Opinion
35526.
DECIDED APRIL 15, 1955.
Trover. Before Judge Etheridge. Fulton Civil Court. November 16, 1954.
Scott Walters, Walters Roberts, for plaintiffs in error.
Brown Shoob, contra.
1. The purported plea of res judicata in the present case not showing former litigation on the same cause of action between the same parties, the trial judge did not err in sustaining the general demurrer thereto.
2. A trover action may be maintained, even though a money judgment on a contract for the sale of property has been obtained but the money judgment has not been fully satisfied.
( a) Where it is shown that the defendants in a trover action had acquired possession of property under a conditional-sale contract, a mere contention that the property is now in the hands of a third party is not, without more, a good defense to the action.
3. Allegations of a petition not denied in the defendant's answer are taken as prima facie true.
4. The evidence authorized the judgment by the trial court.
DECIDED APRIL 15, 1955.
Mutual Investment Corporation brought an action in trover to recover from Mr. and Mrs. Lemuel T. Holley certain personal property to wit: "1 triple deck 8 ft. Peguin dairy self-service case No. 126-9, with self contained 1/2 H.P. Kelvinator compressor, No. 5274." The action went to default, and upon the motion of the defendants was reopened. The defendants then filed a joint plea of res judicata and joint answer, as well as other pleas which have been abandoned. The plaintiff filed a general demurrer to the pleas and answer, which was sustained. the case was tried before the judge without a jury. On the trial, the defendants objected to the introduction in evidence of a conditional-sale contract, on the ground that the witness identifying it did not see the contract executed, and that there was no testimony that the document introduced was the document sued on. The trial court rendered a money judgment for the plaintiff. The defendants filed a motion for new trial on the general grounds, and later added a special ground complaining of the admission in evidence of the above-mentioned contract. The defendants' motion for new trial was denied, and they excepted to this ruling as well as to the judgment sustaining the demurrer to the defendants' pleas and answer.
1. The defendants excepted to the sustaining of the demurrer to their purported plea of res judicata. "Before the doctrine of res judicata can be applied, it must appear that a judgment has been rendered in a court of competent jurisdiction in a former litigation between the same parties, based upon the same cause of action, in which event the litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue under the pleadings in the previous litigation." House v. Benton, 42 Ga. App. 97 ( 155 S.E. 47). In the present case the defendants filed a purported plea of res judicata, in which they set forth as an exhibit copies of the pleadings and judgment in a prior suit between the plaintiff and the present defendants. The suit in the previous action was upon a note for the balance due on the purchase price of certain personal property, which was sold under a title-retention contract. The plaintiff also prayed for a special lien upon the personal property covered by the conditional-sale contract. The present action is one in trover, and not an action to recover money due under the conditional-sale contract. Accordingly, the cause of action is not the same in each case, and the trial judge did not err in sustaining the plaintiff's general demurrer to the purported plea of res judicata. See Allen v. Community Loan c. Corp., 81 Ga. App. 65 ( 57 S.E.2d 703).
2. The defendants filed a plea and answer, in which they alleged that the plaintiff had already obtained a judgment against them for the property involved in the trover action and had thus been satisfied. They also alleged that the plaintiff had "transferred said box to Tom W. Vinson in a conditional-sale contract now in possession of the plaintiff, dated February 2, 1953, by way of conditional-sale contract and said plaintiff knows that these defendants do not have possession of said box nor title to said box."
With respect to the first defense above set forth, it must be said that the bringing of a suit for a money judgment, when it is not shown that the judgment has been fully satisfied, does not bar a subsequent action in trover, provided, however, any amount recovered by a money judgment in the trover action shall be used in reduction of the amount of the judgment in the suit on the contract. Jones v. Snider, 99 Ga. 276 ( 25 S.E. 668); Moon v. Wright, 12 Ga. App. 659 (2) ( 78 S.E. 141); Goldsmith-Leslie Co. v. Whitehead, 41 Ga. App. 287 ( 152 S.E. 589). It is alleged that, by a conditional-sale contract executed February 2, 1953, the plaintiff "transferred" the property to one Tom W. Vinson, and that the plaintiff knows the defendants do not have possession of it. However, it is apparent from the exhibits attached to a part of the defendants' pleadings that theretofore they had purchased the same property from the plaintiff under a conditional-sale contract and had come into possession of it. The mere fact that they do not now have it — without it being shown that under some agreement with the plaintiff they were released from any obligation and that it was lawfully put into the possession of Tom W. Vinson, or otherwise disposed of in accordance with instructions of the plaintiff — does not negative conversion or wrongful disposition of the property. It is argued in the brief of the plaintiffs in error that by the aforementioned conditional-sale contract title was placed in a third party. This is, of course, a non sequitur, because if Tom W. Vinson bought the property from the plaintiff under "a conditional-sale contract," the title was by such a contract reserved in the seller. The allegation of the plea shows no defense to the trover action, and the court did not err in sustaining the general demurrer thereto. Jones v. Kimbrough, Bickers Co., 137 Ga. 638 ( 74 S.E. 59).
3. The defendants in their amended motion for new trial argue that the trial court erred in admitting in evidence over their objection a conditional-sale contract, when the execution had not been proved, the witness identifying the contract testifying on cross examination that he did not see it signed. This contention is without merit for the reason that the defendants in their answer did not deny the allegations in the petition that title to the property was in the plaintiff, that they were in possession of the property, that they had executed the contract set forth in the petition, and that they had refused to deliver the property to the plaintiff. Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 444; Code (Ann. Supp.) § 81-103.
4. The evidence authorized the judgment of the trial court.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.