Opinion
42699.
ARGUED APRIL 3, 1967.
DECIDED APRIL 14, 1967.
Action on contract. DeKalb Superior Court. Before Judge Hubert.
Sidney T. Schell, Paul A. Martin, Thomas H. Antonion, for appellants.
Mackay Elliott, Thomas W. Elliott, for appellee.
1. In this action for breach of contract, the court did not err in overruling the defendants' plea of res judicata alleging that said contract had been the basis of the present plaintiff's cross bill in a former bail trover (tort) action brought against him by one of the defendants, because, even if the misjoinder of claims was waived, the default judgment for the bail trover action plaintiff (the present defendant) did not adjudicate the issues attempted to be raised by the cross bill.
2. The overruling of the general demurrer to Count 2 of the petition, unappealed from, became the law of the case.
3. The cross complaint, or answer, of the defendants, setting up damages for a tort, was properly stricken on motion.
4. The judgment for the plaintiff against Paul A. Martin is affirmed.
ARGUED APRIL 3, 1967 — DECIDED APRIL 14, 1967.
Jack B. Phelps brought an action for damages in two counts against Paul A. Martin and Mary L. Martin. Count 1 was based on the alleged breach of an express contract for accounting services rendered to the defendants and other named persons. Count 2 was based on quantum meruit, alleging the performance of said services, and also sought to enjoin the prosecution in the Civil and Criminal Court of DeKalb County of a pending bail trover action brought against him by defendant Paul Martin to recover books and records of Martin's which were used by Phelps in the performance of the aforesaid accounting services. The defendants subsequently filed a plea of res judicata, in which they alleged that said bail trover action, to which Phelps had filed a cross action for damages for the aforesaid accounting services rendered to the Martins, had been terminated by a default judgment for Paul Martin for the subject property. Upon motion of counsel, the court denied the defendants' plea of res judicata. Defendant Paul Martin then filed an "amended answer and cross complaint," seeking punitive damages on account of the plaintiff's alleged fraud, vindictiveness, misrepresentations, malpractice and concealment, and denying any indebtedness to the plaintiff. The court then made the following rulings: denied defendants' oral motion to dismiss against defendant Mary Martin; granted defendant Mary Martin's motion for nonsuit; denied defendants' oral motion to strike Ground (Count) 2 of the petition; denied defendants' oral motion to dismiss the petition on the ground of res judicata; and dismissed defendant Paul Martin's cross complaint upon plaintiff's motion. The case was tried before a jury, resulting in a verdict and judgment of $1,800 in favor of the plaintiff against defendant Paul Martin. In addition to the final judgment, defendants appeal from the judgments denying their plea of res judicata, denying their oral motion to strike Count 2 of the petition, dismissing defendant Paul Martin's cross complaint, and from the verdict.
1. "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." (Emphasis supplied.) Code § 110-501.
"[W]ith the one exception contained in the Code, § 107-102, which is not here applicable, no counterclaim is permitted to be urged in an action of trover, in the absence of exceptional circumstances sufficient to give rise to equitable relief." Powers v. Wren, 198 Ga. 316, 319 (1) ( 31 S.E.2d 713) and cit.; Wilkes v. Sheppard, 104 Ga. App. 710, 712 (2) ( 122 S.E.2d 534). The appellee's cross bill, based upon contract, was not properly filed in the appellant's bail trover action, sounding in tort; therefore, the matters contained in the cross bill could not have been put in issue in that cause "under the rules of law." Code §§ 3-113, 110-501; McArthur v. Wilson, 13 Ga. App. 502 ( 79 S.E. 374); Hecht v. Snook Austin Furniture Co., 114 Ga. 921 ( 41 S.E. 74).
The impermissible filing of appellee's cross claim could have been waived by the appellant and there is nothing in the record to show that the improper joinder was not waived. The plea of res judicata did not set forth fully all of the proceedings in the alleged former adjudication which is pleaded in bar of the action, as it must do. Scarborough v. Edgar, 176 Ga. 574 (3), 581 ( 168 S.E. 592). Even if there was a waiver, however, the default judgment in the former case, as set forth in the plea, did not adjudicate the issues attempted to be raised by the cross bill, but merely awarded judgment to the appellant for possession of the property which was the subject of the bail trover proceeding. Since the judgment in the former case could have been reached without the points made by the cross bill in issue, the judgment was not conclusive as to those points. Henderson v. Fox, 80 Ga. 479 ( 6 S.E. 164).
The effect of the default judgment, then, was tantamount to a dismissal of the cross bill for want of prosecution without an adjudication on its merits. Accordingly, the superior court did not err in its judgment denying appellants' plea of res judicata.
2. Similarly, the court did not err in its judgment denying the oral motion to strike Count 2 of the petition, whether such motion was based upon res judicata, which we have held to be without merit in Division 1, hereinabove, or upon a failure to state a cause of action. The judgment in question indicates that a ruling adverse to appellants had already been made on their general demurrer (excluded from the record by their notice of appeal), which ruling became the law of the case upon their apparent failure to renew the demurrer after the petition was amended. See Jordan v. J. C. Penney Co., 114 Ga. App. 822, 823 (1) ( 152 S.E.2d 786), and cit.
3. The court did not err in its judgment dismissing the appellant's answer and cross complaint for the same reason that appellee's cross bill was not permissible, viz., it sounded in tort, whereas the petition was based upon a contract.
4. Since the above antecedent judgments appealed from were all correct, the verdict for the plaintiff is assumed to be authorized, in the absence of a transcript of the evidence or any enumeration of error with regard to the sufficiency of the evidence; therefore, the court did not err in rendering final judgment for the plaintiff against defendant Paul A. Martin on the verdict.
Judgment affirmed. Hall and Eberhardt, JJ., concur.