Newsome v. Smith

Smith, J. 1. The record in this case discloses that the plea designated a plea in abatement is in reality a plea of res judicata, and the judgment of the lower court sustaining the plea is a final disposition of the case. The motion to dismiss the writ of error on the ground that it was premature is therefore without merit, and must be denied. 2. A plea by the defendant that the matters set up by the plaintiff in the present suit could have been pleaded as a set-off to a former suit, brought by the defendant against the plaintiff, on an account, in the same court, is not, without more, a good plea of res judicata. While the plaintiff in the present suit could have pleaded a set-off, he was not, under the law, compelled to do so, unless the claim or claims upon which the present suit was brought and the matters adjudicated in the other suit grew out of the same transaction. See Johnson v. Reeves, 112 Ga. 690, 691, (37 S. E. 980) ; Ray v. Fleetwood, 106 Ga. 253, 257 (32 S. E. 156). 3. There was no evidence to authorize the judgment sustaining the plea of res judicata. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.