Smith v. Hornsby , 70 Ga. 552 ( 1883 )

Hall, Justice.

1. The defendants in this bill had a right to withdraw their demurrer before the court had pronounced and entered his final decree thereon; an intimation or declaration of the judge that he would overrule the demurrer would not debar the right of withdrawal. Code, §3447 and citations. To deny this right would deprive the party of the privilege of amending his pleadings, which he might do as matter of right at any stage of the cause and in all respects, either in matter of form or of substance. Code, §§3479, 4177.

2. It was the duty of the court to dispose of the plea before proceeding with the trial on the answer. Code, §4191.

3. There had been a former suit in this case, embracing the same subject-matter as the present bill, and between the same parties. To this suit a demurrer was filed upon the ground, among others, that there was no equity in the bill entitling complainant to the relief prayed,’ which demurrer was sustained by the court and a final decree thereon taken, dismissing the bill upon the ground “ that, under the allegation of facts therein contained, the complainant was not entitled to the relief prayed, or any other relief.” This decree was,,brought by writ of error to this court, and the judgment of the court below was in all respects affirmed. 58 Ga., 529.

To the present suit this judgment upon demurrer was pleaded in bar of recovery, and the plea was sustained by the court; to reverse which decision the present writ of error is prosecuted.

Every point raised by the plaintiff in error is fully disposed of by the decision above cited, except the single point, that the bill now in hand properly pleads facts which were defectively stated in former bills. There is no allegation, however, that the complainant was ignorant of these facts when the case was formerly before the court, or that he was prevented from availing himself of them by accident or mistake, or the fraud or act of the adverse party, unmixed with negligence on his part. Code, §§3129, 3595. It is, on the contrary, quite apparent, from the record, that he was well apprised of all the facts now relied on to avoid the force of this decree, before the filing of the bill on which it was rendered, and that he was not prevented by accident, mistake, fraud, or the act of his adversaries, from insisting upon them. The point here raised has been frequently passed upon by this court, and it has been held invariably that there is no relief from a judgment, even in a court of equity, that could have been prevented but for the negligence of the party. 22 Ga., 60; 23 Ib., 366; 32 Ib., 362; 42 Ib., 412. In a recent case involving personal liberty (62 Ga., 598), this court held, that the matter would be deemed res adjudicata as to all points which were necessarily involved in the general question of the legality or illegality of the arrest and detention, whether all of them were accurately presented or not; that it was sufficient if they might and ought to have been presented in the exercise of due diligence. Bleckley, J., delivering the opinion in this case, said (page 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 a former judgment. It is the body of a case, and not certain of its limbs only, that the final judgment takes hold upon. Whoever bring the legality of an imprisonment into question by writ of habeas corpus, should, in the first ir stance, show as much cause for his attack as he can. He must discharge all his weapons, and not reserve a part of them for use iu a future rencounter. He must realize that one defeat will not only terminate the campaign, but end the war.” See also 63 Ga., 491, 494, 627.

Judgment affirmed.