Opinion
20403.
SUBMITTED MARCH 9, 1959.
DECIDED APRIL 9, 1959.
Specific performance. Cobb Superior Court. Before Judge Manning. December 31, 1958.
Hicks Henderson, for plaintiff in error.
Reed, Ingram Flournoy, Conley Ingram, J. G. Roberts, contra.
1. The plaintiff's right to proceed against the defendant Randall was terminated by the final judgment against him ( Smith v. Robinson, 212 Ga. 761, 762, 95 S.E.2d 798), for a recovery of the amounts paid Randall by the plaintiff. A judgment of a court of competent jurisdiction is conclusive between the parties as to all matters in issue, or which under the rules of law might have been put in issue until such judgment is reversed or set aside. Code §§ 110-501, 38-623, 3-607; Sumner v. Sumner, 186 Ga. 390 ( 197 S.E. 833); Hubbard v. Whatley, 200 Ga. 751 ( 38 S.E.2d 738); Lankford v. Holton, 204 Ga. 192 ( 48 S.E.2d 833); Lankford v. Dockery, 206 Ga. 675 ( 58 S.E.2d 403); Coggins v. Edmonds, 210 Ga. 196 ( 78 S.E.2d 418). The plaintiff was not entitled to proceed further on the same cause of action against the defendant John Clyde Randall.
2. In the present case, as in the former action, the plaintiff prayed for a reformation of the description in her contract with Randall. The petition does not allege that the description as contained in the contract was the result of a mistake on the part of both parties, or mistake on the part of one party and fraud on the part of the other, and no right to reformation of the contract is shown. Code §§ 37-207, 37-215; Gibson v. Alford, 161 Ga. 672 ( 132 S.E. 442); Salvage Sales Co. v. Aarons, 181 Ga. 133 ( 181 S.E. 584); Rawson v. Brosnan, 187 Ga. 624 ( 1 S.E.2d 423); Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 704 ( 38 S.E.2d 534). John Clyde Randall was not merely a proper party, but an essential party, to the reformation of his contract; and the plaintiff having recovered a final judgment (which judgment was for a full recovery of the amounts paid by her), she can not pursue the matter further for a reformation of her contract with Randall, and for specific performance of that contract by the Robinsons, on the theory that they purchased from Randall with knowledge of her contract. Questions settled by a former final judgment must be considered an end of the litigation; they can not be litigated in other actions, directly or indirectly. Lankford v. Holton, 196 Ga. 631 ( 27 S.E.2d 310).
3. The contention of the plaintiff, that the overruling of the defendants' demurrers on the same date the court sustained the plea in bar as to the defendant Randall amounted to a judgment that the petition stated a cause of action for the relief prayed, is without merit. The demurrers were filed subject to the plea in bar previously filed. The judge having reserved his ruling on the plea in bar as to the defendants Robinson, the ruling on the demurrers did not preclude a subsequent judgment, which in effect sustained the plea in bar as to the remaining defendants, and dismissed the action.
Judgment affirmed. All the Justices concur.
SUBMITTED MARCH 9, 1959 — DECIDED APRIL 9, 1959.
On the former appearance of the present case in this court (see Smith v. Robinson, 212 Ga. 761, 95 S.E.2d 798, for a statement of the facts and the rulings made), direction was given that the plaintiff have leave to vacate the verdict, and substitute a judgment of nonsuit as to the defendant V. A. Robinson. A nonsuit had been entered in the trial court as to the defendants P. H. and W. N. Robinson. Thereafter, on April 3, 1957, the plaintiff filed a second action containing identical allegations and prayers against the three Robinsons and John Clyde Randall; being the same defendants named in the former suit. On June 6, 1958, the trial judge sustained the plea in bar as to the defendant John Clyde Randall, and in this order it was stated that the validity of the plea in bar as to the latter three defendants (the three Robinsons) "is to be reserved for determination upon the trial of the above-styled case. . ." On the same date the general demurrers of the Robinsons were overruled. On December 31, 1958, the trial judge passed an order wherein it was recited that the "case having come on for trial in open court," and an oral motion to dismiss having been made, the motion "is hereby sustained, and said case dismissed." Error is assigned on the order sustaining the plea in bar as to the defendant Randall, and on the order sustaining the oral motion to dismiss as to the defendants Robinson.