Where one co-tenant sues to recover his interest in land from a third person and an adverse verdict and judgment is rendered in such action, such adverse judgment is not res judicata as to the other co-tenant.
In 1969 May Lilly Paine filed what was denominated as an "affidavit to remove intruder" from described real estate. A "counter affidavit" was filed by Clyde James Thomas and upon the hearing a verdict was directed for the defendant and a judgment rendered accordingly. Thereafter an ejectment action was filed by May Lilly Paine and Sammie Paine in which it was sought to obtain title to the described realty and possession from Clyde James Thomas. The defendant filed in addition to other defenses, a plea of res judicata based upon the judgment in the "affidavit to remove intruder" proceeding. The trial court, after considering the pleadings and evidence offered in support thereof "including the entire record" in the "affidavit to remove intruder" case, sustained the plea of res judicata after finding "the case at bar involves the same parties and subject matters that were involved" in the first case and "all matters at issue here were raised or could have been raised at the trial" of the first case. The appeal is from this judgment.
1. " 'Where a joint action for land is brought by several persons, and the evidence shows that one of them is not entitled to recover, there can be no recovery at all. The rule in such case is the same whether the action be in the statutory or fictitious form.' Burton v. Patton, 162 Ga. 610 (134 SE 603); Walker v. Pope, 101 Ga. 665 (29 SE 8); McGlamory v. McCormick, 99 Ga. 148 (24 SE 941); Hunt v. Lavender, 140 Ga. 157 (3) (78 SE 805); Powell v. Porter, 189 Ga. 440 (5 SE2d 884)." Guess v. Morgan, 196 Ga. 265, 272 (26 SE2d 424); Pope v. Beasley, 200 Ga. 656 (38 SE2d 300).
Such pleading, when considered with the remainder of the record which was introduced in evidence upon the hearing of flw defendant's plea of res judicata, authorized the judgment as to the plaintiff May Lilly Paine.
2. As to the plaintiff Sammie Paine, the plea of res judicata was improperly sustained inasmuch as under the provisions of Code 3-111, "A tenant in common need not join his cotenant, but may sue separately for his interest, and the judgment in such case shall affect only himself." The original judgment affected only May Lilly Paine, and in no way affected the rights of Sammie Paine, and while 21 of the Civil Practice Act (Ga. L. 1966, pp. 609, 632; Code Ann. 81A-121) is generally applied to the misjoinder and nonjoinder of parties defendant, since this provision makes no distinction as to parties plaintiff and parties defendant, the proper procedure would be, under the defendant's plea of res judicata, to strike the plaintiff, May Lilly Paine, as a party plaintiff and permit the action to continue between Sammie Paine and the defendant.
The judgment sustaining the plea of res judicata as to both plaintiffs was error.
Judgment reversed. All the Justices concur.