Loftis v. Flowers , 79 Ga. App. 325 ( 1949 )

The court erred in overruling the motion for a new trial.

DECIDED MAY 21, 1949. On December 13, 1946, J. E. Flowers filed suit in the City Court of Decatur against W. S. Loftis and J. A. McCrary, seeking to recover rent for the use of certain property described in the petition, owned by the plaintiff, and located in the City of Chamblee, Georgia. The petition alleged that the defendants were using the property for the operation of a sewer system. The prayer for rent was not based on any express contractual relation between the parties, but on an obligation implied by law to pay rent for the use of the property from June 18, 1942, up to the time of filing the suit. On the trial of the case, according to the brief of the plaintiff, the defendants made an oral plea of easement and in rebuttal of that plea the court admitted in evidence, over the objection of the defendants, the petition of the plaintiff, filed July 3, 1942, the answer of the defendant, an amendment to the petition, the verdict of the jury and the judgment of the court in the case of J. E. Flowers v. Chamblee-Camp Gordon Water, Light Power Company from the Superior Court of Fulton County, which petition and amendment sought to recover rent from Chamblee-Camp Gordon Water, Light Power Company for the use of the same property involved in this case for the period July 3, 1938, to June 6, 1946. The plaintiff, J. E. Flowers, recovered $500 in that case. It appeared from the evidence in the instant case that the defendants purchased the sewer system from Chamblee-Camp Gordon Water, Light Power Company in June, 1942. The jury in this case also returned a verdict for $500. The defendants' motion for a new trial, based on the general and two special grounds, was overruled and they excepted. 1. The record of the former suit between the plaintiff and Chamblee-Camp Gordon Water, Light Power Company was filed subsequently to the purchase of the sewer system by the present defendants from Chamblee-Camp Gordon Water, Light Power Company, and the present defendants were in no way bound by the adjudications in that suit. The defendants are privy in estate only with respect to the estate at the time of their purchase from Chamblee-Camp Gordon Water, Light Power Company, and, as to acts done, relations formed, or admissions made, after the title had passed out of Chamblee-Camp Gordon Water, Light Power Company the defendants were in no way bound, nor should evidence of their subsequent acts or admissions be admitted, as they are without probative value. Code, § 38-407; Garrard v.Hull Tobin, 92 Ga. 787, 789 (20 S.E. 357); Elwell v.New England Mortgage Security Co., 101 Ga. 496 (2) (28 S.E. 833); Alderman v. Alderman, 141 Ga. 600 (81 S.E. 899);Blakewood v. Yellow Cab Co. of Savannah, 61 Ga. App. 149 (6 S.E.2d, 126). The court erred in admitting the record of the former suit.

2. In view of what has been held in the foregoing division of this opinion, it was likewise error to allow testimony concerning the outcome of the former suit.

For the reasons stated in the foregoing divisions of the opinion, the court erred in overruling the motion for a new trial.

Judgment reversed. Gardner and Townsend, JJ., concur.