White v. Herndon

40 Ga. 493

• Court: Supreme Court of Georgia
• Decided: December 15, 1869
• Status: Published

Opinions

McCay, J.

Nothing-is better settled than that the judgment of a Court of competent jurisdiction is conclusive between the parties as to the matters at issue between them: 2 Phillip’s Evidence,

2. Nor does this rule confine the effect of the judgment to such matters as were in fact pleaded. It is the bounden duty .of parties to plead'every fact, pro and eon., that effects their respective rights, so far as the Court has jurisdiction to hear and determine the questions which such facts give rise to: 2 Phillips Ev., 2-26.

But if the Court have no jurisdiction over the rights growing out of the facts, as if the judgment be a judgment at law and there exist a state of things which, by the powers of the Court, it cannot have, and which are within the exclusive jurisdiction of a Court of Equity, then the judgment at law does not conclude the parties. They may, after the judgment is complete, go into equity, enjoin the judgment at law, and have the matter reheard by a Court of Equity in the light of the facts which create equitable rights: Pollock, Adm’r, etc., vs. Gilbert, 16th Ga., 398; White vs. Crew, 16th Ga., 416; Hollingshead vs. McKenzie, 8th Ga., 457.

So, too, if the defendant have a right — a legal right — of cross action, as set-off or recoupment, he may or he may not plead it in reply to the plaintiff’s claim. If he do in fact plead it, and the facts are investigated and enter as an element into the judgment of the Court, the right cannot be again set up: Seddon vs. Tutop, 6 T. R., 607. See also, 2 Phillips Ev., 113-15; Cowen & Hill’s Notes, volume 2, 154, 155. But unless this right of cross-action or-recoupment be set up, a judgment between the parties in another matter, does not conclude it: Cowen & Hill’s Notes; Phillip’s Ev., vol. 2, 154, 155.

A judgment is, then conclusive between the parties as to all matters which were, or by law must have been heard by the Court rendering the judgment. But equitable rights are not concluded by a judgment at law, unless they be in fact set up and adjudged. Nor are cross-actions concluded by a judgment in which they were not in fact considered. The Constitution of 1868 gives full force and effect to all judgments obtained under the previous látate organizations, except as therein provided: Art. 10, sec. 2. This provision of the Constitution is the paramount law, and binds the General Assembly as well as the Courts, and any Act of that body, the object and effect of which is to deny to such judgments full force and effect, is beyond the power vested by the Constitution in the Legislature. But this clause- can hardly mean that such judgments are to be enforced at all events. It was intended simply to cure certain supposed objections to judgments obtained between January, 1861, and the going into operation of the new government, and to transfer over to the new Courts both them and the judgments of the Courts of the State government, which went to wreck in the revolution. These judgment are declared to have full force as though there had been no interruption in the Courts. In other respects, they are still subject to attack by the Courts under the law, as they might have b9en when obtained. If there be equitable. reasons why they should not be paid, although they existed at the date of the judgment, or, if the defendant have a cross-action against the plaintiff, or if new rights have sprung up which were not and could not have been settled by the judgment^ we see no reason why the Legislature may not permit the defendant to have those rights settled by the machinery provided in the Act of 1868, and known as the Relief Act. If the defendant have an equitable defense to the cause of action, or if he have a cause of áction of an independent nature, it is surely within the power of the Legislature to permit him to set it off against the plaintiff’s judgment instead ofjEiling a bill or bringing a new suit. The Act only changes the form of the remedy — allows that to be done by motion which before was required to be by bill or by cross-action. It is nothing but saying that the claim of the defendant may be ascertained and set-off before the plaintiff is permitted to get his money. If the defendant has a real, substantial 'equity this is nothing but justice, and it seems absurd to say that it is unconstitutional. The Act makes no attempt to interfere with the judgment It recognizes it as conclusive that, in the matter sued and in issue, the rights of the parties are just as the judginent fixes them according to law. But it permits the defendant to set up new matter, to-wit: an equitable defense or a cross-action, and we.think it clearly within the power of the Legislature.

In these cases the defendant made his affidavit as the statute-requires. When the term arrived, they had a right to mako out their claims against the plaintiffs, and if they were good/ under the pleading, they had a right to have them submitted} to a jury. This the Court refused thereby dismissing their-affidavits, and in this we think the Court erred.

Judgment reversed.