Ehrlich v. Bell

Hines, J. 1. The petition set forth a cause of action, and the trial judge did not err in overruling the grounds, general and special, of the demurrer thereto. 2. Where the plaintiff in his petition, anticipating the defense which the defendant would set up to his cause of action, alleged that the defendant was estopped from setting up such defense, by reason of a judgment obtained in a former suit in the city court of Swainsboro, in which the same defense was involved and adjudged against the defendant, and where the defendant in his answer alleged, in avoidance of the estoppel by judgment thus pleaded by the plaintiff, that when the former suit in the city court was called for trial he moved the court to have the case reported stenographieally, when the court informed him that the stenographer was ill and not in attendance upon the court, that in consequence said case was tried without being reported, that he filed a motion for new trial therein, that the brief of evidence had to be prepared from memory, that the parties failed to agree upon the evidence introduced on the trial of the case, that the judge of the city court approved the brief of evidence prepared by counsel for the plaintiff, which the defendant then contended and now contends was not an accurate statement of the evidence produced upon the trial of the case, that in the former suit only $100 was directly involved, while, if the estoppel set up by the plaintiff be sustained, more than $2,000 was indirectly involved in the trial of the former action, that the law creating said city court does not give to a party the right to have a ease reported unless the amount involved is $500 or more, that in consequence “this defendant should, in equity, be given a full hearing and a complete right to be heard on appeal with a stenographic report of the evidence and the charge of the court upon the issues involved in his cause;” and where the defendant prayed “the court for equitable relief from the estoppel pleaded in the plaintiff’s petition, if it should be held that a legal estoppel has been pleaded by the plaintiff, and that all the facts in his defense be heard and passed upon by the jury in this court,” Eeld: (а) A judgment of a court of competent jurisdiction will only be set aside by a decree in equity for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fraud of the petitioner. Civil Code (1910), §§ 4584, 5965. (б) Where parties disagree as to the correctness of a brief of evidence, and the trial judge approves a brief of evidence prepared by counsel for the plaintiff, a court of equity will not set aside or disregard such order, where the judgment is entered in the cause in favor of the plaintiff in consequence of the overruling of the motion for new trial, upon the bare [548] allegation of the defendant that such brief of evidence is incorrect, there being no allegation of accident, mistake, or fraud, or other acts of the adverse party unmixed with the negligence or fraud of the complainant, which brought about such order approving the brief of evidence. Th^ certificate of the trial judge approving this brief of evidence is conclusive of its correctness. No. 5458. January 14, 1927. 3. The original petition set forth a cause of action which entitled the plaintiff to recover, and also an estoppel by judgment which would prevent the defendant from setting up the only defense which he made to the plaintiff’s cause of action. In his answer the defendant admitted the substantial allegations of the petition, but pleaded to the action said defense, which he was by judgment estopped from making. The court did not err in directing a verdict for the installments of rent due when the suit was commenced, for any of the reasons alleged by the defendant. 4. By an amendment to his petition plaintiff alleged that installments of rent had become due since the filing of the petition, and he prayed for judgment for the installments of rent due when his suit was commenced and for the installments of rent which became due thereafter. This amendment was allowed by the court. The court directed a verdict in favor of the plaintiff for both of said installments. Held, that the plaintiff could not obtain judgment on the installments of rent which, at the time suit was filed', were not due; and the court erred in directing a verdict in favor of the plaintiff for these installments. Keen v. McAfee, 116 Ga. 728 (42 S. E. 1022). 5. The judgment of the court below is reversed, with direction that the judgment be so amended as to embrace only the installments of rent which were due when the suit was commenced, with interest and attorney’s fees, and without prejudice to the rights of the plaintiff to recover hereafter in a proper proceeding the installments of rent not due when the present suit was filed. Judgment reversed, with direction. All the Justices concur. T. N. Brown, for plaintiff in error. I. W. Rountree, contra.