Carten v. Loveless , 192 Ga. 715 ( 1941 )

1. The trial court can not take judicial notice of what is in the record in another case between the same parties, nor can this court in reviewing a decision take judicial notice of the existence of what is contained in the record of a previous case between the same parties in the Supreme Court. Accordingly it was error to strike the defendant's plea of res judicata.

2. The entire case having been submitted to the trial judge for his determination without the intervention of a jury, the decree rendered by him was authorized by the evidence and was not contrary to law.

No. 13838. SEPTEMBER 12, 1941. This suit was brought in DeKalb superior court by F. M. Loveless against John W. McCollum, a resident of DeKalb County, and against Mrs. Annie H. Thomas and E. Forrest Thomas, non-residents of this State, on a promissory note for $3000, and to have reformed a quitclaim deed held by the plaintiff, which was executed in the name of "Sarah J. Mosby Estate" as grantor, and signed "Sarah J. Mosby Estate, Mrs. Annie H. Thomas, E. Forrest Thomas," the consideration for which was the payment by the plaintiff of a promissory note for $3000, previously given by the defendant McCollum to the Sarah J. Mosby Estate, and which note was simultaneously with the execution of the said quitclaim deed indorsed to petitioner in the following manner: "Pay to the order of F. M. Loveless, without recourse, this 19th day of Jan., 1931," and signed "Sarah J. Mosby Estate, Mrs. Annie H. Thomas, E. Forrest Thomas," the two last-named persons being alleged to be the only heirs at law of Sarah J. Mosby, deceased. The substance of the plaintiff's allegations was, that McCollum borrowed the money through loan agents Weyman Connors, got the benefit of the loan, and signed a security deed as well as the note; that the designation "Sarah J. Mosby Estate" as payee in the note and as grantee in the security deed, was a mutual mistake of the parties; that it was their intention that the payees and grantees should be the persons who were the sole heirs at law of the deceased Sarah J. Mosby. The prayers were that the instruments, which had been later transferred and assigned to petitioner for a stated consideration, be reformed by substituting and inserting in lieu of the expression and designation "Sarah J. Mosby Estate," wherever the same occurs, "Mrs. Annie H. Thomas, E. Forrest Thomas, sole heirs at law of Sarah J. Mosby, deceased." There was a further prayer that the instruments when so reformed shall constitute a first lien upon the real estate involved, and that petitioner be declared the true owner and holder of the note, and that as such he be entitled to a first lien on the real estate described.

By amendment the petitioner alleged, that he had since learned that at the time of the making of the $3000 loan to McCollum the sole heirs at law of Mrs. Sarah J. Mosby, deceased, were her three daughters, Mrs. Annie H. Thomas, Mrs. Sarah M. White, and Miss Carrie K. Mosby; that at that time each of the said three daughters was invested with an undivided one-third interest in her estate, and were joint and equal owners in the note and the security given therefor; that one of the three sisters, Mrs. Sarah M. White, died in 1926, leaving a will duly probated; that her executor sold her one-third interest to Carrie K. Mosby, thus making her the owner of an undivided two-thirds interest in the loan and the real estate securing the same; that Carrie K. Mosby died in 1929, and by inheritance her undivided two-thirds interest went to her sister, Mrs. Annie H. Thomas, who was her sole surviving heir at law, which thus made Mrs. Thomas owner of the entire interest; that E. Forrest Thomas is her son, and his joining with his mother in the execution of the quitclaim deed was mere surplusage, he signing under the erroneous opinion that he and his mother were both heirs at law of Sarah J. Mosby.

Service was perfected on the defendant McCollum, and the non-resident defendants acknowledged service. The only defendant to answer the petition was McCollum, who pleaded res judicata, attaching to his plea copies of the pleadings and adjudications in former suits between the same parties, a portion of said plea being as follows:

"1. The issues sought to be raised in the above-stated case have already been adjudicated in a prior action between the parties; said prior action being a suit filed by the same plaintiff against the defendant John W. McCollum in Fulton superior court.

"2. This defendant shows that said former action was an equitable action for (among other things) a general accounting between the said F. M. Loveless and this defendant; that all issues of law and of fact in said former action were referred to an auditor, who heard all of the evidence and rendered a final report thereon, to which final report exceptions of law and of fact were filed; that the rulings upon said exceptions were carried to the Supreme Court of Georgia, and said case was decided by that court; that the judgment of the Supreme Court was made the judgment of Fulton superior court in said case.

"3. This defendant shows that the identical note for $3000 and the deed given to secure said note referred to in the above-stated case in this court were introduced in evidence before the auditor in said former action, and the question of the value of said deed and note was an issue in said former action, and was passed upon and decided by said auditor and by the Supreme Court of Georgia.

"9. This defendant shows that since there has been an adjudication that the plaintiff is not entitled to recover on said note, he is therefore not entitled to have said note or the deed purporting to secure same reformed; and this defendant shows that the issues between the parties have been heretofore fully and finally adjudicated, and the plaintiff is therefore not entitled to proceed with this action."

Pertinent exhibits were attached to the plea. In no other part of the special plea or in any exhibit thereto is there anything in conflict with that portion of the plea above set forth. This plea was stricken by the court, and exceptions pendente lite were filed by the defendant. McCollum having died pending the hearing, Lillian Carten was appointed and qualified as his administratrix, and was made a party in his stead. At the conclusion of the hearing of the testimony and argument of counsel, the court rendered a judgment reforming the instruments as prayed, and decreed that the plaintiff have judgment against the defendant administratrix. Her motion for new trial was overruled, and she excepted, assigning error on that ruling and on the striking of her special plea. 1. The special plea, called by counsel for plaintiff in error a plea of res judicata, and designated by counsel for defendant in error a plea of estoppel, was stricken on motion. The correctness of this ruling raises only the question whether the plea was good in substance, since a motion to dismiss can reach no further than a general demurrer. The petition filed in DeKalb superior court sought to reform certain instruments and documents relating to a certain three-thousand-dollar loan made to McCollum, and particularly the deed given to secure the loan. It was prayed that the deed be decreed a first lien on the real estate involved; and that the petitioner be decreed the true owner and holder thereof. The plea, omitting the exhibits, is shown in the foregoing statement of facts. Attached thereto were such portions of two former actions between the same parties, one in Fulton superior court and the other in the city court of Decatur, as the defendant claimed to be material. The stricken plea set out that the issues sought to be raised in the present case had been adjudicated in these previous suits. This was a good plea, regardless of whether it appeared from the exhibits that the identical issue was included. This may be shown by aliunde proof. It was sufficient as a plea that it aver the fact that such issue had been actually litigated and determined. See Sumner v. Sumner, 186 Ga. 390 (197 S.E. 833), and cit. Phillips v. Hightower, 190 Ga. 785 (10 S.E.2d 854).

Previous litigation between these same parties has heretofore been before this court and the Court of Appeals. McCollum v.Loveless, 185 Ga. 748 (196 S.E. 430); McCollum v.Loveless, 187 Ga. 262 (200 S.E. 115); Loveless v.Carten, 64 Ga. App. 54 (12 S.E.2d 175). It is by counsel for defendant in error urged, as a reason why the plea was properly stricken, that in one of the cases which came to this court the trial judge expressly eliminated the issue here involved, by the entering of an order containing this language: "Wherefore it is adjudged by the court that defendant's rights and title in said note are not dealt with in this proceeding, but are eliminated from same without an adjudication with reference thereto. . . The pleadings in the present case do not present the matter in proper form for an adjudication, . . and the matter is left open for an adjudication hereafter, if proceedings to that end should be instituted." We are in the same connection referred to the bill of exceptions which came to this court in the case in which the order quoted above was entered, said bill of exceptions containing a recital that "said judgment, order, and decision has the further effect of withdrawing from the case a portion of the questions and issues relating to said loan deed and the note it was given to secure," etc. The portion of the record referred to as being in a case formerly before this court is not a former appearance of the instant case. It was a different case brought in a different county. If counsel for defendant in error sought to rely on the above as a reason why the plea should not be sustained, he should have taken issue, and on the trial should have in an appropriate way made them a part of the record in the present case. The judge of DeKalb superior court could not take judicial cognizance of orders passed in another suit between the same parties in Fulton superior court, nor is this court, in this case, justified in so doing merely because of a recital in a bill of exceptions in a former and a different case between the same parties in this court. Glaze v.Bogle, 105 Ga. 295 (31 S.E. 169), is decisive of the question. In that case, the court laid down the rule: "In the trial of one case the court can no more take judicial notice of the record in another case in the same court, without its formal introduction in evidence, than if it were a record in another court; much less can this court take notice of the existence of a record not introduced in evidence in the court below. There was no trial in this case, but the question was determined upon an inspection of the pleadings." See O'Connor v. United States,11 Ga. App. 246 (75 S.E. 110); Durham v. Ramhurst LumberCo., 145 Ga. 189, 190 (88 S.E. 932); Laurens County Board ofEducation v. Stanley, 187 Ga. 389, 391 (200 S.E. 294). The reference in Frank v. State, 142 Ga. 741, 761 (83 S.E. 645, L.R.A. 1915D, 817), was as to the right of a court to inspect the records in a former appearance of the same case. The ruling in Ellis v. First National Bank of Atlanta, 182 Ga. 641 (186 S.E. 813), dealt with a former adjudication in the same case. The result reached in Loveless v. Carten, supra, was based on the evidence introduced on the hearing of the plea, not, as here, on a motion to strike. Nothing contrary to what we now hold was ruled in Redwine v. Frizzell, 186 Ga. 296 (197 S.E. 805). In so far as it touches on the question in the instant case, it was there ruled that in view of the circumstances presented a reversal would not be had merely because the judge took judicial cognizance of what had previously been ruled in that particular case, and gave effect thereto, without a plea of res judicata having been filed; the judge having announced in the presence of counsel for both sides that he would take such judicial cognizance, the counsel offering no objection at the time this announcement was made, and no error being assigned on his taking judicial cognizance.

We must rule that the court erred in striking the plea.

2. As to the issue raised by the petition and answer it is earnestly pressed upon us by counsel for the plaintiff in error that it was also erroneous to enter a finding at the conclusion of the evidence in favor of the petitioner, and to decree that the loan deed executed by McCollum to "Sarah J. Mosby Estate" was effective to create in favor of Mrs. Sarah M. White, Miss Carrie K. Mosby, and Mrs. Annie H. Thomas a first lien on the property, and that Loveless by virtue of the purchase and transfer to him was the owner of said loan deed and the title conveyed thereby, and was entitled to foreclose the same. It is insisted that the evidence was insufficient to authorize it. In view of the allegations of the petition and the answer including the admissions therein, the prayers of complainant, and the nature of the transaction, we are of the opinion that the testimony before the court and all the legitimate deductions to be drawn therefrom, in the light of the attendant circumstances, were sufficient to authorize the finding made by the judge, to whom the case by agreement had been submitted without the intervention of a jury. We reverse the judgment solely on account of the error in sustaining the motion to strike the special plea.

Judgment reversed. All the Justices concur.