Sheldon & Company v. Emory University

Supreme Court of Georgia1937-05-18No. No. 11784

184 Ga. 440

Summary · law.co

Holding. The judgment dismissing the second petition was affirmed because the second suit against Emory University in its individual capacity was not a valid renewal of the original suit against it as trustee, as the parties defendant and the relief sought were substantially different, and regardless of which theory applied, the statute of limitations had not been tolled.

Sheldon & Company brought suit against Emory University as trustee of a beneficiary and trust, seeking judgment against the defendant only in that representative capacity and against the trust property. After dismissal on general demurrer, Sheldon filed a second petition within six months, but this time sued Emory University only in its individual capacity seeking a general judgment. The court dismissed the second suit, and Sheldon appealed.

The appellate court affirmed the dismissal on multiple independent grounds. First, the second petition was not a valid renewal of the original suit under the statute of limitations provision because it named a substantially different defendant—the trustee in the original suit versus the individual entity in the second suit—and sought relief in a fundamentally different form. Second, even if the parties were considered identical, the res judicata doctrine would bar the second suit because the general demurrer dismissal concluded not only the matters raised but all matters that could have been raised. Third, if the cause of action differed while the parties remained the same, the statute of limitations tolling provision would not apply.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Requirements for a valid renewal of a suit to toll the statute of limitations
Substantial identity of parties in successive actions
Application of res judicata doctrine to dismissals on general demurrer
Distinction between trustee capacity and individual capacity as parties

Procedural posture

Sheldon & Company appealed from a lower court order dismissing its second petition as barred by the statute of limitations, after its first petition against the same defendant in a different capacity had been dismissed on general demurrer.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jenkins, J.

1. To be a good “renewal” of an original suit, so as to suspend the running of the statute of limitations under the Code, § 3-808, the new petition must be substantially the same both as to the cause of action and as to the essential parties. Ford v. Clark, 75 Ga. 612; Cox v. Strickland, 120 Ga. 104 (5), 109 (47 S. E. 912, 1 Ann. Cas. 870); Cox v. East Tenn., Va. & Ga. R. Co., 68 Ga. 446, 448; Atlanta &c. Ry. Co. v. Wilson, 119 Ga. 781, 784 (47 S. E. 366); Crane v. Barry, 60 Ga. 362; Floyd v. Boyd, 16 Ga. App. 43 (4), 46 (84 S. E. 494). The rule requiring substantial identity of essential parties has been held not to be violated: where a party in the later case is the successor trustee, or other representative, of an original party who occupied the same position as plaintiff or defendant; or where the first suit was dismissed for nonjoinder of one of the representatives of the estate, who is added as a party to the second suit; or where the first suit is brought against two defendants, dismissed as to both, and renewed as to only one; or where the difference is merely as to nominal or unnecessary parties. See Moody v. Threlkeld, 13 Ga. 55 (5); Clark v. Newsome, 180 Ga. 97 (178 S. E. 386); Atlantic Coast Line R. Co. v. Knapp, 139 Ga. 422 (2) (77 S. E. 568); Greenfield v. Farrell Heating &c. Co., 17 Ga. App. 637 (87 S. E. 912). Where, as in this case, a former petition was brought, under the Code, § 108-501 et seq., against a defendant as trustee of an alleged beneficiary and trustee, praying for a judgment against the defendant only in such representative capacity and against the described trust property, a petition brought within six months after a dismissal of the -first, against the defendant only in its individual capacity, praying only for a general judgment against it, is not. a renewal such as will toll the statute of limitations, since it involves a substantially different defendant and shows no exception to the general rule as to the identity of parties.

No. 11784.

May 18, 1937.

2. Even if the parties defendant and the cause of action could be accounted the same, the court was correct, under the doctrine of res judicata, in dismissing the present suit after the former action had been dismissed on general demurrer, since under tha!t doctrine the former judgment was conclusive, not only as to all matters that were put in issue, but as to all matters that might have been put in issue in the previous proceeding. Code, § 110-501; Dodson v. So. Ry. Co., 137 Ga. 583, 585 (73 S. E. 834); Greene v. Central of Ga. Ry. Co., 112 Ga. 859 (38 S. E. 360); Moody v. Williams, 157 Ga. 576, 578 (122 S. E. 56).

3. If the parties defendant should be -accounted the same, but if the cause of action be taken as different, then and in that event the doctrine of res judicata would not have application; and under the somewhat different rule applicable to estoppel by judgment, only such matters would be precluded by the former judgment as necessarily had to be adjudicated in order for the previous judgment to have been rendered, or else such matters within the scope of the previous pleadings as might or might not have been adjudicated, but are shown by aliunde proof to have been actually litigated and determined. In such a case, where the cause of action is not the same, the order dismissing the second petition would nevertheless be correct, not on the theory that the former adjudication was conclusive, but for the reason that the provisions of the Code, § 3-808, with reference to the tolling of the statute of limitations by the renewal of a suit, would not apply where the former suit was based on a different cause of action.

4. Thus, under the preceding rulings, if either the parties or the cause of action were not the same, the provisions of the Code, § 3-808, as to a renewal of a suit would not operate to toll the statute; and if both the parties defendant and the cause of action were the same, the former judgment would be conclusive. Under any of the three possible contentions, the result would be the same.

Judgment affirmed.

All the Justices concur.

Walter S. Dillon, for plaintiffs.

Tye, Thomson & Tye, for defendant.