English v. Rosenkrantz

George, J.

This case comes to the Supreme Court on questions certified by the Court of Appeals. Several questions are certified; but the jurisdiction of the Court of Appeals and of this court depends upon the answer to the second question, which is as follows : “ Where a defendant filed a plea of res judicata, which was by agreement submitted to the trial judge for determination upon questions both of law and fact, the latter being undisputed, did a finding by the trial judge adverse to this plea of. res judicata affect the final result of the case, or would a judgment finding in favor of the plea, contended for by the defendant, ‘have been a final disposition of the cause/ and would a bill of exceptions lie to the judgment rendered as provided for in the Civil Code (1910), § 6138 ? The plea of res judicata prayed: ‘ That this case be dismissed or that the plaintiff be held to be estopped from further prosecuting the same/ The judgment finding against the plea of res judicata was as follows: ‘ The within case coming on for a hearing upon plea of res ad judicata; and it being agreed by counsel of record for both plaintiff and defendants that the special plea should be submitted to the presiding judge without a jury, who should pass upon all questions of law and fact, after hearing evidence and argument of counsel, it is ordered, considered, and adjudged that said plea of res adjudicata be and is hereby overruled and refused/”

Under the decision in the case of City of Tallapoosa v. Brock, 143 Ga. 599 (85 S. E. 755), a direct bill of exceptions will not lie to the judgment overruling the plea of res judicata to the suit. In that case, as in this, as disclosed by the original record of file in the office of the clerk of this court, the issue raised by the plea was, by agreement of counsel, submitted to the trial judge for determination upon questions of law and of lact; and in that case, as in this, the prayer was that the suit “he dismissed.” That the necessary effect of a judgment sustaining a plea of res judicata to a suit may he to entitle the defendant to a judgment dismissing the action, as a matter of course, is not decisivo of the question. Johnson v. Battle, 120 Ga. 649 (48 S. E. 128). A judgment sustaining a plea of res judicata to a suit, though generally controlling, is not “final,” within the meaning of the Civil Code (1910), § 6138. See W. & A. R. Co. v. Williams, 146 Ga. 27 (90 S. E. 478); Brock v. Tallapoosa, 19 Ga. App. 793 (92 S. E. 289).

It appearing that the writ of error was prematurely sued out, neither the Court of Appeals nor this court has jurisdiction to consider and decide any of the other questions propounded.

All the Justices concur.