The issues raised by the defendant's counter-affidavit to the dispossessory-warrant proceeding had not been previously adjudicated, and he was not estopped to plead them.
DECIDED JULY 12, 1949. REHEARING DENIED JULY 27, 1949. On January 22, 1948, James E. Flynn, sued out a dispossessory warrant, in the Civil Court of Fulton County, against George W. Merck, as a tenant failing to pay rent and holding over and beyond his term. Instead of filing his counter-affidavit at that time, Merck petitioned the Superior Court of Fulton County, praying that Flynn be enjoined from prosecuting the dispossessory proceeding, and that other persons named be likewise enjoined from acting under the proceeding. This petition was filed at some time during the month of January, 1948, as a judge of the superior court of January 26, 1948, issued a rule nisi and restraining order. The material allegations of Merck's petition for injunction were these: "5. Petitioner shows that he is not a tenant of the said James C. [E?] Flynn; that the relationship of landlord and tenant does not exist between them and has never existed between petitioner and the said James C. Flynn, or anyone else. 6. That your petitioner has been in possession of the property referred to in said notice [the dispossessory-proceeding] since 1932 under a contract between petitioner and John C. Flynn, under which said contract your petitioner was to reside upon said property and look after the same for the said John C. *Page 760 Flynn under a contract and agreement between them that for petitioner's services in doing so the said John C. Flynn would, by deed or will, vest your petitioner with the fee-simple title to one-half undivided interest therein, provided your petitioner would continue to reside upon said property until such time as the said John C. Flynn decided to sell said property, or until his death. Petitioner shows that under said contract he has remained upon said property since the year 1932, and has performed valuable services in caring for the same, protecting the timber growing thereon and generally in looking after said property during the absence of the said John C. Flynn, who resided in the State of New York and depended upon petitioner for the rendition of such services. 7. Petitioner shows that the said John C. Flynn was the owner and holder of the said fee-simple title to said property at the time of his death, which occurred sometime during the year 1945, and that the only right the defendant, James C. Flynn, could have in said property is as an heir at law of the said John C. Flynn." The other allegations of the petition deal with averments generally present in petitions for injunction or equitable relief, and an additional allegation that the petitioner, due to his poverty, is unable to make bond and defend the dispossessory- warrant proceeding.
Flynn demurred to this petition for injunction. One ground, among others, was "that the plaintiff has a complete and adequate remedy at law by giving bond and counter-affidavit, and the allegation that he is insolvent raises no point or contention or question of fact for an injunction." Flynn's demurrer was over-ruled by the superior court. He appealed to the Supreme Court for a review of the ruling and that court reversed the action of the superior court in overruling the demurrer. The date of the order of the superior court overruling the demurrer was June 23, 1948. The date of the decision of the Supreme Court reversing the action of the superior court was October 13, 1948. On October 27, 1948, the judgment of the Supreme Court was made the judgment of the superior court.
On November 2, 1948, Merck filed in the Civil Court of Fulton County his counter-affidavit in which he averred that he is not a tenant of James C. Flynn as alleged in the dispossessory warrant, that his term has not expired, and that he is in possession *Page 761 under a claim of ownership. On the same day on which the counter-affidavit was filed Flynn made a motion to dismiss the counter-affidavit upon the ground that the decision of the Supreme Court had, in the suit for injunction, adjudicated the questions presented by the counter-affidavit, and that Merck is estopped by the decision of the Supreme Court, from asserting any claim or right, title, or interest in the real estate in question. The Civil Court of Fulton County on November 15, 1948, sustained the motion to strike the counter-affidavit and gave Merck ten days within which to vacate the property. It is upon exception to this latter order of the Civil Court of Fulton County that this case comes to this court. "A judgment rendered in litigation between the same parties is not conclusive in a subsequent suit between them on a different cause of action, except as to issue actuallymade and determined in the former litigation." Worth v.Carmichael, 114 Ga. 699 (40 S.E. 797); Acree v. Bandy,20 Ga. App. 133 (92 S.E. 765); Price v. Carlton, 121 Ga. 12 (48 S.E. 721, 68 L.R.A. 736); Draper v. Medlock,122 Ga. 234 (50 S.E. 113, 69 L.R.A. 483, 2 Ann. Cas. 650);Callaway v. Irvin, 123 Ga. 344 (51 S.E. 477); Farmer v.Baird, 35 Ga. App. 208 (132 S.E. 260); Security Ins. Co. v. Eakin, 41 Ga. App. 257 (152 S.E. 606); Capps v. ToccoaFalls Light c. Co., 46 Ga. App. 268 (167 S.E. 530); Cravey v. Druggists Co-Op. Ice-Cream Co., 66 Ga. App. 909 (19 S.E.2d, 845). Where such a judgment is pleaded in estoppel, "in order for the former decision to be conclusive, it must have been based, not merely on purely technical grounds, but at least in part on the merits where under the pleadings they were or could have been involved." Sumner v. Sumner, 186 Ga. 390 (197 S.E. 833); Thompson v. Thompson, 199 Ga. 692 (35 S.E.2d 262); Morris v. Georgia Power Co., 65 Ga. App. 180, 185 (15 S.E.2d, 730); Loveless v. Carten, 64 Ga. App. 54 (12 S.E.2d 175).
Applying the foregoing rules to the facts of the instant case, the issue of Merck's title or the validity of the contract or agreement under which he claimed title in the petition for injunction and in the counter-affidavit to the dispossessory-warrant proceeding *Page 762 had not been adjudicated by the decision of the Supreme Court (Flynn v. Merck, 204 Ga. 420, 49 S.E.2d 892), which was introduced in evidence. The Supreme Court in that case reversed the ruling of the superior court for its action in overruling the defendant's (Flynn's, in that case) demurrer to the petition for injunction upon two grounds only, as stated in the opinion: "(1) that an adequate remedy at law was available [by filing the counter-affidavit in the dispossessory-warrant proceeding], and (2) that no ground for equitable relief is alleged." The court elsewhere stated in the decision, "There is no prayer for specific performance, cancellation, or decree of title." In the Supreme Court decision, no question of title could possibly have been adjudicated under the state of the pleadings as they existed in that court. The Supreme Court simply held that Merck's petition for injunction would not lie to enjoin the dispossessory proceeding. Under the state of the pleadings as they exist after the filing of the counter-affidavit, the question is raised whether Merck is in possession of the premises under a valid claim of ownership. The Civil Court of Fulton County erred, therefore, in sustaining the motion to strike the counter-affidavit as having been previously adjudicated.
Judgment reversed. Gardner and Townsend, JJ., concur.