Under the law and the facts the court did not err in granting a nonsuit.
DECIDED MAY 28, 1943. REHEARING DENIED JUNE 10, 1943. This was a suit by W. O. Smith against C. I. T. Corporation for damages alleged to have been occasioned by the institution of a bail-trover action by it against him for the recovery of a certain automobile. The judge granted a nonsuit and the plaintiff excepted.
The petition as amended alleged substantially that a nonsuit was granted on the first trial of the bail-trover action, and that this court reversed that judgment; that the second trial resulted in a verdict and judgment in favor of the defendant; that that judgment *Page 517 was affirmed by this court, and that the case terminated in favor of the defendant. These allegations were admitted by the answer, but the following allegations were denied: that the bail-trover suit was brought maliciously and without probable cause; that the plaintiff was not proceeding in good faith, and that the same constituted a malicious use of legal process; that the only question submitted by the court to the jury on the trial of the bail-trover case was whether or not C. I. T. Corporation acted in good faith in bringing that suit; and that the termination of the case in favor of the defendant was a determination that the plaintiff therein was not acting in good faith in bringing the said action.
The plaintiff testified that a deputy sheriff went to the office of a newspaper in Rome where he was working, exhibited the bail-trover suit to him, told him that he would have to take him or the automobile, and that the officer remained with him in the place of business where he was working until he telephoned for and had the automobile produced, which was for a period of about an hour. He testified: "At the time this proceeding was brought by the C. I. T. Corporation against me I did not owe them any amount of money that was due, because the last payment that was due on the automobile was made ten days before it was due." The plaintiff introduced in evidence the petition and amendment and affidavit for bail in the trover action, the answer, the verdict of the jury, and the charge of the court. It was admitted by the corporation that the trover suit had terminated in favor of Smith, the defendant in the trover suit. There was other testimony as to expense of the litigation, etc., which is not material here.
The present suit is based on alleged malicious use of legal process. The question for decision is whether the court erred in granting a nonsuit. Nothing besides the evidence and pleadings contained in this record can be looked to to determine whether the court erred in granting a nonsuit. If anything contained in any other litigation between the parties can be considered in determining this question it must appear in the evidence as shown by the record in this case as here *Page 518 presented. Prisant v. Feingold, 169 Ga. 864 (151 S.E. 799); Byrd v. Goodman, 195 Ga. 621 (25 S.E.2d 34);Gunnin v. Carlisle, 195 Ga. 801 (25 S.E.2d 652).
No question of res judicata or estoppel by judgment can be considered in the determination of the validity of the judgment granting a nonsuit unless such former judgment, whether it operates as res judicata or as an estoppel, together with any necessary portions of the former record, appear in the evidence in the present case. Conclusions of law contained in the opinions in other cases can not be read into the record in this case or considered as an adjudication of any issue in the present case or as an estoppel.
The only evidence contained in the record in the present case as respects any matter contained in any other litigation between these same parties consists of the affidavit for bail, the pleadings in the trover suit instituted by the present defendant against the present plaintiff, and which is the basis of the present suit for malicious use of process of the court, the verdict for the defendant, and the charge of the court in that case. None of the evidence adduced on the trial of the trover case appears in this record. Nowhere does it appear that the plaintiff in the trover suit had sold the automobile under a contract which contained an "insecurity clause." Any statements made by the judge in his charge to the jury on the trial of the trover suit, which appear in the charge introduced in evidence in the present case, that the trover case was based on the so-called insecurity clause in a contract of sale between the corporation as seller, and Smith as purchaser, and that the issue presented in that case was whether the plaintiff acted in good faith in deeming itself insecure, are insufficient to establish the scope of the pleadings in that case, or to show what evidence was actually adduced and presented on the trial of that case. Such statements amount only to the construction which the judge in that case placed on the pleadings and the evidence. Such charge, as evidence in the present case, is evidence only of the fact that the judge delivered such charge in the former case. The cause of action in the trover case, as it appears from the pleadings, involved only the question of the plaintiff's title to the property and its conversion by the defendant, to the plaintiff's damage. Therefore, within the scope of the pleadings, nothing could have been adjudicated in that case as *Page 519 respects the question of malice and want of probable cause on the part of the plaintiff in that case in instituting that suit.
The case now before the court presents for consideration the question whether the defendant in the present case, who was the plaintiff in the trover suit, instituted the trover suit maliciously and without probable cause. The present suit, which is for malicious use of process, is manifestly predicated on a cause of action different from that on which the trover suit was predicated. It is well settled that no judgment can be relied on in a subsequent suit as res judicata of any issue in the latter suit unless both suits are on the same cause of action. 34 C. J. 750. In 34 C. J. 743, § 1153, it is stated as having been settled by the Duchess of Kingston's case, which is the fountain source of the doctrines of res judicata and estoppel by verdict or judgment, as follows: "The judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal." To the same effect see Farmer v.Baird, 35 Ga. App. 208 (132 S.E. 260). Therefore nothing adjudicated in the trover suit, or which could have been adjudicated therein, can be considered as res judicata in the present suit.
Since it does not appear in the evidence in this record what evidence was introduced on any former suit between these parties, it can not be determined from the evidence in the record here presented what matter, if any, was actually adjudicated in any former suit between these parties and which could act as an estoppel by judgment. Prisant v. Feingold, supra.
Since the same rulings and conclusions of law contained in the opinion in the former suit can not be read into the record here as matters adjudicated, in the absence of the pleadings and evidence on which such former rulings were applicable, it can not be held that under the ruling of this court in the former case between these parties the facts and circumstances were sufficient to authorize a jury to find that the corporation acted in good faith in deeming itself insecure and in bringing the trover suit, and therefore had probable cause for so doing.
The evidence in the present case, which consists of the testimony *Page 520 of Mr. Smith and his attorney, Mr. Maddox, and of the pleadings in the trover suit, must alone be looked to in determining whether or not the plaintiff made a prima facie case of want of probable cause and malice. None of the evidence adduced in the trover suit appears in the present record.
The burden is on Smith, in the present case, in order to avoid the grant of a nonsuit, to show that the trover suit was instituted maliciously and without probable cause, and that it had terminated favorably to him. The evidence clearly shows that the trover suit terminated favorably to him. The only evidence which could tend in any way to establish a want of probable cause is that contained in the testimony of Smith himself, that when the corporation instituted the trover suit, he had paid all installments due by him to the corporation. This necessarily implies that Smith was buying the automobile, which was the subject matter of the trover suit, from the corporation. The evidence does not show that the entire purchase price was paid, and does not establish lack of title to the automobile in the corporation. Although since the evidence imports a contract of sale between the corporation and Smith, it does not exclude the possible existence in the contract of sale of some provision authorizing the corporation to act in good faith, without malice, and with probable cause, in instituting the trover suit. While it appears nowhere from the evidence that there was any contract of sale between the parties containing a so-called insecurity clause, it does appear that there was a contractual relationship between the parties. It does not appear anywhere from the plaintiff's evidence that under this contractual relationship C. I. T. Corporation did not have probable cause in instituting the trover suit against Smith.
The court did not err in granting a nonsuit.
Judgment affirmed. Felton, J., concurs. Sutton, J., concursspecially.