Opinion
19179.
ARGUED JANUARY 11, 1956.
DECIDED FEBRUARY 15, 1956.
Equitable petition. Before Judge Shaw. Fulton Superior Court. September 21, 1955.
S. S. Robinson, for plaintiff in error.
Phillips, Johnson Williams, contra.
1. The plaintiffs in error, prior to the call of the case, having amended the bill of exceptions, by designating as "defendants in error" the person named as defendant, in her individual capacity and as executrix of the estate of a named person, in the plaintiffs' petition, and service of the bill of exceptions having been acknowledged by counsel of record for that person as counsel for the "defendants in error," the motion to dismiss the bill of exceptions, because no defendant in error is designated therein, is without merit. Smith v. Glenn, 211 Ga. 868 ( 89 S.E.2d 515).
2. Since, under Code § 33-119, "A judgment in ejectment shall be conclusive as to the title between the parties thereto, unless the jury find for the plaintiff less than the fee," and since the petition and the exhibits attached thereto show that the title to the property now sought to be recovered by the plaintiffs was adjudicated in an ejectment proceeding between the same parties ( Bostic v. Nesbitt, 209 Ga. 159, 71 S.E.2d 213), based upon the judgment awarding a year's support to the defendant's testatrix, both of which judgments the plaintiffs now seek to set aside upon the ground that the judgment awarding a year's support was procured by the fraud of the applicant, which was known to and could have been asserted by the plaintiffs in defense of the ejectment proceeding, and since it also appears that the present plaintiffs sought and obtained a money judgment in their favor in the ejectment proceeding as to valuable improvements and other expenses alleged to have been made and incurred by them with respect to the premises which they now seek to recover — the trial judge did not err in sustaining a general demurrer based upon the grounds that the present petition fails to state a cause of action, and that it appears therefrom that the issues which the petitioners seek to raise and have adjudicated have already been adjudicated against them. Code § 110-501; York v. Clopton, 32 Ga. 362; Thaxton v. Roberts, 66 Ga. 704 (4); Lamar v. Knott, 74 Ga. 379; Battle v. Wright, 116 Ga. 218 ( 42 S.E. 347); Merritt v. Hutchings, 168 Ga. 734 ( 148 S.E. 916); Gamble v. Gamble, 207 Ga. 380 ( 61 S.E.2d 836).
Judgment affirmed. All the Justices concur.