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 1939-10

Loveless v. McCollum , 189 Ga. 219 ( 1939 )


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  • 1. A judgment sustaining a plea of res judicata to a suit, but not ordering dismissal of the action, is not "final," within the meaning of the Code, § 6-701. English v. Rosenkrantz, 150 Ga. 745, 746 (105 S.E. 292). "The bill of exceptions complains only of the direction of a verdict in favor of a plea of res judicata. This was not such a final judgment as will support a direct bill of exceptions as contemplated by the Code of 1933, § 6-701." Crider v. Harris, 181 Ga. 555 (182 S.E. 592). See also Ross v. Mercer, 115 Ga. 353 (41 S.E. 594); Garman v. Atlanta, 55 Ga. App. 683 (191 S.E. 164).

    2. The only defense filed to a suit on notes was a plea of res judicata. The court, after introduction of evidence, directed a verdict as follows: "We, the jury, find for the defendant in favor of the plea of res adjudicata." The only judgment rendered was as follows: "This case coming on for hearing on the plea of res adjudicata filed by the defendant, and the jury having found in favor of the plea, judgment is hereby rendered in favor of the defendant on said plea, and against the plaintiff for cost of court." The exception by the plaintiff to the direction of the verdict is not an exception to a final judgment.

    3. Applying the principle announced in the preceding division, the writ of error is subject to dismissal on the ground that the bill of exceptions does not contain an exception to a final judgment or an exception to a judgment which would have been final if rendered as contended for.

    (a) The rulings in Scarborough v. Holder, 127 Ga. 256 (56 S.E. 293), Mckenzie v. Consolidated Lumber Co., 142 Ga. 375 (4), 380 (82 S.E. 1062), and Harry L. Winter Inc. v. Peoples Bank, 166 Ga. 385 (143 S.E. 387), related to different facts, and do not conflict with what is here stated. *Page 220

    (b) The decision in Newsome v. Smith, 25 Ga. App. 148 (102 S.E. 841), does not seem to be in accord with the ruling announced in the first division, or the decisions of this court therein cited; but it is not controlling as a precedent, and will not be followed.

    Questions answered accordingly. All the Justices concur.

    No. 12817. OCTOBER 10, 1939. REHEARING DENIED NOVEMBER 17, 1939.