Opinion
18728.
ARGUED SEPTEMBER 15, 1954.
DECIDED OCTOBER 13, 1954.
Cancellation. Before Judge Carpenter. Wilkinson Superior Court. June 19, 1954.
Victor Davidson, Lester F. Watson, for plaintiffs in error.
Alex S. Boone, Jr., Nelson Nelson, contra.
Where the merits of plaintiffs' case have been passed upon by a judgment sustaining a general demurrer and dismissing the action, a subsequent suit between the same parties, based on the same cause of action, seeking cancellation of the same deed, is barred under the doctrine of res judicata.
ARGUED SEPTEMBER 15, 1954 — DECIDED OCTOBER 13, 1954.
Mrs. Mamie Lou Dixon Townsend and W. M. Dixon filed in Wilkinson Superior Court, against T. A. Dixon, a petition seeking cancellation of a quitclaim deed. A demurrer on general and special grounds was interposed by the defendant. The trial court rendered the following opinion:
"Upon consideration of the defendant's demurrers to the petition, it is ordered: 1. The petition is in one count and is in the alternative, in that the petition alleges, as the basis of the relief sought, that `The alleged quitclaim deed is either a forgery, or defendant by some means unknown to petitioners has obtained their signatures to same by the use of fraud and deceit.' As against general demurrer the allegations of the petition to the effect that the deed sought to be cancelled is a forgery, are sufficient; but as to fraud and deceit, the allegations are insufficient. `Where any one of several averments alleged in the alternative is insufficient, the entire pleading is rendered bad. In other words, where two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is treated as pleading no more than the latter, because it must be construed most strongly against the pleader. . . In such case the defect may be reached by a general demurrer; whereas, if both alternatives are good in substance, the petition might be subject to special demurrer for duplicity, but would not be subject to general demurrer . . .' Doyal v. Russell, 183 Ga. 518, 534. See also Groover v. Savannah Bank Trust Co., 186 Ga. 476; Saliba v. Saliba, 201 Ga. 577 (2). 2. `General allegations of fraud, deceit, and undue influence are insufficient to raise any issue; and they are never sufficiently pleaded except by a statement of the facts upon which they are based. If fraud is relied on to vitiate a transaction, the particular facts constituting the fraud must be alleged.' Jones v. Robinson, 172 Ga. 746 (3c). See also, Kilgo v. Castleberry, 38 Ga. 512, 514 (3); Tolbert v. Caledonian Ins. Co., 101 Ga. 741, 746; Miller v. Butler, 121 Ga. 758 (4); Anderson v. Goodwin, 125 Ga. 663 (8); Field v. Brantley, 139 Ga. 437, 441; Lathrop v. Miller, 164 Ga. 167; Hickman v. Cornwell, 145 Ga. 468 (4); Whitfield v. Whitfield, 204 Ga. 64; Robertson v. Panlos, 208 Ga. 116. 3. Accordingly, the defendant's general demurrer is sustained, and the petition is dismissed."
There was no exception to the above judgment, and so far as appears from the record the petitioners did not offer to amend. However, nine days after rendition of the judgment, the same persons filed a second petition, seeking cancellation of the quitclaim deed against the same defendant, which was similar in all respects except it alleged only as a basis for the relief sought that the quitclaim deed was a forgery. The defendant filed a plea of res judicata, which was demurred to by the petitioners on the ground that the judgment sustaining the defendant's general demurrer and dismissing the first action showed on its face that it was only a technical judgment, and that the court did not pass on the merits of the case. The trial court overruled the demurrer to the plea of res judicata, to which judgment the petitioners excepted.
On the separate trial of the plea of res judicata, the defendant introduced in evidence all of the material parts of the record in the former suit, after which the trial court directed a verdict for the defendant on his plea of res judicata. The petitioners' motion for new trial on the general grounds was denied, and they excepted.
The opinion rendered by the trial court in considering general and special demurrers stated in effect that the prior petition, which was in one count, was in the alternative, in that it alleged the deed sought to be canceled was either a forgery, or the signatures of petitioners thereto were obtained by fraud and deceit, and that as against general demurrer the allegations as to forgery were sufficient, but the allegations as to fraud and deceit were insufficient. The opinion concluded with the announcement: "Accordingly, the defendant's general demurrer is sustained, and the petition is dismissed." Counsel for the petitioners insist that the above judgment was a purely technical decision, and that the merits of the case were not passed upon.
If in rendering its judgment upon a demurrer to a petition the court does not decide upon the merits of the case, a judgment sustaining a demurrer and dismissing the petition is not a bar to another proceeding for the same cause. Code § 110-503; National Bank of Augusta v. Southern Porcelain Mfg. Co., 59 Ga. 157, 164; Papworth v. Fitzgerald, 111 Ga. 54 ( 36 S.E. 311); Dolvin v. American Harrow Co., 125 Ga. 699 ( 54 S.E. 706, 28 L.R.A. (NS) 785); Story v. Pope, 205 Ga. 523 ( 54 S.E.2d 394). However, if in rendering the judgment on the demurrer to the previous petition the court decides upon the merits of the case, the judgment operates as res judicata to a second petition based on the same cause of action. Code § 110-504; Kimbro v. Virginia R. Co., 56 Ga. 185; Revels v. Kilgo, 157 Ga. 39 (b) ( 121 S.E. 209); Smith v. Bird, 189 Ga. 105 ( 5 S.E.2d 336); Darling Stores Corp. v. Beatus, 199 Ga. 215 (1) ( 33 S.E.2d 701).
Where, as here, the petition in one count alleged that the deed sought to be canceled was either a forgery or that the signatures thereto were obtained by fraud and deceit, and as against general demurrer the allegations as to forgery, if standing alone would have been sufficient, but the allegations as to fraud and deceit were insufficient, and the trial judge correctly held that, where any one of several averments alleged in the alternative is insufficient, the entire pleading is rendered bad, or in other words, where two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is treated as pleading no more than the latter, because it must be construed most strongly against the pleader, and dismissed the action, his ruling was a judgment on the merits of the case; and a second proceeding filed by the same petitioners against the same defendant upon the same cause of action seeking cancellation of the same deed was subject to the plea of res judicata.
Accordingly, the trial court did not err in sustaining the defendant's plea of res judicata to the second proceeding, and upon the separate trial of the plea which disclosed the facts to be as above indicated, in directing a verdict for the defendant.
Judgment affirmed. All the Justices concur.