Echols v. Roberts & Longino

Court of Appeals of Georgia

Echols v. Roberts & Longino

96 S.E. 7, 22 Ga. App. 388, 1918 Ga. App. LEXIS 354

CourtCourt of Appeals of Georgia

DecidedMay 17, 1918

Docket9138

StatusPublished

Cited by3 cases

This text of 96 S.E. 7 (Echols v. Roberts & Longino) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Echols v. Roberts & Longino, 96 S.E. 7, 22 Ga. App. 388, 1918 Ga. App. LEXIS 354 (Ga. Ct. App. 1918).

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Opinion

Jenkins, J.

1. Where a demurrer is sustained, an assignment of error stating that “to the order sustaining said demurrer and striking said answer, the defendant [naming her] then and there excepted, now excepts, and assigns the same as error” is sufficiently definite, where the demurrer itself appears in the record. Toomey v. Read, 133 Ga. 855 (67 S. E. 100); McGregor v. Third National Bank, 124 Ga. 557 (53 S. E. 93); Walker V. Crummey, 18 Ga. App. 414 (89 S. E. 539); Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892, 893). The motion to dismiss the hill of exceptions is therefore overruled.

2. Where the defendant is served, and appears and pleads in the original suit, she can not in any case or under any circumstances inquire into the merits of the original judgment, on a writ to revive the judgment. On the general principle of res adjudicata, the defendant is absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and which might have been' presented in the former proceeding. Weaver v. Webb, 3 Ga. App. 726 (60 S. E. 367). The court therefore did hot err in sustaining the demurrer and striking the defendant’s answer.

Judgment affirmed.

Wade, O. J., and LuJÉe, J., concur.

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Jenkins, J.

1. Where a demurrer is sustained, an assignment of error stating that “to the order sustaining said demurrer and striking said answer, the defendant [naming her] then and there excepted, now excepts, and assigns the same as error” is sufficiently definite, where the demurrer itself appears in the record. Toomey v. Read, 133 Ga. 855 (67 S. E. 100); McGregor v. Third National Bank, 124 Ga. 557 (53 S. E. 93); Walker V. Crummey, 18 Ga. App. 414 (89 S. E. 539); Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892, 893). The motion to dismiss the hill of exceptions is therefore overruled.

2. Where the defendant is served, and appears and pleads in the original suit, she can not in any case or under any circumstances inquire into the merits of the original judgment, on a writ to revive the judgment. On the general principle of res adjudicata, the defendant is absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and which might have been' presented in the former proceeding. Weaver v. Webb, 3 Ga. App. 726 (60 S. E. 367). The court therefore did hot err in sustaining the demurrer and striking the defendant’s answer.

Judgment affirmed.

Wade, O. J., and LuJÉe, J., concur.

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96 S.E. 7, 22 Ga. App. 388, 1918 Ga. App. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/echols-v-roberts-longino-gactapp-1918.

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