Ash v. Gibson , 155 Ga. 115 ( 1923 )

Beck, P. J.

(After stating the foregoing facts.) The judgment of the court refusing to allow the amendment was not erroneous. The verdict and judgment in the illegality case are urged as res adjudicata against the case of the plaintiffs as made in the present suit in its entirety. There is no attempt in the rejected amendment to set up the plea of res adjudicata merely upon the question of payment to the bank; but it goes to the entire case as máde by the petition and the prayers of the petition, as is shown in the statement of facts; not merely that the fi. fa. be surrendered and canceled and the judgment upon which it was issued be declared settled, etc., but there is an alternative prayer, based on the equitable ground “that if on the final hearing of this case the said bank should be allowed to proceed with said fi. fa., that petitioner for himself and his cosecurities in that event have judgment against the said S. W. Ash for the amount originally due of said judgment, with interest and costs.” This last prayer, and the facts alleged upon which it is based, introduced an equitable ground of recovery against Ash, which was not involved in the issues made by the illegality. For it appears from an examination of the fi. fa., to which the illegality was interposed, that it was proceeding by a levy upon the property of Gibson, and Gibson alone filed the affidavit of illegality. The execution itself was in favor of the Farmers & Merchants Bank and against W. A. Jackson, W. T. Potts, S. W. Ash, John Turner, and E. K. Gibson. Gibson, who filed the affidavit of illegality, set up the single fact that certain property had been sold under a levy made by virtue of a fi. fa. in favor of Ash against Jackson, that under an agreement between Jackson, Ash, and the bank the proceeds of the sale of that land should have been applied to this indebtedness, and that- the proceeds exceeded the amount of the indebtedness due on this fi. fa. and were sufficient to cancel all the indebtedness of the bank. The verdict upon the issue thus made was adverse to Gibson and in favor of the bank. Gibson and the bank alone were parties to the issue made by the illegality. In the present case Ash is a defendant, and equitable relief is prayed against him. The parties are not the same, or, if they are substantially the same, the issue is not the same except in part. The prayer for recovery over against Ash was sufficient to make the issues different. “ A judgment in one suit is not a bar to another suit, if the parties in the two suits are not the same, or if, although the parties in the two suits are the same, they sue, or are sued, in one suit, in a right different from the right in which they sue, or are sued, in the other.” Brooking v. Dearmond, 27 Ga. 58 (4); Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446 (58 S. E. 93).

It appears from what is said above that the court below did not err in refusing to allow "the amendment.

Judgment affirmed.

All the Justices concur.