Sudderth v. Harris

Stephens, J. 1. A judgment sustaining a general demurrer to a petition, on the ground that the petition sets out no cause of action, is a decision upon the merits of the case. The judgment is res judicata of the cause of action sued on. Fain v. Hughes, 108 Ga. 537 (33 S. E. 1012); Wolfe v. Georgia Railway & Electric Co., 6 Ga. App. 410 (65 S. E. 62) ; Code of 1933, § 110-504 (Code of 1910, § 4338). 2. A petition, in a suit in the superior court of Gwinnett County, Georgia, in which it is alleged that “T. L. Harris, S. J. Busha, and Paul Sims, county commissioners of the County of Gwinnett,” and also the County of Gwinnett, are the defendants, and that “the defendants are indebted to the plaintiff” in a designated sum of money “by reason of [the plaintiff] having been employed by defendants” to go to the [655] State of Florida and bring back to the County of Gwinnett a person charged with a crime, is a suit against the individuals named, in their individual capacity. The expression “County Commissioners of the County of Gwinnett,” following the names of the defendants, is merely deseriptio personte. Armour Packing Company v. Lovell, 118 Ga. 164 (44 S. E. 990); Stephens v. Atlanta, 119 Ga. 666 (46 S. E. 872)Code of 1933, § 4-401 (Code of 1910, § 3570). Decided August 17, 1935. K. W. White, for plaintiff. Marvin A. Allison, John I. Kelley, for defendants. 3. In a subsequent suit brought in the city court of Buford by the same plaintiff against T. L. Harris and S. J. Busha, two of the defendants in the former suit, to recover of them individually upon the same cause of action as that alleged in the former suit, evidence consisting of the judgment sustaining a general demurrer to the petition in the former suit, which was based upon the ground that the petition set out no cause of action, is sufficient to sustain the defendants’ plea setting up the judgment as res judicata. 4. The superior court therefore did not err in refusing to sanction the plaintiff’s petition for certiorari. Judgment affirmed. Jenkins, P. J., and Sutton, J., oonctir.