We say this, notwithstanding the dictum quoted with approval in Orr v. Cooledge, 117 Ga. 195, 206 ( 43 S.E. 527), that "A declaration is duplicitous when it contains in the same count more than one fact, or set of facts, for the recovery of a single demand, any one of which would justify the recovery." This dictum was quoted from the Orr case in Phillips v. Hightower, 190 Ga. 785, 789, 790 ( 10 S.E.2d 854); but in the Phillips case this court went on to say, and we think correctly, that such a rule "should not be taken to mean that the mere diversity of facts set up in a count will render it double when all the facts taken together tend to the statement of one point or ground of recovery." In the Phillips case, the court held that, if the security deed had been void for a number of reasons, it would not have rendered the petition duplicitous to state all of these reasons in the same count. Citing as authority: Chamblee v. Atlanta Brewing Ice Co., 131 Ga. 554, 563 ( 62 S.E. 1032); Echols v. Green, 140 Ga. 678 (4) ( 79 S.E. 557); Bridges v. Donalson, 165 Ga. 228 ( 140 S.E. 497); Smith v. McWhorter, 173 Ga. 255 (3) ( 160 S.E. 250). It will be noted, however, that in the Phillips case the court was particular to state that: "It is not insisted that the petition is duplicitous in the sense that it attempts to assert inconsistent theories for recovery of the relief sought,
A plea of res adjudicata, as against a general demurrer, is sufficient where it alleges that the same issues have been actually litigated and determined in a prior action between the same parties or their privies. Phillips v. Hightower, 190 Ga. 785 (2) ( 10 S.E.2d 854); Carten v. Loveless, 192 Ga. 715 ( 16 S.E.2d 711). Such plea, being in the nature of a plea in bar and not a dilatory plea, need not be filed at the first term or on the appearance day of the case ( Hill v. Cox, 151 Ga. 599, 107 S.E. 850); and the fact that the plea was set up by way of amendment to an answer and not by a separate and independent pleading does not render it subject to objection.
The petition in this case is not subject to demurrer on the ground of duplicity. "Duplicity in pleading on the part of a plaintiff consists, not in asserting a right to and praying for relief inappropriate to the cause of action set forth in his petition, but in making therein equivocal statements with a view to getting the benefit of two or more inconsistent theories as to his right to recover, or in basing his complaint upon different versions with respect to the facts which gave rise thereto." Orr v. Cooledge, 117 Ga. 195 (3) ( 43 S.E. 527); Smith v. McWhorter, 173 Ga. 255 (3) ( 160 S.E. 250); Phillips v. Hightower, 190 Ga. 785 (1) ( 10 S.E.2d 854); Allen v. Allen, 196 Ga. 736 (4), 745 ( 27 S.E.2d 679). The petition in the present case was based upon a consistent statement of a single set of facts. The point in issue is the ownership of the Harris home place.
This may be shown by aliunde proof. It was sufficient as a plea that it aver the fact that such issue had been actually litigated and determined. See Sumner v. Sumner, 186 Ga. 390 ( 197 S.E. 833), and cit. Phillips v. Hightower, 190 Ga. 785 ( 10 S.E.2d 854). Previous litigation between these same parties has heretofore been before this court and the Court of Appeals. McCollum v. Loveless, 185 Ga. 748 ( 196 S.E. 430); McCollum v. Loveless, 187 Ga. 262 ( 200 S.E. 115); Loveless v. Carten, 64 Ga. App. 54 ( 12 S.E.2d 175). It is by counsel for defendant in error urged, as a reason why the plea was properly stricken, that in one of the cases which came to this court the trial judge expressly eliminated the issue here involved, by the entering of an order containing this language: "Wherefore it is adjudged by the court that defendant's rights and title in said note are not dealt with in this proceeding, but are eliminated from same without an adjudication with reference thereto. . . The pleadings in the present case do not present the matter in proper form for an adjudication, . . and the matter is left open for an adjudication hereafter, if proceedings to that end should be instituted."
See Smith v. Word, 115 Ga. App. 265 (4), 269 ( 154 S.E.2d 646). Here the plaintiff admits the former litigation between the parties which estops him from proceeding here to seek the return of funds paid by him under a decree of court, valid until vacated and set aside. See Phillips v. Hightower, 190 Ga. 785, 792 ( 10 S.E.2d 854). Thus, he has no valid complaint to recover same.
Under that branch of the doctrine the former adjudication is a bar if the same issues were litigated by the parties or their privies in the previous action, though it is not essential that it be upon the same cause of action. Hunter v. Davis, 19 Ga. 413; Bradley v. Johnson, 49 Ga. 412; Henderson v. Fox, 80 Ga. 479 ( 6 S.E. 164); Worth v. Carmichael, 114 Ga. 699 ( 40 S.E. 797); Draper v. Medlock, 122 Ga. 234 ( 50 S.E. 113, 69 LRA 483, 2 AC 650); Goodwin v. Bowen, 184 Ga. 408 ( 191 S.E. 691); Sumner v. Sumner, 186 Ga. 390 ( 197 S.E. 833); Phillips v. Hightower, 190 Ga. 785 ( 10 S.E.2d 854); Gunnin v. Carlile, 195 Ga. 861 ( 25 S.E.2d 652); Spence v. Erwin, 200 Ga. 672 ( 38 S.E.2d 394); Price v. Price, 205 Ga. 623 ( 54 S.E.2d 578); Capps v. Toccoa Falls Light c. Co., 46 Ga. App. 268 ( 167 S.E. 530); Morris v. Ga. Power Co., 65 Ga. App. 180 ( 15 S.E.2d 730). 2.
While different facts are charged here, they both relate to negligence and the recovery of the damages claimed is based upon negligence. In Phillips v. Hightower, 190 Ga. 785, 789 (1) ( 10 S.E.2d 854), the Supreme Court, after quoting definitions of duplicity, stated, "they should not be taken to mean that the mere diversity of facts set up in a count will render it double when all the facts taken together tend to the statement of one point or ground of recovery." The subparagraphs are clearly not multifarious, since the charges each makes relate only to the defendant King, and to none of the other defendants. Multifariousness arises where a petition embraces two or more distinct subjects — several distinct and separate matters relating to individuals with whom the objecting defendant has no connection or concern. City Bank of Macon v. Bartlett, 71 Ga. 797.
The burden was on the defendant to show that the question of rent was necessarily or actually determined in the possessory-warrant case. The evidence did not conclusively and with certainty show this. Phillips v. Hightower, 190 Ga. 785, 790 ( 10 S.E.2d 854); Johnson v. Lovelace, 61 Ga. 62; Hardin v. Douglas, 168 Ga. 213 ( 117 S.E. 506). "A judgment rendered in litigation between the same parties is not conclusive in a subsequent suit between them on a different cause of action, except as to issues actually made and determined in the former litigation." Worth v. Carmichael, 114 Ga. 699 ( 40 S.E. 797); Draper v. Medlock, 122 Ga. 234 ( 50 S.E. 113, 69 L.R.A. 483, 2 Ann. Cas. 650).
3. There was no substantial merit in the motion to dismiss the exceptions. 4. The ruling of this court on the former appearance of this case ( Phillips v. Hightower, 190 Ga. 785, 10 S.E.2d 854), that "The jury could not have rendered a verdict for the plaintiff without passing upon the question of payment," was not obiter dictum as related to estoppel by judgment pleaded by the plaintiff, and as then being considered by this court on demurrer; but such ruling constituted a construction of the petition as amended, and became the law of the case. City Council of Augusta v. Thomas, 159 Ga. 435, 445 ( 126 S.E. 144); WillinghamStone Co. v. Whitestone Marble Co., 36 Ga. App. 230 (2) ( 136 S.E. 180); 15 C. J. 952; 21 C. J. S. 314; 14 Am. Jur. 298.