Opinion
34011.
DECIDED APRIL 19, 1952.
Accounting; from Floyd Superior Court — Judge Nichols. January 10, 1952.
Hicks Culbert, for plaintiff.
Matthews, Maddox Bell, for defendant.
The court did not err in sustaining the plea of res judicata and dismissing the petition.
DECIDED APRIL 19, 1952.
Louis L. Wood filed suit against Estelle Johnson Wood in the Superior Court of Floyd County and alleged substantially as follows: In September of 1937 the parties entered into an agreement whereby the plaintiff was to supervise and manage the defendant's farm and receive one-half of the net earnings. The plaintiff had utmost confidence in the defendant and turned over to her all moneys earned from the farm. The plaintiff is entitled to one-half of the net earnings from the farm during the twelve years he acted as supervisor in accordance with the partnership agreement. The plaintiff prayed that the defendant be required to file a complete schedule of earnings from the farm since September, 1937, and that there be an accounting and settlement.
The defendant filed a plea of res judicata, showing that in the same court the present defendant had filed a petition for divorce and injunction, setting out her ownership of the farm and the equipment thereon and seeking to enjoin the plaintiff from removing any of the equipment.
The plaintiff filed an answer and cross-action to that suit, which contained substantially the same allegations found in the present petition. The defendant demurred to the cross-action, on the grounds that all of the cross-action which asked for special relief was not germane to the issue of divorce; that any prenuptial agreement should have been in writing, and it was not alleged that the agreement was in writing; and that any amount due the plaintiff for more than four years was barred by the statute of limitations. The demurrer was sustained, and no exceptions were taken.
In the instant case, the plea of res judicata was sustained and the petition dismissed. To this judgment the plaintiff excepted.
The only question presented for determination is whether or not the sustaining of the demurrer to the cross-action in the previous case was a final judgment on the merits of the case barring the present suit. "A former recovery on grounds purely technical, and where the merits were not and could not have been in question, shall not be a bar to a subsequent action brought so as to avoid the objection fatal to the first. For the former judgment to be a bar, the merits of the case shall have been adjudicated." Code, § 110-503. If, as contended by counsel for the plaintiff in error, the judgment of the court amounted to a ruling only that the cross-action was not maintainable because it was not germane to the issue in the divorce case, the dismissal would have been on grounds purely technical and the present suit would not be barred. Smith v. Bird, 189 Ga. 105, 106 ( 5 S.E.2d 336). However, the judgment was a general order sustaining the demurrer without specifying the grounds or the basis of the decision; hence it must be treated as sustaining the entire demurrer on all its grounds, general and special. Willingham, Wright Covington v. Glover, 28 Ga. App. 394 (1) ( 111 S.E. 206); DeLoach v. Georgia Coast Piedmont R. Co., 144 Ga. 678 (1) ( 87 S.E. 889). Paragraph 4 of the demurrer, which contended that the prenuptial agreement should have been in writing, and it was not alleged that it was in writing, went to the merits of the case, and the judgment on the demurrer, right or wrong, being unexcepted to and unreversed, became the law of the case. Bean v. Barron, 176 Ga. 285, 287 ( 168 S.E. 259). The judgment was upon the merits, since it amounted to a declaration of the law as to the respective rights and duties of the parties, based upon the ultimate facts disclosed by the pleadings, and upon which the right of recovery depended ( Wolfe v. Georgia Ry. c. Co., 6 Ga. App. 410, 412, 65 S.E. 62); and hence is a bar to this suit for the same cause. Code, § 110-504. "He must discharge all his weapons, and not reserve a part of them for use in a future rencounter. He must realize that one defeat will not only terminate the campaign, but end the war." Perry v. McLendon, 62 Ga. 598, 605. The court did not err in sustaining the plea of res judicata and dismissing the petition.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.