Beard v. Beard

Supreme Court of Georgia

Beard v. Beard

22 S.E.2d 39, 194 Ga. 560, 1942 Ga. LEXIS 597

CourtSupreme Court of Georgia

DecidedSeptember 21, 1942

Docket14245.

StatusPublished

Cited by1 cases

This text of 22 S.E.2d 39 (Beard v. Beard) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beard v. Beard, 22 S.E.2d 39, 194 Ga. 560, 1942 Ga. LEXIS 597 (Ga. 1942).

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Opinion

Jenkins, Justice.

Under the decision in City of Tallapoosa v. Brock, 143 Ga. 599 (85 S. E. 755), a direct bill of exceptions will not lie to a judgment overruling a plea.of reg judicata to the suit. In English v. Rosenkrantz, 150 Ga. 745, 746 (105 S. E. 292), it was held that a judgment sustaining a plea of res judicata to a suit, although generally controlling, is not final within the meaning of the Code (citing W. & A. R. Co. v. Williams, 146 Ga. 27, 90 S. E. 478, and Brock v. Tallapoosa, 19 Ga. App. 793, 92 S. E. 289). This ruling was applied, two Justices dissenting, in Peerless Laundry Co. v. Abraham, 193 Ga. 179 (17 S. E. 2d, 267), where error was assigned on the refusal of a new trial after a jury by their finding had sustained a plea of res judicata. In the instant ease it appears that the plaintiffs sought relief on grounds other than and in addition to their attack on the validity of the deeds made by the intestate in his lifetime, against which ground only the plea in abatement was directed. It further appears that there has never been any general judgment in favor of the defendants or any of them, or any judgment that the plaintiffs’ entire case be dismissed, such as was taken in the Peerless case, as referred to in both the majority and the dissenting opinions. Accordingly, under any possible view, the instant case remains pending on all the issues and prayers save those relating to the plea in abatement; which being true, the writ of error is premature and must be

Dismissed.

All the Justices concur.

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Jenkins, Justice.

Under the decision in City of Tallapoosa v. Brock, 143 Ga. 599 (85 S. E. 755), a direct bill of exceptions will not lie to a judgment overruling a plea.of reg judicata to the suit. In English v. Rosenkrantz, 150 Ga. 745, 746 (105 S. E. 292), it was held that a judgment sustaining a plea of res judicata to a suit, although generally controlling, is not final within the meaning of the Code (citing W. & A. R. Co. v. Williams, 146 Ga. 27, 90 S. E. 478, and Brock v. Tallapoosa, 19 Ga. App. 793, 92 S. E. 289). This ruling was applied, two Justices dissenting, in Peerless Laundry Co. v. Abraham, 193 Ga. 179 (17 S. E. 2d, 267), where error was assigned on the refusal of a new trial after a jury by their finding had sustained a plea of res judicata. In the instant ease it appears that the plaintiffs sought relief on grounds other than and in addition to their attack on the validity of the deeds made by the intestate in his lifetime, against which ground only the plea in abatement was directed. It further appears that there has never been any general judgment in favor of the defendants or any of them, or any judgment that the plaintiffs’ entire case be dismissed, such as was taken in the Peerless case, as referred to in both the majority and the dissenting opinions. Accordingly, under any possible view, the instant case remains pending on all the issues and prayers save those relating to the plea in abatement; which being true, the writ of error is premature and must be

Dismissed.

All the Justices concur.

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Bluebook (online)

22 S.E.2d 39, 194 Ga. 560, 1942 Ga. LEXIS 597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beard-v-beard-ga-1942.

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