Newsome v. Smith

Court of Appeals of Georgia

Newsome v. Smith

102 S.E. 841, 25 Ga. App. 148, 1920 Ga. App. LEXIS 652

CourtCourt of Appeals of Georgia

DecidedApril 8, 1920

Docket11260

StatusPublished

Cited by5 cases

This text of 102 S.E. 841 (Newsome v. Smith) 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

Newsome v. Smith, 102 S.E. 841, 25 Ga. App. 148, 1920 Ga. App. LEXIS 652 (Ga. Ct. App. 1920).

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Opinion

Smith, J.

1. The record in this case discloses that the plea designated a plea in abatement is in reality a plea of res judicata, and the judgment of the lower court sustaining the plea is a final disposition of the case. The motion to dismiss the writ of error on the ground that it was premature is therefore without merit, and must be denied.

2. A plea by the defendant that the matters set up by the plaintiff in the present suit could have been pleaded as a set-off to a former suit, brought by the defendant against the plaintiff, on an account, in the same court, is not, without more, a good plea of res judicata. While the plaintiff in the present suit could have pleaded a set-off, he was not, under the law, compelled to do so, unless the claim or claims upon which the present suit was brought and the matters adjudicated in the other suit grew out of the same transaction. See Johnson v. Reeves, 112 Ga. 690, 691, (37 S. E. 980) ; Ray v. Fleetwood, 106 Ga. 253, 257 (32 S. E. 156).

3. There was no evidence to authorize the judgment sustaining the plea of res judicata.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

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Smith, J.

1. The record in this case discloses that the plea designated a plea in abatement is in reality a plea of res judicata, and the judgment of the lower court sustaining the plea is a final disposition of the case. The motion to dismiss the writ of error on the ground that it was premature is therefore without merit, and must be denied.

2. A plea by the defendant that the matters set up by the plaintiff in the present suit could have been pleaded as a set-off to a former suit, brought by the defendant against the plaintiff, on an account, in the same court, is not, without more, a good plea of res judicata. While the plaintiff in the present suit could have pleaded a set-off, he was not, under the law, compelled to do so, unless the claim or claims upon which the present suit was brought and the matters adjudicated in the other suit grew out of the same transaction. See Johnson v. Reeves, 112 Ga. 690, 691, (37 S. E. 980) ; Ray v. Fleetwood, 106 Ga. 253, 257 (32 S. E. 156).

3. There was no evidence to authorize the judgment sustaining the plea of res judicata.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

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Bluebook (online)

102 S.E. 841, 25 Ga. App. 148, 1920 Ga. App. LEXIS 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newsome-v-smith-gactapp-1920.

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