Opinion
19222.
SUBMITTED JANUARY 11, 1956.
DECIDED FEBRUARY 13, 1956.
Equitable petition. Before Judge Brown, Presiding. Baldwin Superior Court. October 23, 1955.
Milton F. Gardner, for plaintiff in error.
Wilbur B. Nall, Joseph B. Duke, J. A. Gilmore, Frank W. Bell, contra.
1. A defendant can not decline to litigate in a suit in which he has already been brought into court, by bringing another action, since he is bound to set up all defenses in the first suit, either legal or equitable, whether or not they involve the granting of affirmative relief. Code Ch. 37-9; McCall v. Fry, 120 Ga. 661 ( 48 S.E. 200); Clay v. Smith, 207 Ga. 610 ( 63 S.E.2d 602); Vaughan v. Vaughan. 209 Ga. 730 ( 75 S.E.2d 545).
2. The petition here, showing on its face that there was pending at the time it was filed another suit in equity brought by the defendant, seeking to enjoin the petitioners from trespassing upon the land here in controversy, was subject to general demurrer for the reason stated in the foregoing headnote, and the court erred in overruling the general demurrer.
Judgment reversed. All the Justices concur.