Gunnin v. Carlile , 195 Ga. 861 ( 1943 )

1. Where a judgment is claimed as an estoppel, the burden is upon the party relying thereon to show that the particular matter in controversy was necessarily or actually determined in his favor in the former litigation; and if it appears from the record introduced in support of such claim that several issues were involved in the previous litigation, and the verdict and judgment therein do not clearly show that the particular issue was then decided, before such claim can be sustained the uncertainty must be removed by extrinsic evidence showing that the issue was then decided in favor of the party relying upon such adjudication or estoppel.

2. Under the foregoing principle as applied to the instant suit to enjoin the defendant from trespassing upon a described tract of land to which the plaintiff claimed title, the evidence did not demand a finding for the plaintiff on the theory that the issue as to title had been determined in her favor in former litigation, nor was a verdict for her otherwise demanded by the evidence. The court erred in directing the verdict for the plaintiff.

No. 14517. MAY 7, 1943. This case involves a dispute regarding a land line, and a further contention by the plaintiff that the same controversy was adjudicated in her favor in a former suit between the parties.

In June, 1942, Mrs. R. C. Carlile filed the present suit against J. M. Gunnin, to enjoin him from trespassing upon a described tract of land to which she claimed title, and from otherwise interfering with her use and occupancy of the same as owner. The plaintiff made in her petition substantially the following case: She is the owner of lot of land No. 561 in the 16th district of Cobb County, and has been in the quiet and legal possession of the same under a deed for more than seven years. When her husband, under whom she claims, bought said property, where was an old road leading across the northern part of said lot, and he purchased all of said property up to the said roadway. This road was the recognized north line of said lot, and it was the agreed line between this lot and lot No. 520 adjoining it on the north, the last-mentioned lot being claimed by the defendant. The plaintiff's husband had possession up to this line from the time of his purchase more than thirty years ago, until his death, and after his death the plaintiff continued in the uninterrupted use and enjoyment of said property until December 9, 1931.

The plaintiff further alleged that on the last-mentioned date the defendant Gunnin filed a suit against her, contending that the original line dividing the two lots was some distance south of the old road, and trying by said suit to take possession of a strip south of said road; that this suit resulted in favor of this plaintiff, defendant in the former case; and that she has continued in possession until the present time.

The defendant filed an answer in which he put in issue the material allegations of the petition, and alleged title in himself to the disputed tract, by adverse possession under color of title for more than forty years. He further alleged in effect that even since the former verdict and judgment he has continued in uninterrupted possession until he was restrained from "going upon said land" by an order issued in the present case in June, 1942.

After the introduction of evidence on both sides, including the pleadings in the former suit and the verdict and judgment therein, the court directed a verdict for the plaintiff, Mrs. Carlile. Gunnin, without moving for a new trial, brought the case directly to this court, complaining that the court erred in not submitting the case to the jury. Other facts are stated in the opinion. The evidence for the defendant would have supported a verdict in his favor, unless he was concluded by the verdict and judgment in the former litigation; and the main question for decision is whether the evidence shows a former adjudication or estoppel as to title. The plaintiff's case was planted in large measure upon the theory that the defendant was concluded, and the burden was upon her to sustain such claim. She introduced the pleadings in the former suit and the verdict and judgment therein, but did not offer other evidence as to what issues were there adjudicated. The petition as filed by Gunnin against Mrs. Carlile in the former case alleged (1) title in Gunnin, (2) the cutting and removal of timber by Mrs. Carlile through her agents and employees, and (3) damage to Gunnin in stated amounts. The purposes of the suit were to enjoin the further cutting and removal of timber, and to recover damages. Mrs. Carlile filed an answer (1) asserting title in herself, but also (2) denying all of the allegations as to cutting and removal of timber. The answer thus made two defenses, either of which it sustained would have defeated the plaintiff's action. The verdict was, "We the jury find in favor of the defendant," and the only judgment recovered was one for court costs.

In Draper v. Medlock, 122 Ga. 234 (50 S.E. 113, 69 L.R.A. 483, 2 Ann. Cas. 650), it was held: "Where a judgment is pleaded as an estoppel, the burden is upon the party relying upon the estoppel to sustain the plea, by showing that the particular matter in controversy was necessarily or actually determined in the former litigation; and if it appear, from the record introduced in support of the plea, that several issues were involved in such litigation, and the verdict and judgment do not clearly show that this particular issue was then decided, before such plea can be sustained this uncertainty must be removed by extrinsic evidence showing that such matter was then decided in accordance with the contention of the party relying upon the plea." To the same effect, see Prisant v. Feingold, 169 Ga. 864 (2) (151 S.E. 791); Byrd v. Goodman, 195 Ga. 621 (25 S.E.2d 34). Under this principle as applied to the instant record, the verdict for the defendant in the former case may, for aught that is shown, have been based upon a finding that she did not cut and remove any of the timber as alleged, and not on any finding as to title. It does not appear that the issue as to title was necessarily or actually determined, and it was incumbent upon her to remove the uncertainty and to show that this issue was actually determined in her favor, before she would be entitled to a verdict in the instant case upon the theory of res adjudicata or estoppel. It follows that in the trial now under review the evidence did not demand a finding in favor of Mrs. Carlile; and therefore the court erred in directing the verdict in her favor.

Judgment reversed. All the Justices concur.