The court did not err in granting a new trial.
DECIDED MARCH 15, 1940. REHEARING DENIED MARCH 30, 1940. Mrs. Williams filed in the court of ordinary a petition against the First National Bank of Atlanta and Dean J. Ratliffe, as executors and trustees of the will of E. F. Culpepper, deceased, for an accounting and settlement of Culpepper's estate. The bank filed a plea of res judicata, and an answer setting forth an accounting of said estate. The ordinary denied the prayers, and dismissed the petition. On the hearing of an appeal to the superior court the bank introduced in evidence (on the issue raised by the plea of res judicata) the entire record, including the remittitur from the Supreme Court, in a previous suit between the same parties. The judge thereupon directed a verdict sustaining the plea. Verdict and judgment thereon were entered, and the *Page 204 action was dismissed. Thereafter a new trial was granted, and that judgment is assigned as error. The only question for determination is whether the evidence demanded a verdict in favor of the plea of res judicata, in which it was alleged that the same plaintiff brought a petition against it in 1933, alleging mismanagement of the estate, and praying that the executors be removed and a receiver be appointed to take charge of and manage the estate. Various demurrers to that suit were filed, one of which was "that no cause of action in law or equity is set out therein," and another was that "petitioner has an adequate remedy at law." The court sustained the general and special demurrers to the petition in that case, and the matter was brought to the Supreme Court. In affirming the judgment on demurrer the Supreme Court said: "The defendants filed demurrers on the ground that no cause of action was set out, that plaintiff had an adequate remedy at law, that no insolvency was alleged, and that the record showed that a receiver had already been appointed."Williams v. First National Bank of Atlanta, 181 Ga. 38, 40 (181 S.E. 225). The petition as originally brought was a proceeding in equity asking for appointment of a receiver because of the alleged mismanagement of the estate by the executors. The Supreme Court merely held that no equitable cause of action was set out, it not being alleged that the executors were insolvent. A decision which holds that no equitable cause of action is set forth is not res judicata as to whether a legal cause of action might be maintained, especially in view of the fact that the demurrer points out that there is an adequate remedy at law. We think the holding by the Supreme Court that there was an adequate remedy at law, no insolvency being alleged, failed to make the rulings on demurrer in the suit brought to obtain a receiver res judicata as to the action brought on the law side of the court. The defendant, having obtained the advantage of its demurrer that "there was an adequate remedy at law," should not be allowed to plead that such holding in its favor was res judicata on the question whether there was any cause of action in law.
The plaintiff in error cites Georgia Railway Power Co. v.Decatur, 153 Ga. 329 (3) (111 S.E. 911), in support of the contention that the decision in the previous case was an adjudication that there was no legal cause of action. It was there said: "An affirmance by the Supreme Court of the order of the lower court *Page 205 granting a temporary injunction is a ruling upon all questions of law involved, though the legal contentions may not have been specifically enumerated or mentioned in the opinion of the court." It was further said that the sole question at issue upon the former hearing of this case was whether or not the contract between the Georgia Railway and Power Company and the Town of Decatur was a valid, subsisting contract. Its validity was attacked in a number of ways; and it was held that the grant of injunction, which was affirmed by the Supreme Court, was an adjudication of every attack upon the validity of the contract, even though numerous objections may not have been specifically ruled on. The facts there are very different from the allegations in the suit which is pleaded as an adjudication of the issues raised in this suit for an accounting and settlement. Judge Nisbet in Evans v. Birge, 11 Ga. 265, 272, has laid down the correct rule applicable to the points here raised, as follows: "It is very well settled that a fact which has been directly tried and decided by a court of competent jurisdiction can not be contested again between the same parties or their privies, in the same or any other court. A judgment, therefore, of a court of law, or a decree in chancery, is an estoppel to the parties thereto, and to those who are in privity with them. This is the rule. It is, however, carefully and strongly fenced. The judgment must relate to the same question, and must clearly decide it. If it came collaterally under consideration, or wasonly incidentally considered, there is no estoppel. [Italics ours.] And if the decision of the question is ascertained inferentially, by arguing from the judgment or decree and the pleadings in the case, there is equally no estoppel."
In the original action which is pleaded as an adjudication it was alleged that the plaintiff "has no adequate remedy at law, . . and is remitted to this court of equity . . for relief;" and it was prayed that the executors be removed and a receiver be appointed, and that they account for their actings and doings up to the time of the appointment of the receiver. As stated above, the court ruled that no equitable cause of action was set out. The question as to a legal cause of action was only inferentially considered. In Steed v. Savage, 115 Ga. 97 (41 S.E. 272), it was held that such a ruling does not conclude the parties as to any matter except that the petition did not authorize the equitable relief *Page 206 prayed for. In Mitchell v. Southern Bell Telephone TelegraphCo., 150 Ga. 46 (102 S.E. 346), it was held that where a general demurrer based on the ground that the plaintiff had a full and adequate remedy at law is sustained, the petitioner is not barred from pursuing his remedy at law. See Missouri StateLife Insurance Co. v. Lovelace, 1 Ga. App. 446 (58 S.E. 93); Dunton v. Mozley, 42 Ga. App. 295 (2) (155 S.E. 794).
The court did not err in granting a new trial.
Judgment affirmed. MacIntyre, J., concurs.