a
party under the accepted definition of a
privy set forth above. Likewise, the estop-
pel is not mutual since the party asserting
the plea, not having been a party or in
privity with a party to the former action,
would not have been bound by it had it
been decided the other way.
justify this exception on the ground that it
would be unjust to permit one who has had
his day in court to reopen identical issues by
The cases
merely switching adversaries.”
Graves v. Associated Transport, Inc., 4
Cir, 344 F.2d 894 (1965) and Lober wv.
Moore, 135 U.S. App.D.C. 146, 417 F.2d 714
(1969) are two cases very similar to the case
at bar, to which the foregoing criteria were
applied. In Graves, “
near Fincastle, Virginia, between a passen-
a collision occurred
ger automobile owned and operated by the
plaintiff, Walter B. Graves, and a tractor-
trailer transport owned by the defendant,
Associated Transport, Inc. (hereinafter, As-
sociated], and operated by its employee,
Thomas S. Flowers.
Graves seeks damages from Associated for
In the present action
personal injuries suffered in the collision,
which he alleges was caused by negligence
on the part of the defendant’s driver, Flow-
ers. On July 14, 1964, the jury returned a
verdict for Graves in the amount of $4,000
after the district judge in several distinct
rulings had refused Associated’s plea of res
[344 F.2d p. 895] The
former judgment in question was rendered
by the Law and Chancery Court of the City
of Roanoke, Virginia, on July 10, 1964, in an
action brought by Flowers, the driver of the
judicata.
tractor-trailer combination owned by Asso-
ciated, the defendant,
Graves, the owner-operator of the passen-
present against
ger car and the plaintiff in the case at bar.
Flowers alleged in the state court action
that personal injuries suffered by him in
the collision ‘were the proximate result of
the negligence of Graves; Graves denied
any negligence and contended that the sole
proximate cause of the collision was the
"894-895.
negligence of Flowers. The issues of negli-
gence and contributory negligence as causal
factors in the collision were thus clearly
joined and litigated. The jury in the case
of Flowers v. Graves returned a verdict in
favor of Flowers, awarding him damages in
the amount of $2,000 [p. 896]
The mutuality rule was probably never a
solid wall; exceptions were created under
the pressure of the public interest in an end
to litigation.
certain
The thought was that under
circumstances “once the party
against whom the former judgment was
asserted had been afforded a full and fair
day in court and a reasonable opportunity
to be heard on all the relevant issues, cven
though against a different adversary, a plea
of estoppel by judgment ought to be recog-
nized [p. 897]
case, therefore, the defendant is not pre-
‘In the present
cluded by lack of privity or of mutuality of
estoppel from asserting the plea of res judi-
cata against the plaintiff.’ 122 P.2d at
[p. 897]
In Lober, “appellant sustained personal
injuries within the District of Columbia
while riding as a paying passenger in a
taxicab owned by Arlington Yellow Cab
Company, Inc. (Arlington) and operated by
Willis Moore, the Appellant
thereafter sued both Arlington and appellee
in the Circuit Court of Arlington County,
Virginia, for damages on account of those
Appellee,
served with process in that suit, and his
appellee.
injuries. however, was not
only appearance therein was as a witness at
the trial. The jury, to which the case was
tried, returned a verdict in Arlington's fa-
vor, and the court entered judgment in
with the verdict.
months later, appellant instituted an action
in the District Court for the District of
Columbia against appellee, as the sole de-
conformity Several
fendant, seeking damages for the same in-
juries. Among the defenses appellee as-
serted by his answer was the claim that in
consequence of the Virginia judgment the
Appellee later
for summary judgment on that
ground and the District Court granted the
matter was res judicata.
moved
300 Ga.
notion, and from that disposition appellant
took this appeal [417 F.2d 714, 715]
\s our past decisions fully recognize, a
udgment does not impose an obligation
pon a stranger; for reasons of fundamen-
al fairness and perhaps of due process as
vell, it binds only those who are parties or
vho are in privity with parties to it. But
he considerations are very different where,
15 here, the judgment is invoked defensive-
~ against a party or his privy who is reas-
criing essentially the same cause of action
wainst a different person. Manifestly
this second effort to prove negligence is
ymprehended by the generally accepted
recept that a party who has had one fair
nd full opportunity to prove a claim and
as failed in that effort, should not be
cermitted to go to trial on the merits of
hat claim a second time.” And to counte-
ance impingement upon that precept
vould be to allow repeated litigation of
lentical questions, expressly adjudicated,
nd to allow a litigant having lost on a
uestion of fact to re-open and re-try all
le old issues each time he can obtain a new
dversary not in privity with his former
ne.” So it is not at all surprising to find a
rowing number of well considered cases
olding that irrespective of privity among
fendants and despite nonmutuality in the
eration of the judgment’s estoppel, a pri-
+ adjudication may be used to resist resur-
«ction of the old cause of action against a
‘w defendant. Especially in these times
hen all courts, including our own, are
ruggling with crowded and growing dock-
5, we are sensitive to the persuasive force
these precedents and the cogent reasons
derlying them [p. 718) =. +. We
cd not, however, enter the debate on the
lative merits of mutuality and nonmutu-
'Ly, or explore the question whether either
serves exclusivity in this jurisdiction.
r mutuality is not ironbound in the law
res judicata but, like so many other
ad legal concepts, is subject to well
{ined exceptions. One such exception ob-
ins where a defendant's responsibility is
rivative or secondary and it has been
208 SOUTH EASTERN REPORTER, 2d SERIES
judicially determined that the situation is
lacking in one or more of the conditions
giving rise to it. Consequently, it is settled
that a judgment exonerating a servant or
agent from liability bars a subsequent suit
on the same cause of action against the
master or principal based solely on respon-
deat superior. And conversely, it is the
prevailing rule in the federal and the state
courts that a judgment excusing the master
or principal from liability on the ground
that the servant or agent was not at fault
forecloses a subsequent suit against the lat-
ter on the same claim. The case at bar falls
clearly within this exception. In the Vir-
ginia action, against appellee’s employer,
the circumstances generating a potential
vicarious responsibility were judicially de-
termined, and the verdict and judgment
adverse to appellant negated at least one
essential element of actionable negligence
on appellees part. In the District action,
appellant pressed an identical claim of neg-
ligence, this time against appellee himself.
We hold that the negligence issue on which
appellant was proclaimed the loser by the
adjudication there could not be subjected to
relitigation here [p. 717] . . . As we
understand the law of the Commonwealth
of Virginia, it is designed to insure that
every litigant has an opportunity to be
heard on any appropriate issue in a court of
law. However, the decisions of the highest
court of Virginia convince us that the state
also is anxious to insure that once a party
has been afforded a chance to assert his
claim, further litigation involving that
claim is not to be permitted. The state has
a legitimate interest in the final adjudica-
tion of legal disputes, and it is incumbent
upon us in this case to give effect to that
state policy. [p. 720]
Georgia has long “recognized that
“[w]here the liability, if any, of the master
to a third person is purely derivative and
dependent entirely upon the principle of
respondeat superior, a judgment on the
merits in favor of the agent or servant is
res judicata in favor of the principal or
master though he was not a party to the
PORTERFIELD v. GILMER Giioud
Cite as 208 S.E.2d 295
action.” Roadway Express, Ine. v.
McBroom, 61 Ga.App. 223(1), 6 S.E.2d 460.
At the time of its rendition, Roadway Iox-
press, Inc. v. McBroom, supra, was con-
fronting a problem of first impression in
our state. In arriving at the conclusion
above quoted, this court, on p. 227, 6 S.E.2d
on p. 462, quoted from 1 Freeman on Judg-
ments (5th ed.), 1031, § 469, as follows:
“The rule is general and well settled that
where the liability, if any, of a principal or
master to a third person is purely derivative
and dependent entirely on the principle of
respondeat superior, a judgment on the
merits in favor of the agent or servant, or
even a judgment against him, in so far as it
fixes the maximum limit of liability, is res
judicata in favor of the principal or master
though he was not a party to the action.
This rule is only an exemplification of the
broader rule by which one whose liability is
wholly derivative may claim the benefit of
a judgment in favor of the person from
whom his liability is derived, if not based on
grounds applicable only to the latter.” Our
court went on then to reason, “We think
the provision of the Code that a judgment
is conclusive as to the parties and their
privies, together with the rule applicable
where a master is liable solely under the
principle of respondeat superior, give to
such master the right to plead, as res judi-
cata, a judgment rendered in favor of such
servant or employee, when the identical
negligence in the transaction is the subject-
matter of the suit on which the judgment in
favor of the servant is predicated.” In such
cases, the unilateral character of the estop-
pel is justified by the injustice which would
result in allowing a recovery against a de-
fendant for the conduct of another, when
the other has been exonerated in a direct
action. In such situations, the requirement
of mutuality yields to public policy. “To
hold otherwise would be to allow repeated
litigation of identical questions, expressly
adjudicated and to allow a litigant having
lost on a question of fact to reopen and
re-try all the old issues cach time he can
obtain a new adversary not in privity with
his former one.” Cohen v. Superior Oil I
Corp.. 16 - F.Supp. . 221, 225; affirmed,
1 |
C.C.A.. 90 F.2d 810, cert. denied 302 U.S. ’ ’
726, 58 S.Ct. 47, 82 L.Ed. 561.
The word “res” comes from the Latin and
signifies a thing, an object. 77 C.J.S. Res
p. 273. The phrase “res judicata” literally
means the matter (thing) has been decided.
77 C.J.S. Res, p. 274. In the case before us
n
the issue raised by the plaintiff’s complain
is the same as that raised by the plaintiff i
his suit against the defendant's employer in
the United States District Court, namely,
whether Philco’s driver was negligent in the
operation of its truck. The jury tried thal
issue and resolved it against the plaintiff
and judgment was rendered thereon
There is no conscionable reason why the
plaintiff should be permitted to relitigate
this case.
(b) The decision of this court in Davis v
Bryant, 117 Ga.App. 811, 162 S.E.2d 249, i
in complete harmony with the view ex
pressed in this dissent, and 1 do not believe
it is authority for the holding in Hunter »
Embree, supra, as a review of the facts i
the case will reveal. In Davis 'v. Bryant,
supra, “a collision occurred at Eton, Geor
gia, between a dump truck owned by Mur-
- ray County and a tractor-trailer unit owned
by T. W. Bryant. Davis, an employee oi
Murray County, was operating the county:
truck, and George Willkie Bryant, an cm
ployee of T. W. Bryant, was operating the
latter's truck. The county filed suit agains!
the Bryants seeking to recover for damag:
to its dump truck, contending that the colli
sion and damage was caused by the negl
gence of George Willkie Bryant acting
,
within the scope of his employment with |
W. Bryant. The Bryants answered an
counter-claimed, contending that the colli
sion was caused by the negligence of Davis,
™
an employee and agent of the county, T. W
Bryant seeking to recover from the county
for damages to his tractor-trailer unit and
George Willkie Bryant seeking to recover
damages for personal injuries sustained 1
the collision. The jury found that neithe
the county nor the Bryants were entitled
A
d
S
B
a
i
s
e
n
i
302 Ga. 208 SOUTH EASTERN REPORTER, 2d SERIES
recover, and judgment was entered on the
verdict and not appealed from. Davis, the
employee of the county, was not a party to
the action.” As previously noted in the criteria developed by Justice Traynor
(Bernhard v. Bank of America Nat. Trust & Sav. Assn., supra) in determining the validi-
ty of the plea, three criteria must be met:
(1) Was the issue decided in the prior adju- dication, identical with the one presented in
the suit in question? (2) Was there a final
judgment on the merits? (3) Was the party
against whom the plea is asserted, a party or in privity with a party to the prior
adjudication? Obviously, the situation in
Davis v. Bryant failed to meet the third
criterion, for Davis was neither a party to
the first suit nor in privity thereto. See
also Albers v. Gant, No. 11445, U. S. Dis- trict Court, N. D. of Ga., Atlanta Div,
decided May 5, 1970. (Unpublished opinion by Judge Sidney 0. Smith).
“{c) I would feel remiss if I did not ad- vance yet another reason upholding the po- sition taken in this dissent. The legal theo- ry I have attempted to advance was first expressed in our state in Roadway Express, Inc. v. McBroom, 61 Ga.App. 223, 6 S.E.24 460, supra (1939). The authorities cited from other jurisdictions are bottomed on the same foundation, The position taken in Hunter v. Embree, 122 Ga.App. 576, 178 S.E.2d 221, supra (1970), is antagonistic and repugnant to that legal principle. Being the junior case, Hunter v. Embree should vield to Roadway Express, Inc. v. McBroom, Supra, under the doctrine of stare decisis. See Calhoun v. Cawley, 104 Ga. 335, 344, 30
S.E. 773.
2. In his brief, the plaintiff complains of the exclusion of evidence of alleged admis- sions by Gilmer at the scene of the collision. These were excluded by the trial judge on the basis that they were irrelevant and could not bind the employer, Philco. In my judgment, the U. S. District judge erred in this ruling. The admissions would be ad- missible as part of the res gestae, but would not have bound Philco. However much this court may wish to do it, it cannot serve as a
quasi-collateral means of correcting Errors committed in the trial of cases in the Unit. ed States District Courts. The Plaintifp, remedy for the erroneous ruling in the S. District Court was an appeal to the Uniteq
States Court of Appeals for the Fifty, Cir- cuit. This the plaintiff proceeded to do, byt later elected to dismiss his appeal. He js
now too late and in the wrong forum t,
urge the correction of this error.
For the foregoing reasons, I would affiry the judgment of the tria] court and respect. fully dissent.
I am authorized to state that Presiding Judge EBERHARDT and Judge CLARK join in this dissent.
_/W\
o $ KEY NUMBER SYSTEM
bs
132 Ga.App. 512
James R. BENNETT
Vv.
Junior HALEY et al.
No. 49072.
Court of Appeals of Georgia,
Division No. 1.
June 18, 1974.
Rehearing Denied July 17, 1974.
A
Action by injured pedestrian against
motorist seeking to recover damages arising
from crosswalk accident. The Superior
Court, Clarke County, James Barrow, J.
entered judgment for pedestrian, and mo-
torist appealed. The Court of Appeals,
Clark, J., held that permitting testimony as
to future medical €xpenses was not improp-
er, and that refusal to admit collateral
source evidence offered by defendant,
which tended to show that hospital and
medical bills of pedestrian were paid for by
medicaid, was not improper.
Affirmed.
32 Ga
“The judgment of the court should respond
to the issues made by the pleadings and the
evidence and adjudicate all the issues thus
made. See Tompkins v. Corry, 14 Ga.
118(2); Wood v. McGuire's Children, 17 Ga.
361(1), 63 Am.Dec. 246; South View Ceme-
tery Assn. v. Hailey, 199 Ga. 478, 483(8), 34
S.E.2d 863 and Booker v. Booker, 219 Ga.
358, 133 S.E.2d 353. On a hearing to deter-
mine whether one is in contempt of court
for failure to pay money he had previously
been, by order of court, directed to pay to
another, the court should first determine
whether or not there had been a failure to
comply with the previous order. If such
order had been complied with, there would
be no contempt, but if there had not been a
full compliance with the order, the court
should first find the exact amount which
was in arrears and then proceed to deter-
mine the question of contempt.” The
pleadings in Edwards raised the issue of the
amount of arrearage and the judgment of
the trial court failed to make any finding
on such issue. Therefore, as was held in
that case “[w]e reverse the judgment of the
trial court with direction that the court
determine from the evidence adduced upon
the trial, or in the discretion of the trial
judge, conduct another hearing, after due
notice to the respective parties, and adjudi-
cate whether or not the respondent had
complied with the previous decree. If so,
he should be discharged and the contempt
proceeding dismissed, but if the respondent
has failed to fully comply with such decree,
_ then the court should proceed to determine
the exact amount by which he is in arrears
in the payments due and adjudicate as to
that amount and then determine whether
the respondent is in contempt.”
Inasmuch as there is no transcript in this
court of the hearing conducted by the trial
court in this case, the remaining enumer-
ations of error, all of which require a con-
sideration of the evidence, cannot be con-
sidered.
Judgment reversed with direction.
All the Justices concur.
225 SOUTH EASTERN REPORTER, 2d SERIES
236 Ga. 669
Nick P. CHILIVIS, Commissioner
Vv.
Billy West DASHER et al.
LOWNDES COUNTY, Georgia, et al.
v.
Billy West DASHER et al.
Nos. 30902, 30903.
Supreme: Court of Georgia.
April 7, 1976.
Rehearing Denied April 20, 1976.
hi.
County tax commissioner, against
whom county grand jury imposed a penalty,
brought suit attempting to revive his origi-
nal superior court action and to pursue an
affidavit of illegality to the execution is-
sued against him by the state revenue com-
missioner. The Lowndes County Superior
Court, Marcus B. Calhoun, J., entered sum-
mary judgment in favor of the commission-
er, and an appeal was taken. The Supreme
Court, Ingram, J., held that the commission-
er was barred by the doctrine of res judica-
ta from presenting constitutional issues,
since those identical issues had been
presented to the federal courts and the final
judgment obtained in that forum had bind-
ing res judicata and collateral estoppel ef-
fect regardless of the correctness of the
ruling.
Judgment reversed.
Judgment &=829(3)
County tax commissioner, against
whom county grand jury imposed a penalty
and the state revenue commissioner then
issued an execution for collection of the
penalty, was barred by the doctrine of res
judicata from presenting constitutional is-
sues, since those identical issues had been
presented to the federal courts and the final
judgment obtained in that forum had bind-
CHILIVIS v. DASHER , BE)
Ga. Se
Cite as 225 S.E.2d 32
ing res judicata and collateral estoppel ef-
fect regardless of the correctness of the
Arthur K. Bolton, Atty. Gen., David A.
Runnion, Asst. Atty. Gen., Atlanta, for ap-
pellant in No. 30902.
Bennett & Wisenbaker, Reginald Wisen-
baker, James T. Bennett, Jr., Oris D. Black-
burn, Jr., Valdosta, for appellees in No.
30902.
Reginald Wisenbaker, Blackburn &
Bright, Oris D. Blackburn, Jr., Valdosta, for
appellants in No. 30903.
James T. Bennett, Jr., Valdosta, Arthur
K. Bolton, Atty. Gen., David A. Runnion,
Asst. Atty. Gen., Atlanta, for appellees in
No. 30903.
INGRAM, Justice.
This litigation began after a Lowndes
County grand jury imposed a penalty
against the county tax commissioner pursu-
ant to Code Ann. § 92-5106 and the State
Revenue Commissioner issued an execution
for collection of the penalty and the addi-
tional sums authorized by that Code section.
The tax commissioner filed an equitable
complaint in Lowndes Superior Court seek-
ing injunctive and other relief from the
presentment of the Lowndes County grand
jury and the action of the State Revenue
Commissioner. The tax commissioner later
amended his complaint to allege a violation
of his state and federal constitutional
rights. The trial court ruled in favor of the
tax commissioner on the statutory issues in
the case but made no specific ruling on the
constitutional issues in the case. On appeal
this court reversed in Dasher v. Blackmon,
229 Ga. 289, 191 S.E.2d 82 (1972). The tax
commissioner then made application for a
writ of certiorari from the U. S. Supreme
Court but it was denied. Dasher v. Black-
mon, 409 U.S. 1107, 93 S.Ct. 900, 34 L.Ed.2d
687 (1973).
Thereafter, the tax commissioner filed a
complaint in the U. S. District Court for the
Middle District of Georgia alleging the
same facts and seeking the same relief as
the equitable complaint in Lowndes Superi-
or Court. The U. S. District Court held
that the tax commissioner’s case was barred
by the doctrine of res judicata and granted
summary judgment in favor of the State
Revenue Commissioner and the other de-
fendants. This decision was appealed by
the tax commissioner to the U. S. Circuit
Court of Appeals for the 5th Circuit and
that court [summarily affirmed the district
court’s dismissal based on the doctrine of
res judicata.
The tax commissioner next attempted to
revive his original action in Lowndes Supe-
rior Court and to pursue an affidavit of
illegality to the execution issued against
him by the Revenue Commissioner based on
the same constitutional issues that had been
raised previously. The trial court held that
the constitutional issues had not been actu-
ally decided in the prior state court litiga-
tion and these issues should be ruled upon
and were not barred by the doctrine of res
judicata. After considering these constitu-
tional issues, the trial court found they had
merit and granted a summary judgment in
favor of the tax commissioner.
We first examine the threshold issue as
to whether the tax commissioner is barred
from raising the constitutional issues ar-
gued in this appeal or whether they should
be decided as no specific ruling was made
on them earlier.
The principle of law involved in deter-
mining whether these issues remain for de-
cision is embodied in Code Ann. § 110-501.
It provides that: “A judgment of a court of
competent jurisdiction shall be conclusive
between the same parties and their privies
as to all matters put in issue, or which
under the rules of law might have been put
in issue in the cause wherein judgment was
rendered, until such judgment shall be re-
versed or set aside.”
An application of this Code section re-
quires a holding that the constitutional is-
sues presented for decision in this appeal
are barred by the doctrine of res judicata.
These identical issues were presented to the
federal courts and the final judgment
obtained in that forum has binding res judi-
ble
34 Ga.
cata and collateral estoppel effect regard-
less of the correctness of their rulings. See
1B Moore's Federal Practice (2d Ed.) p. 637;
also Miami Properties, Inc. v. Fitts, 226 Ga.
300, 175 S.E.2d 22 (1970). Accordingly, it is
unnecessary to determine whether a final
decision on the merits of the tax commis-
sioner’s constitutional claims was rendered
in the prior appeal to this court.
This holding requires a reversal of the
trial court’s judgment in the appeal dealing
with the equitablgJcomplaint filed by the
tax commissioner. In the companion ap-
& Wpeal, in the affidavit of illegality case, the
tax commissioner concedes “that the same
constitutional issues” are involved in it as
the equity case. Thus, even if it can be said
that the affidavit of illegality case asserts a
different claim than the claims asserted in
the equitable complaint and the complaint
in the federal court, it would also be barred
by the final judgment in the federal case as
the issues in the various claims are identi-
cal. Estoppel by judgment arises under
these circumstances and an application of
this doctrine requires a reversal of the
judgment in the affidavit of illegality case.
See Sumner v. Sumner, 186 Ga. 390(2), 197
S.E. 833 (1938).
Judgment reversed.
All the Justices concur.
Oz KEY NUMBER SYSTEM
236 Ga. 661
AIR LINE EMPLOYEES ASSOCIATION
INTERNATIONAL
v.
Nelson EVANS.
No. 30610.
Supreme Court of Georgia.
April 7, 1976.
Rehearing Denied April 20, 1976.
Suit was brought against union by em-
ployee who was discharged by employer at
225 SOUTH EASTERN REPORTER, 2d SERIES
direction of union for his alleged failure to
pay initiation fee to union. An interlocuto-
ry appeal was taken by the union from an
order of the Fulton County Superior Court,
Jeptha C. Tanksley, J., denying a motion to
dismiss the complaint for failure to state a
claim. The Supreme Court, Gunter, J., held
that the employee was not required, as a
condition precedent to filing suit against
union, to first exhaust his administrative
remedies under the Railway Labor Act,
since the jurisdiction of railway carrier ad-
justment boards has been construed as en-
compassing disputes between employees
and their employers, but not disputes be-
tween an employee and his bargaining rep-
resentative.
Judgment affirmed.
Labor Relations 416.7
Employee who was discharged by em-
ployer at direction of union for his alleged
failure to pay his initiation fee to the union
was not required, as a condition precedent
to filing suit against union, to first exhaust
his administrative remedies under the Rail-
way Labor Act, since the jurisdiction of
railway carrier adjustment boards has been
construed as encompassing disputes be-
tween employees and their employers, but
not disputes between an employee and his
bargaining representative. Railway Labor
Act, § 1 et seq, 45 U.S.C.A. § 151 et seq.
Wyatt Johnson, Gulf Breeze, Fla., Adair,
Goldthwaite, Stanford & Daniel, J. R.
Goldthwaite, Jr., Atlanta, for appellant.
Haas, Holland, Levison & Gibert, Richard
N. Hubert, Fisher & Phillips, Dean E. Rice,
Atlanta, for appellee.
GUNTER, Justice.
This is an interlocutory appeal, originally
granted by this court on the application of
two applicant-defendants, from a judgment
that denied the defendants’ motion to dis-
miss the plaintiff's complaint. After this
\
758 Ga.
The issue confronted by the Georgia Su-
preme Court in Hunter v. Dean, supra, was
whether an indigent defendant could consti-
tutionally be ordered to pay a fine as a
condition precedent to being allowed to
serve her sentence on probation. Although
the court answered this question in the
affirmative, it upheld the defendant's revo-
cation only after a thorough examination of
the facts of that particular case. Among
the reasons enumerated for sustaining the
revocation, the court listed the following:
“Fourth, viewed from the perspective of the
court below at the time of sentencing in
this case, the sentence which resulted was
quite reasonable, as well as appropriate to
the circumstances of the particular case and
the individual involved. Of critical signifi-
cance is that the sentence imposed and the
sentence challenged here was based on a
representation that a fine could be paid by
the person seeking probation.” Id. at 217,
239 S.E.2d 791. The court concluded by
stating, “We do not think that a defendant
should be able to mislead the court as to
ability to pay a fine, thus inducing an alter-
nate sentence, and later seek to rely upon
constitutional safeguards to avoid punish-
ment.” Id. at 220, 239 S.E.2d 791.
[1-3] The state's burden in a probation
revocation proceeding is merely to establish
by “slight evidence” that the defendant has
not complied with a condition of the proba-
tion. See, e.g., Kellam v. State, 154 Ga.
App. 561, 269 S.E.2d 493 (1980). However,
in light of the Hunter decision, it appears
that even where a condition has not been
complied with, the circumstances of the in-
dividual defendant must be taken into con-
sideration in determining whether revoca-
tion is warranted. In the case before us
‘now, the appellant asserts on appeal that
her only source of income is public assist-
ance, that she was incapable of making the
payments required of her, and that had she
received adequate legal representation, she
would have made these facts known to the
court. Although indigency would not in
and of itself excuse the appellant from com-
plying with the conditions of her probation,
~ we must agree on the basis of the record
before us that she had no opportunity at
291 SOUTH EASTERN REPORTER, 2d SERIES
the revocation hearing to establish her al-
leged inability to perform. The order of
revocation is accordingly reversed, and the
case is remanded for a new hearing on this
issue.
Judgment reversed and case remanded
with direction.
McMURRAY, P. J., and BIRDSONG, J,
concur.
W
o § KEYNUMBER SYSTEM
¥
162 Ga.App. 428
SUBSEQUENT INJURY TRUST FUND
V.
ALTERMAN FOODS, INC.
No. 63463.
Court of Appeals of Georgia.
May 26, 1982.
Judicial review was sought of denial of
employers’ claim against subsequent injury
trust fund. The Gordon Superior Court,
Tom Pope, J., reversed. Application for
discretionary appeal was granted. The
Court of Appeals, Shulman, P. J., held that
determination in proceedings between the
claimant and employer was not res judicata
of employers’ claim against the fund.
Judgment affirmed.
Carley, J., concurs in judgment only.
1. Appeal and Error ¢=422
Discretionary appeal was not subject to
dismissal for failure to include a statement
of jurisdiction in the original notice of ap-
peal. Code, § 6-802.
2. Workers’ Compensation 1791
Determination in proceedings between
workers’ compensation claimant and her
employer was not res judicata of employers’
SUBSEQUENT INJURY, ETC. v. ALTERMAN FOODS Ga. 759 Cite as, Ga.App., 291 S.E.2d 758
claim against subsequent injury trust fund.
Code, §§ 110-501, 114-901 et seq., 114-917.
Michael J. Bowers, Atty. Gen., Gary R.
Hurst, Asst. Atty. Gen. Atlanta, for appel-
lant.
H. Durance Lowendick, Atlanta, for ap-
pellee.
SHULMAN, Presiding Judge.
Cartwright, an employee of appellee, suf-
fered an injury in November 1977, for
which she received workers’ compensation
benefits. She returned to work in April
1978, but was discharged on June 9, 1978,
for excessive absenteeism and for engaging
in outside employment. Appellee contends
that it and the employee subsequently en-
tered into an agreement for the payment of
workers’ compensation benefits as a result
of an injury occurring June 1, 1978. How-
ever, the employee then requested a hear-
ing to determine whether her incapacity
was due to a change of condition with re-
gard to her injury of November 1977. The
administrative law Judge found that there
had been a change of condition and, in
November 1978, entered an award based on
that finding. No appeal was taken from
that award. In March 1979, appellee ap-
plied to appellant for reimbursement of the
benefits paid subsequent to June 8, 1978.
Appellant denied the claim based on its
determination that Cartwright had not sus-
tained a subsequent injury within the
meaning of Code Ann. Ch. 114-9, Appellee
sought a hearing to determine the correct-
ness of the denial of its claim. The admin-
istrative law judge ruled that the claim was
properly denied because Cartwright made
no claim against appellee based on an inju-
ry occurring in June 1978; because appellee
had paid no money for an injury in June
1978; and because the award of November
1978 was res judicata. After that award
was affirmed by the full board, appellee
took an appeal to the superior court. That
court ruled that the award of November
1978 was not res judicata and that the
standards for determining entitlement to
reimbursement were different from the
standards applicable to determination of a
change of condition. The superior court
reversed the award and returned the case to
the board for consideration of appellee's
claim of reimbursement. Appellant applied
to this court for a discretionary appeal, and
we granted it to decide the issue of the
effect that an award of benefits pursuant
to a claim by an employee should have on
an application for reimbursement under Ch.
114-9. :
[1] 1. Appellee has moved to dismiss
this appeal for appellant's failure to follow
to the letter the requirements of Code Ann.
§ 6-802. Appellant's mistake was to fail to
include a statement of jurisdiction in the
original notice of appeal. However, appel-
lee failed to consider the remainder of
§ 6-802. That section expressly provides
that an appeal shall not be dismissed for
failure to include the jurisdictional state-
ment. Appellee’s motion is denied.
[2] 2. Appellant enumerates as error
the failure of the superior court to address
two of the grounds on which the denial of
reimbursement was based and the court’s
determination that appellee's claim was not
barred by res judicata. We find merit in
neither contention.
An examination of the two reasons for
denial of reimbursement which appellant
argues were not addressed shows that they
are actually part of the same res judicata
theory rejected by the superior court. The
ALJ based his decision on the fact that the
claimant had not filed for benefits based on
a June 1978 injury and the fact that appel-
lee had not paid benefits for an injury in
June 1978. Those two reasons are just al-
ternate ways of saying that the proceedings
between the claimant and the employer are
conclusive of the employer's right to reim-
bursement from the Subsequent Injury
Trust Fund. There is no practical differ-
ence between those holdings and the ALJ's
holding that res judicata barred the claim
for reimbursement. It may be seen, there-
fore, that the superior court, in rejecting
the bar of res judicata and in noting that
the purposes of the two proceedings here
760 Ga.
involved are different, did address all the
pertinent holdings made by the ALJ and
adopted by the full board.
The doctrine of res judicata is statutorily
established in this state in Code Ann.
§ 110-501: “A judgment of a court of com-
petent jurisdiction shall be conclusive be-
tween the same parties and their privies as
to all matters put in issue, or which under
the rules of law might have been put in
issue in the cause wherein the judgment
was rendered, until such judgment shall be
reversed or set aside.”
Applying that statute to the facts of this
case, it is apparent that the award to the
employee cannot be conclusive in the
present case because the parties are not the
same. The appellant was not a party to the
action which resulted in an award to Cart-
wright.
An additional reason for denying res judi-
cata effect to the award to Cartwright is
the doctrine of mutuality. The Subsequent
Injury Trust Fund is specifically protected
from any res judicata effect of awards to
which it was not a party. Code Ann.
§ 114-917. It would be grossly unjust to
permit appellant to attempt to bind another
party by an adjudication by which appellant
could not be bound. We decline to be a
party to that injustice.
The superior court’s judgment was not
that appellee was entitled to reimburse-
ment, but merely that it had a right to seek
reimbursement. The superior court's di-
rection that the case be remanded and ap-
pellee be permitted to introduce evidence to
support its claim to reimbursement was
proper and must be affirmed.
Judgment affirmed.
QUILLIAN, C. J., concurs.
CARLEY, J,
only.
concurs in the judgment
/
W
0 £ KEY NUMBER SYSTEM
291 SOUTH EASTERN REPORTER, 2d SERIES
NATIONWIDE-PENNCRAFT, INC.
VY.
ROYAL GLOBE INSURANCE
COMPANY.
No. 63639.
Court of Appeals of Georgia.
May 26, 1982.
Certiorari Denied July 9, 1982.
Insurer brought action against employ-
er to recover premiums due on workers’
compensation policy. The State Court, Ful-
ton County, Charles L. Carnes, J., entered
judgment in favor of insurer and employer
appealed. The Court of Appeals, Shulman,
P. J., held that where suit in question was
not one which was involved in prior action
between the parties which eventually re-
sulted in settlement, instant suit was not
barred under theories of compromise and
settlement, accord and satisfaction, estop-
pel, or res judicata.
Affirmed.
1. Accord and Satisfaction =2(2)
Compromise and Settlement &=16(2)
Judgment <=586(1)
Where policy at issue in second suit
was not one of those which was involved in
the first suit as to which a settlement was
reached when judgment in the first suit
was attempted to be domesticated in Geor-
gia, second suit was not barred by the set-
tlement or under the theories of accord and
satisfaction, estoppel, or res judicata. Code,
§ 20-1201.
2. Workers’ Compensation 1063
Fact that workers’ compensation policy
failed to contain an agreement that the
insurer would pay workers’ compensation
benefits to employees who were entitled to
benefits regardless of any default by the
employer did not preclude the insurer from
recovering premiums due as the purpose of
the statutory requirement for such a clause
is not to invalidate the contract but to estop
A SEZd 14) 246
)
AO 72A
(Rev.8/82)
ofp
Rae £; WL A0 Sl
a Aon clers
IN THE UNITED STATES DISTRICT COURT BRI Ge
FOR THE NORTHERN DISTRICT OF GEORGIAN" 1 \( | ekudy
ATLANTA DIVISION 2 bo \
WARREN McCLESKEY, :
Petitioner, :
vs. ’ CIVIL ACTION
NO. C87-1517A
RALPH M. KEMP, Warden, -
Georgia Diagnostic and
Classification Center, 3
Respondent. 3
ORDER OF THE COURT
This action is before the court on petitioner's motion to
stay execution as ordered by the Superior Court of Fulton County,
Georgia. See State v. McCleskey, Case No. A-40553 (Fulton County
Superior Court, June 24, 1987). In order that the merits of the
petition may be satisfactorily considered, the court has deter-
mined that an indefinite stay of the execution is required. See
Dobbert, v.) Strickland, 670 7.24: 938 (11th Cir. 13982).
In sum, petitioner's motion for stay of execution is
GRANTED. Petitioner's ex tion is STAYED... 28 USC $2251.
SO ORDERED, this 2 = day of ly , “1987.
TESTS A TRUE COPY : "
( UNJYTED STATES DISTRICT JUDGE
/s
7/5/57
FILED IN OPEN COURT
Luther D. Lm Clerk
By: Odons w- farts
UNITED STATES DISTRICT COURT Deputy Clerk
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY, *
x CIVIL ACTION NO. C87-1517A
Petitioner, *
*
Ve *
* HABEAS CORPUS
RALPH KEMP, WARDEN, * 28:0.S.C., §$:2254
*
Respondent. *
ORDER
This Court having scheduled a hearing in the above-styled
action for 10:00 a.m. on Wednesday, July 8, 1987, and counsel
for the Petitioner having requested that the Petitioner be
present for said hearing, it is hereby ORDERED that the
Respondent produce the Petitioner, Warren McCleskey, at said
time in the courtroom of the undersigned Judge in the United
States District Court, 75 Spring Street, Atlanta, Georgia.
This 8th day of July, 1987,
Je EN FORRESTER, Judge
United States District Court
AOT2A ©
(Rev. 8/82)
ATTEST: A TRUE COPY . OWEN FORRESTER
CERTIFIED THIS UNITED STATES DISTRICT JUDGE
FILED IN CLERKS OttiCE
~ UB.D.C.- Atlanta
IN THE UNITED STATES DISTRICT COU
FOR THE NORTHERN DISTRICT OF GE
ATLANTA DIVISION
WARREN McCLESKEY, :
Petitioner, :
vs. $ CIVIL ACTION NO.
1:87-CV-1517~30F
RALPH M. KEMP, WARDEN,
Respondent. :
ORDER
This action is before the court on the respondent's motion
to stay the judgment of this court pending appeal to the United
States Court of Appeals for the Eleventh Circuit. The Court
agrees that a stay 1s appropriate and the respondent's motion is
therefore GRANTED. This court's judgment of December 23, 1987 is
hereby STAYED until the issuance of the mandate of the Eleventh
Circuit Court of Appeals and until that mandate is made the
judgment of this court, Spey completing the appellate process.
SO ORDERED, this / day of Ahr A , 1988.
AUG © 7 1991 AUG § 4 1991
Gn Clerk ) ENTERED ih Bane T
0 @~—
lerk
MAR 17 1388
FILED IN CLERK'S oFFICE
IN THE UNITED STATES DISTRICT COURT AR 8 1988
FOR THE NORTHERN DISTRICT OF GEORG a
ATLANTA DIVISION By: {/.
WARREN MCCLESKEY,
Petitioner,
CASE NO. 1:87-cv-1517-J0F
VS.
RALPH M. KEMP, WARDEN,
Respondent.
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I, J. OWEN FORRESTER, the District Court Judge in
the above-captioned action, do hereby certify, pursuant to
28 U.8.C. Section 2253, that there exists probable cause to
appeal. )
This 7 ~ day of WY prea , 1988.
J. OWEN FORRESTER,
UNITED STATES DISTRICT JUDGE
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: 43 (REV. 3-8-77)
FEDERAL BUREAU OF INVESTIGATION
Date of transcription 7/3/78
FRANK KENNEBREW, Director, Federal Community Treatment
Center (FCTC-A), 715 McDonough Boulevard, SE, provided the
following:
On May 31, 1978, OFFIE GENE EVANS, Bureau of Prisons
Registry Number 39016-1333, was received at FCTC-A, from
the United States Penitentiary, Atlanta, Georgia. EVANS,
a Federal prisoner, serving a Federal sentence, was to remain
in the care and custody of FCTC-A, a Bureau of Prisons facility,
until his parole date on July 6, 1978.
On May 31, 1978, EVANS was advised of the provisions
of Title 18, Section 4082 (4d), United States Code, by CHARLES
EDWARD BARKER, JR., Senior Case Manager, FCTC-A.
On June 19, 1978, a urine specimen analysis for
EVANS was positive for quinine and opium. This lab report
is being maintained in EVANS' file.
On June 22, 1978, as a result of this lab report,
: EVANS was restricted to FCTC-A, except for meals, by EARL
LAWSON, case manager, FCTC-A.
On June 23, 1978, JOHNNY W. DENARD, student assistant,
FCTC-A, authorized EVANS to leave FCTC-A, and remain away
from FCTC-A, until 6:00 PM on June 23, 1978, for the purpose
of work. EVANS signed out at 5:00 AM on June 23, 1978, indicating
he would return to FCTC-A by 6:00 PM on June 23, 1978.
As of June 26, 1978, EVANS had not returned to
FCTC-A and KENNEBREW declared EVANS a Federal escapee from
FCTC-A as of 6:00 PM on June 23, 1978.
ion on 6/26/78 at Atlanta, Georgia Eve # AT 76-6539-/ Zz
a |
ov— SA DAVID J. KELSEY:pig pia 6/27/78
This document contains neither recommendations nur conclusions of the FBI. It is the property of the FBI and is loaned to your agency;
it and its contents are not to be distributed outside your agency.
BOL. AT. kT
Fr
acco ANT BEN
SUZ ev. i=
Date of transcription
CARL NEELY, Special Agent,
Investigation (GBI), Atlanta, Georgia,
of: 2 i)
FEDERAL BUREAU OF INVESTIGATION
7/7/78
Georgia Bureau of
provided the following information:
He recently had several conversations with an
individual known to him as OFFIE EVANS. He also had
recently been advised, subsequent to these conversations
with EVANS, that EVANS was a Federal escapee by SA DAVID ..
KELSEY of the Atlanta FBI Office.
On the morning of July 3, 1978, he had occasion
to speak with EVANS on the telephone in his office. Since
EVANS resided near his office he dispatched GBI Agents
BRUCE PICKETT and MOSES ECTOR to 2905 Springdale Road, S.E.,
Atlanta, Georgia. While he was still speaking with EVANS
on the telephone, PICKETT and ECTOR arrested EVANS.
EVANS was detained at the GBI Office until the
arrival of SA DAVID J. KFLSEY.
7/3/78 Atlanta, Georgia
at
Interviewed on
SA DAVID J. KELSEY/rk
7 G7
This document contains neither recommendations nor conclusions of the FBI.
your agency; it and its contents are not to be distributed outside your agency.
File § AT 76-6539 X
7/6/78
Date dictated
It 1s the property of the FBI and is loaned to
FBI/DOJ
BE
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