1. Though a person may be interested in the subject-matter of a suit in the trial court, which renders a judgment favorable to his interest, he is not a necessary party defendant in a writ of error to this court which assigns error on such judgment, where such interested person was not a party to the suit in the trial court at the time the judgment complained of was entered.
2. The defendant's amendment, setting up a former judgment between the parties or their privies, was not subject to any of the objections urged by the plaintiff.
3. Where a defendant files a plea of res adjudicata, he assumes the burden, and must show the truth to the court and jury; and where there is nothing in the record to show any admission by the plaintiff of the truth of the plea, the trial court could not, without proof, take judicial cognizance of the former judgment in another case between the parties and enter an order sustaining the plea and dismissing the case.
The exception here is to a judgment sustaining the defendant's plea of res adjudicata and dismissing the case.
The petition as amended was a suit in equity, filed by Mrs. Josephine Salter on February 25, 1950, against Z. A. Littlejohn, Marshal of the City of Americus, S. R. Heys, as administrator of the estate of Arthur B. Salter, and Mrs. W. R. Drane, in three counts, wherein she sought to set aside and cancel certain tax deeds executed by the city marshal, conveying a life interest of the plaintiff in certain real estate; for a declaration of the right of the plaintiff to redeem the property; for a decree setting aside, on the ground of fraud, certain provisions of a court decree in favor of Arthur B. Salter, now deceased; and for other equitable relief, as well as to set aside a deed from Mrs. W. R. Drane to Arthur B. Salter.
1. The defendant in error, S. R. Heys, as administrator of the estate of Arthur B. Salter, has filed a motion to dismiss the writ of error because Mrs. Arthur B. Salter and Harry Kent Salter, heirs at law of Arthur B. Salter, are not parties to the writ of error; and the defendants in error being only nominal parties and having no substantial interest in the subject-matter of the litigation, a decision in this case would settle nothing as to the absent parties. The record shows that Mrs. Arthur B. Salter and Harry Kent Salter, though originally parties to this suit, were stricken from the case by the plaintiff before the court entered its order sustaining the plea of res adjudicata and dismissing the case.
Though a person may be interested in the subject-matter of a suit in the trial court, which renders a judgment favorable to his interest, he is not a necessary party defendant to a writ of error to this court which assigns error on such judgment, where such interested person was not a party to the suit in the trial court at the time the judgment complained of was entered. Denny v. Commercial Credit Co., 157 Ga. 702 (1) (121 S. E. 832). The two defendants named, having been stricken, could not properly be made parties to the writ of error. Adams v. Georgia Ry. & Electric Co., 142 Ga. 497 (83 S. E. 131). The judgment complained of is the order sustaining the plea of res adjudicata filed by the administrator. The interest of the administrator of the estate of Arthur B. Salter, in upholding the judgment in his favor, is not that of a nominal party defendant. The motion to dismiss is denied.
2. A plea of res adjudicata, as against a general demurrer, is sufficient where it alleges that the same issues have been actually litigated and determined in a prior action between the same parties or their privies. Phillips v. Hightower, 190 Ga. 785 (2) (10 S. E. 2d, 854); Carten v. Loveless, 192 Ga. 715 (16 S. E. 2d, 711). Such plea, being in the nature of a plea in bar and not a dilatory plea, need not be filed at the first term or on the appearance day of the case ( Hill v. Cox, 151 Ga. 599, 107 S. E. 850); and the fact that the plea was set up by way of amendment to an answer and not by a separate and independent pleading does not render it subject to objection. It is not required that all the parties on the respective sides of litigation of the two cases must have been the same, but it is sufficient, as to the identity of the parties, if those by and against whom the defense of res adjudicata is invoked in the later case were real parties at interest or privies to them as to the controversy in the former case. Crider v. Harris, 183 Ga. 695 (189 S. E. 519); Mitchell v. Turner, 190 Ga. 485 (9 S. E. 2d, 621); Darling Stores Corp. v. Beatus, 199 Ga. 215 (3) (33 S. E. 2d, 701). It is not a valid objection to the allowance of an amendment setting up a plea of res adjudicata that a portion of the judgment sought to be pleaded as a bar in the present action is void because of fraud, and because the plaintiff in the current action is seeking to set aside a portion of such decree, where the record and judgment pleaded do not show on their faces that the judgment is void by reason of fraud. This would be a matter of defense on the trial of the plea, but is not a good ground of objection as to the allowance of the plea.
The issue of the claim of title by A. B. Salter and by Mrs. Josephine Salter was the same in both cases, and substantially the parties were the same, S. R. Heys, the administrator, being in privity with A. B. Salter.
The objections of the plaintiff to the allowance of the plea of res adjudicata--on the grounds (a) it was not filed in time; (b) it could not be filed as an amendment to an answer; (c) it did not set up a valid defense; (d) it was not binding because between different parties; (e) the judgment was procured by fraud; (f) the court did not have jurisdiction of the subject-matter; and (g) the record shows that the issue of title was not submitted to the jury, and the court had no authority to render a judgment as to title--were properly overruled. See Phillips v. Hightower, 190 Ga. 785 (supra); Anderson v. Black, 199 Ga. 59 (33 S. E. 2d, 298, 158 A. L. R. 354).
In the brief of counsel for the defendants we are requested to examine the cases of Salter v. Salter, 80 Ga. App. 263
(55 S. E. 2d, 868), and Salter v. Salter, 81 Ga. App. 864
(60 S. E. 2d, 424); and it is stated that by so doing we will find that they conclusively show that the judgment sustaining the plea was correct. Physically we can take cognizance of these cases, but judicially we cannot take notice of them any more than the trial court could, in the absence of judicial proof, take notice of the judgment in another case between the parties in the same court. Carten v. Loveless, 192 Ga. 715
supra, (1). We are not now passing upon the sufficiency or insufficiency of the proof in support of the plea, but simply rule that the trial court had no authority to sustain the plea of res adjudicata on the basis of the pleaded record of the former suit, in the absence of uncontradicted proof of the truth of the pleaded facts.
Judgment affirmed in part and reversed in part. All the Justices concur.