1. "When a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume, as to the same subject-matter and against the same adversary, a contrary position."
2. The court did not err in overruling the motion to strike the defendant's plea to the effect that the notes sued upon were based upon no valid consideration.
DECIDED OCTOBER 18, 1949. This case is here on assignment of error to a final judgment overruling an amended motion for a new trial. H. L. Carter, plaintiff in the court below, plaintiff in error here, we shall hereinafter call the plaintiff. E. Z. Carter was the defendant in the court below. The plaintiff sued the defendant, his brother, on two promissory notes, one for $1000 bearing date of December 17, 1928, and due December 1, 1929. There appears from the record a credit of $50 on this note during the year *Page 173 1929, $25 credit during the year 1930, $25 credit during the year 1933, and $100 credit during the year 1935. The other note was for $1100 bearing the same date as the note above, and due December 1, 1930. Both notes bore interest at the rate of eight percent and each provided for ten percent attorney's fees. The suit for the aggregate sum of $1900 principal was filed by the plaintiff against the defendant on January 11, 1947. The defendant filed an answer containing two defenses: First, a plea of res judicata; the second plea was that there was no valid consideration. In the plea of res judicata, the defendant alleged that the plaintiff filed suit on the same notes in the same court on February 1, 1937, and obtained a judgment for the amount for which suit was brought. There was attached to the plea of res judicata an execution, but no other proceedings on which the execution was based. The plaintiff made a motion to strike this plea on the ground that there were no proceedings attached to the plea on which it could legally issue. Thereupon the defendant amended his plea and alleged that all of the pleadings had been lost or destroyed and that for this reason he could not attach the lost papers. The court overruled the motion to strike the plea of res judicata, and the plaintiff duly filed his exceptions pendente lite and error is assigned in the bill of exceptions on this judgment of the court overruling the motion to strike the plea of res judicata. The defendant on his plea of no consideration in the second paragraph thereof alleged substantially: "That the notes given by defendant to plaintiff as set forth in said paragraph were given solely for and on account of plaintiff's insistence therefor, not as an obligation of the defendant, but solely as a memorandum for his convenience in keeping up with any payments that might be made on certain old, worthless notes in the possession of the defendant, payable to the partnership known as Carter and Jackson, and given by customers in dealing with said partnership. Plaintiff by some means became owner of the interest of said Jackson in said partnership notes. Further answering, the defendant says that defendant was in the mule business with another and that they had many old, worthless notes which had gone bad during the depression and the partner made some trade with the plaintiff whereby the plaintiff took *Page 174 the place of the original partner, insofar as these uncollected notes were concerned. Plaintiff is the defendant's brother and he came over, looked over the old notes owing the partnership, added them up, and said he was moving away and wanted some record of the amounts owing. That if and when anything was collected on these old notes the defendant could remit to him his part, but that he wanted the notes signed by the defendant, so he could credit them as collections where made and thereby keep up with them. The defendant was never able to make any collections on the old notes and the credits on the notes sued on were amounts the defendant sent to the plaintiff in response to pleas of dire need and misfortune, such as `he was robbed and was penniless and had to have some assistance.' The defendant did not expect and did not know these amounts were being credited on the notes as payments by customers, since they were not so received. It was distinctly understood and agreed that the notes given by the defendant were not in fact obligations of the defendant except as to any and all amounts he was able to collect from the old notes. The defendant has never been able to make any collections and still has the old notes. The defendant did not owe the plaintiff any amount whatsoever, has never received any consideration for signing said notes, the plaintiff did not sign over to him the old notes owing the partnership, never parted with anything of value for said notes, and therefore said notes were without any consideration whatever. The defendant considered the plaintiff as part owner of the old notes, which were worthless, and plaintiff so understood at the time." The plaintiff moved to strike this second part of the answer as setting up no legal defense to the petition for judgment on the notes. This motion was overruled, exceptions pendente lite were duly filed to the ruling, and error is assigned thereon in the bill of exceptions. The case proceeded to trial. The evidence which developed on the plea of res judicata in the present suit was substantially that the execution, which issued on the suit filed by the plaintiff on February 1, 1937, became dormant and the plaintiff instituted proceedings to revive the execution, filed to the February term, 1945, and tried at the February term, 1946. In this revival proceeding the defendant answered and testified *Page 175 that he had never been served in the original suit filed in 1937; that he had not appeared; that no one had represented him or was authorized to represent him; that he had not had his day in court and for this reason the execution sought to be revived was void and a mere nullity. The entire evidence in this revivor proceedings was introduced in the instant case, without objections. In those revivor proceedings there was no record introduced to show that the defendant had been served in the proceedings of 1937. The sheriff whose duty it was to make the service was deceased at the time of the filing and trial of the revivor suit. There is no record in that revivor action or in the instant case to show that the defendant was ever served. When the defendant so testified as to no service and that he had never had his day in court, the plaintiff through his attorney dismissed the revivor proceedings. He took no judgment to effect that there was no service, but relied on the positive testimony of the defendant that he had never had his day in court. Then it was that the instant suit was filed. The court in the instant case instructed the jury that they were to first determine whether the defendant had been served and had had his day in court in the proceedings first instituted on the notes in question. The suit was filed, as above stated, in 1937, and that if the jury in the instant case should find from the evidence that the defendant had been served and had had his day in court that they should find against the plea of res judicata; and that in such event that would be controlling and the jury would then proceed to determine that portion of the plea as to whether the notes in question were based upon a valid consideration. The court further charged that if, on the other hand, the jury should find that the defendant had not been served and had not had his day in court, the jury would then determine whether the notes were based on a valid consideration. The jury found for the defendant in favor of the plea of res judicata and thus, under the instructions of the court, did not consider the question as to whether the notes were based on a valid consideration. We might state here that the defendant testified in the instant case as well as in the revivor proceedings, that he had never been served, never appeared, authorized no one to represent him, and had never had his day in court. *Page 176 1. For the purposes of this decision we will concede, but not decide, that the court was correct in overruling the motion to strike the plea of res judicata. We do this for the reason that after a careful consideration and examination of the record we find that there is not sufficient evidence on behalf of the defendant, either oral or documentary, to sustain the plea of res judicata. We are not unmindful of the fact that the issuance of the execution itself carries with it the presumption that the execution attached to the plea is based on the principle that the officers concerned in the issuance of the same performed their duty and that the defendant was properly served. But this is a rebuttable presumption. The defendant himself overcame this presumption both in the revivor suit and in the instant suit, by testifying that he was not served and had not had his day in court. This being true, it follows that the verdict in favor of the answer of the defendant as to res judicata is without evidence to support it and can not stand. The burden was on the defendant to make out his case in favor of the plea of res judicata. In Glaze v. Bogle, 105 Ga. 295, 298 (31 S.E. 169), the court said: "When such a plea is filed, the defendant assumes the burden and must show its truth to the court and to the jury." In the instant case the defendant not only did not prove, but disproved his plea of res judicata. In the revivor suit, when the defendant testified that he had not been served, and had not had his day in court, the plaintiff was thereby authorized to dismiss his revivor petition and enter a suit on the original notes as in the instant case. Judge Powell, speaking for this court in Haber-Blum-Bloch Hat Co. v. Friesleben,5 Ga. App. 123 (62 S.E. 712), said: "When a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume, as to the same subject-matter and against the same adversary, a contrary position." In Bryan Bank v. Carter, 57 Ga. App. 519 (196 S.E. 228), Judge MacIntyre, speaking for the court, quoted from the above case approvingly, and it would seem, *Page 177 therefore, that this principle of law is well established. To the same effect generally, see Butler v. Tifton, Thomasville Gulf Ry. Co., 121 Ga. 817 (49 S.E. 763).
2. We come next to consider whether the court erred in overruling the motion to strike paragraph 2 of the defendant's answer regarding no consideration. We do not think that the court erred. Counsel for the plaintiff rely on the cases of Blalock v. Brantley, 17 Ga. App. 579 (87 S.E. 836); Lunsford,Maxwell Co. v. Malsby Avery, 101 Ga. 39 (28 S.E. 496);Mound City Roofing Tile Co. v. Walker, 33 Ga. App. 207 (2) (125 S.E. 863). We have set out verbatim paragraph 2 of the defendant's plea. The facts in the instant case distinguish it from the facts in the cases cited by the plaintiff above. The answer of the defendant as to no consideration and the petition should be submitted to a jury for determination. The court did not err in overruling the motion to strike paragraph 2 of the defendant's answer to the effect that the notes were based on no valid consideration.
We have not dealt specifically with the various assignments of error in the special grounds because they are controlled by what we have set forth in the opinion.
The court erred in overruling the motion for a new trial on the general grounds with reference to the plea of res judicata, and the case is reversed on the general grounds and remanded for a trial on the second portion of the plea of the defendant that the notes are without consideration.
Judgment reversed, with direction. MacIntyre, P. J., andTownsend, J., concur.