Opinion
14549.
JUNE 11, 1943.
Equitable petition. Before Judge Camp. Laurens superior court. March 4, 1943.
C. C. Crockett, for plaintiff. Nelson Nelson, for defendant.
1. Under the rule of res judicata, a former judgment is conclusive in a suit "between the same parties 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." Code, § 110-501; Sumner v. Sumner, 186 Ga. 390 (2) ( 197 S.E. 833). But the parties are not the same, nor are the issues the same, if in one case the defendant is sued individually, and in the other case he is sued in a representative capacity. Boone v. Loggins, 178 Ga. 471 ( 173 S.E. 715); 30 Am. Jur. 957, § 224, and cit. Accordingly, where in the present suit the defendant, Dominy, was sued individually with respect to the title of school property, and for an injunction against his individual interference with the possession of the plaintiffs as trustees, and where in a former suit in 1925 he was sued as one of several "pretended trustees" with respect to alleged rights of possession and acts of trespass as such "pretended trustees" ( Dominy v. Stanley, 162 Ga. 211, 133 S.E. 245), the issue in the former 1925 litigation did not involve any right or claim of the defendant as an individual apart from alleged trusteeship; and for this reason he was not bound in the present suit by any adverse holding by the trial court or this court in the 1925 litigation.
( a) The present defendant was not concluded by the 1925 litigation on account of his subsequently arising privity with the Dudley Consolidated School District or with Laurens County Board of Education, under warranty deeds which they executed to him in 1940, since neither of the named grantors was a party to the 1925 litigation, and the Consolidated School District was not even created until 1938.
( b) The present defendant was not concluded by the 1925 litigation, for the additional reason that the parties plaintiff in the two suits were different, in that in the present case the two plaintiffs sued in their representative capacity as trustees under a trust deed made in 1843, and under an order of court appointing them to carry out the trusts in such deed; whereas in the 1925 suit the present plaintiffs, joined with others, sued merely as patrons or citizens interested in maintaining the property in question as a school.
2. In other litigation, under a suit for injunction and other equitable relief, begun in 1938 and brought as in this case by the present plaintiffs as trustees, against the County Board of Education and the Dudley Consolidated School District, not only were the parties plaintiff the same in the two cases, but the parties defendant must be treated as the same, since the defendants in the 1938 suit were the predecessors in title of the present defendant. The issues in the two cases also were the same, since both suits involved the rights of the plaintiffs as trustees under the trust deed of 1843, the validity of such deed, and the title and right of the defendants, and alleged acts of trespass with respect to the plaintiffs' title and right of possession as such trustees. Accordingly, under the present defendant's plea of res judicata and estoppel in the instant suit, the parties are bound by the decisions rendered in such 1938 litigation, both as to matters actually "put in issue" and matters which "might have been put in issue."
( a) Under the holdings of this court with respect to the 1938 litigation, in Laurens County Board of Education v. Stanley, 187 Ga. 389, 390 ( 200 S.E. 294), and Stanley v. Laurens County Board of Education, 188 Ga. 581 ( 4 S.E.2d 164), the trust deed, upon which any present right of the plaintiffs as trustees depends, was "absolutely void" for want of a sufficient description of the property, and could not be aided by aliunde proof, since it furnished "no key for the identification of the land;" and the plaintiffs were not entitled to relief, since "although in actual possession [they] are without any title or right of possession." Accordingly, on the present plea by the defendant of res judicata and estoppel, the judge trying the case without a jury did not err in finding for the defendant.
( b) Even if it could be held that the principle of res judicata or estoppel under the 1938 litigation and decisions did not operate against the plaintiff trustees, still they would not be entitled to relief, since the former decisions of this court, that the deed under which they claim was "absolutely void," and that they are "without any title or right of possession," would operate against them at least under the rule of stare decisis. There is no motion to review or overrule either of such former decisions, the latter of which was unanimous.
3. As held in the two decisions of this court, cited above, with respect to the 1938 litigation, the plaintiff trustees did not in that suit plead any res judicata or estoppel with respect to the judgments in the 1925 suit. Accordingly, and since the 1938 suit involved essentially the same cause of action and issues as the present suit, and both of these cases were in effect between the same parties, the now pleaded rule of res judicata precludes the plaintiff trustees from setting up in the present suit any res judicata by virtue of the 1925 litigation, since the plaintiffs are now bound, not only by what they actually pleaded in their 1938 suit, but by what they might have there pleaded.
4. Under the preceding rulings, the judge did not err in finding for the defendant.
Judgment affirmed. All the Justices concur.
No. 14549. JUNE 11, 1943.
In 1925 the two present plaintiffs, R. M. Stanley and N. P. Metts, now suing as trustees, but then joined and suing with others as patrons of Centerville Schoolhouse, brought an equitable petition against E. Burnsett Dominy, who is now sued individually as the only defendant, but was then sued with other persons as "pretended trustees" for the Centerville Schoolhouse, to enjoin acts of trespass "on the part of said pretended trustees," and to obtain the appointment of five persons to act as trustees for Centerville Schoolhouse by virtue of a trust deed made by grantors in 1843, and conveying to "the trustees of the Centerville Schoolhouse," without naming any trustees, an unidentified ten-acre tract of land "for school purposes." The superior court overruled a general demurrer to this petition, and in affirming the judgment this court held, that the suit was maintainable against general demurrer; that "the defendants . . who had acted as trustees for the Centerville School, . . no doubt in good faith, . . had no title to this property; nor did the Board of Education of Laurens County have title to it; and the consolidation of the district in which Centerville School was located with another school district [Oak Grove and Berry district under the name of Oak Grove Consolidated School] did not have the effect of investing the County Board of Education with the title to the property or with the right to sell the same." This court also held that the appointment of five trustees to act under the 1843 trust deed was proper. Dominy v. Stanley, 162 Ga. 211 ( 133 S.E. 245), decided in 1926. However, as that suit was brought, neither the County Board of Education nor the Oak Grove Consolidated School nor the Dudley Consolidated School District was a party. The Dudley School District, into which other school districts were consolidated, was not created until 1938. As to the present defendant, Dominy, now sued individually, it was not alleged or decided in the 1925 litigation that he had done or threatened any trespass or was claiming any right other than as a "pretended trustee" of the Centerville School, along with other defendants as alleged "pretended trustees." Nor was any question raised or decided in the 1925 litigation as to the invalidity of the trust deed of 1843 because of insufficient description.
In 1938 the present plaintiffs, then suing as surviving trustees under their appointment in the 1925 litigation and under the trust deed, brought a suit against the Laurens County Board of Education and the Board of Trustees of Dudley Consolidated School District, which was created in 1938, to enjoin the defendants from removing the Centerville Schoolhouse and from cutting timber on the land. After the trial court had overruled a general demurrer to that petition, it was held by this court that the trust deed of 1843, under which the plaintiff trustees claimed, was "absolutely void," since the description was insufficient in failing to furnish any "key for the identification of the land," and that the description could not be aided by "a survey to be made in the future." It was held also that the 1926 decision of this court ( 162 Ga. 211) was not authority, since the question as to the sufficiency of the description and the validity of the deed had not been previously raised; and since, even if the former decision could have been res judicata or estoppel, there was no such pleading in the 1938 suit. Laurens County Board of Education v. Stanley, 187 Ga. 389, 390 (supra). In the same 1938 litigation, after the plaintiff trustees had made or attempted amendments of their petition on the return of the remittitur from this court, it was held by this court, that the trial court had properly dismissed the petition as thus sought to be amended, since, under the decision in 187 Ga. 389, the trust deed was absolutely void, and the plaintiffs showed no other title; that although the plaintiff trustees attempted by amendment to raise the question of res judicata or estoppel with regard to the 1925 judgment and decision, such a defense was not sufficiently pleaded; that the original 1926 decision would not be binding "against the present defendants, the County Board of Education and the Trustees of the School District," since those defendants were not parties to the original suit; and that, in such 1938 suit as amended, the plaintiff trustees were not entitled to an injunction against interference with the property, since "the plaintiffs, although in actual possession, are without any title or right of possession." Stanley v. Laurens County Board of Education, 188 Ga. 581 (supra).
In 1941 R. M. Stanley and N. P. Metts, as trustees of Centerville Schoolhouse, who were the same plaintiffs who brought the 1938 suit determined in 187 Ga. 389, and 188 Ga. 581, filed in the same court another petition against E. Burnsett Dominy individually, which they designated as a "motion to enforce a previous judgment rendered in said court." That judgment and the decision of this court thereon, which the plaintiff trustees now seek to enforce against Dominy individually without referring to the judgments and decisions in the 1938 litigation, are those rendered in the 1925 litigation, decided in Dominy v. Stanley, 162 Ga. 211, supra, in the suit then brought by the two present plaintiffs, not as trustees, but joined with others as patrons of the Centerville School; and not then brought against the present defendant individually, but against him and others as "pretended trustees of Centerville Schoolhouse," and then praying for an injunction against acts of trespass by the "pretended trustees" on the school property, and for appointment of trustees to carry out the trusts in the 1843 deed, as above described. The present petition alleged that Dominy and others acting through or under him were threatening to take dominion over the property and dismantle the schoolhouse. It was prayed, that he show cause why he had violated the original 1926 judgment and decision; that he be enjoined from interfering with the property; and that the court fill vacancies in the trusteeship by appointing three trustees to serve with the two plaintiffs. Dominy, among other pleadings, set up that he had purchased the property for valuable considerations, and holds title under warranty deeds made to him in 1940 by the Board of Trustees of Dudley Consolidated School District, created by an election in 1938, and the Laurens County Board of Education; that he is therefore the privy of such grantors, and is entitled to plead res judicata and estoppel against the plaintiff trustees; and that he enters such pleas by virtue of the judgments and decisions of the trial court in the 1938 litigation, decided in 187 Ga. 389, and 188 Ga. 581, in a suit by the same plaintiffs as trustees against the defendant's privies in title, the Dudley Consolidated School District and the County Board of Education. The defendant pleads and contends that the decisions in the 1938 litigation also related to an injunction against interference with the same property, and involved the same trust deed of 1843 and the same question of title or right in the plaintiff trustees under such deed; and that the plaintiffs in the present case are concluded by those adverse rulings.
At a hearing before the judge without a jury, the plaintiff trustees relied on the judgment and decision in the 1925 litigation; introduced testimony showing the history and uses of the property for school purposes; and sought to correct the alleged insufficient description in the 1843 deed by aliunde proof as to a survey and plat showing what they contended to be the school property. The defendant introduced his deeds from the grantors above stated; and introduced the pleadings, judgments, and decisions in the 1938 litigation in support of his plea of res judicata and estoppel. In July, 1942, the judge entered a decree, that, under the previous decisions of this court, "the plaintiff has no title or rights of possession that would enable him to maintain the present proceeding;" that "while the trial court is bound by the older of two unanimous conflicting decisions," such a rule would not apply to the original decision in 162 Ga. 211, and the later decisions in 187 Ga. 389 and 188 Ga. 581, since "the basic point in the last cases was not made in the first adjudication;" and that "under the authority of the last citations, the present plaintiff is estopped from maintaining his present position;" and "under the law and the evidence" the trial court found "against the plaintiff and generally for the defendant on the merits as applied to the pleadings." To these findings plaintiffs excepted on the general grounds that such findings were "error and contrary to law."