Morgan v. Hemphill

110 S.E.2d 780, 100 Ga. App. 229, 1959 Ga. App. LEXIS 581

• Court: Court of Appeals of Georgia
• Decided: September 24, 1959
• Docket: 37750
• Status: Published

Opinions

Quillian, Judge.

Where a party asserts a right of recovery on the theory that he has fully performed a contract of employment and thereby accomplished the results that under the terms of the agreement entitled him to the compensation therein stipulated, and the petition is dismissed on a general demurrer because the facts alleged do not show that he accomplished the results on which his right of compensation depends, he can not be permitted to recover in a subsequent action brought on the theory that his failure to procure such results was prevented by the defendant’s fault. To such a situation may be applied the words of Chief Justice Bleclcley’s famous opinion, Perry v. McLendon, 62 Ga. 598, 604: “The effect of a judgment cannot be avoided by a difference in the pleadings, when those in the first case could and should have been as full as those in the second, though in fact they were not. No party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. It is the body of a case and not certain of its limbs only, that the final judgment takes hold upon. . . . He must discharge all of his weapons, and not reserve a part of them for use in a future rencounter. He must realize that one defeat will not only terminate the campaign, but end the war.”

Decided September 24, 1959. L. L. Russo, J. Walter LeCraw, for plaintiff in error. David Gershon, R. Monroe Schwartz, contra.

Other cases of our appellate courts supporting the view expressed here and pronounced in Perry v. McLendon, 62 Ga. 598, supra, with the lucid brilliance of the great sage of Rabun are Wolfe v. Georgia Ry. &c. Co., 6 Ga. App. 410 (65 S. E. 62); Woods v. Travelers Ins. Co., 53 Ga. App. 429 (1) (186 S. E. 467). In the Woods case it is said: “Under the doctrine of res judicata, whenever there has been a judgment by a court of competent jurisdiction -in a former litigation between the same parties, based upon the same cause of action as a pending litigation, the litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation.” If the rule were otherwise, a party might undertake to recover on the same transaction on a dozen different theories, in an equal number of cases, to the end that litigation would become extended indefinitely, and no cause arising out of a contract of employment could be finally adjudicated. The trial judge did not err in sustaining the plea of res judicata, and his judgment must accordingly be affirmed.

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Felton, C. J., dissents.