Opinion
31992.
DECIDED MAY 22, 1948. REHEARING DENIED JUNE 5, 1948.
Trover; from Fulton Civil Court — Judge Carpenter. February 5, 1948.
Rache Bell, H. M. Henderson, for plaintiff.
W. Owen Slate, Charles W. Bergman, for defendant.
The evidence demanded a verdict in favor of the plaintiff, and the court erred in denying her motion for a new trial.
DECIDED MAY 22, 1948. REHEARING DENIED JUNE 5, 1948.
William Thomas Carithers sued Thelma M. Carithers for divorce on January 2, 1946. The wife filed her answer and cross-bill on May 7, 1946, praying for a divorce, alimony and attorney's fees, and that she be awarded a certain automobile bought by her out of her earnings, and in the possession of the plaintiff. After service of the cross-bill on the plaintiff he amended his petition by charging the defendant with certain wrongful conduct but made no reference to the automobile. The defendant amended her answer and cross-bill on October 16, 1946, in which she prayed for permanent alimony and counsel fees "in addition to the . . automobile prayed for in the original answer and cross-petition." The divorce case was tried on November 18, 1946, and a total divorce granted to both parties. The verdict also provided: "The automobile . . referred to in the petition is awarded to the defendant." Thereupon, the court entered a judgment and decree providing in part that "the automobile . . referred to in the petition and answer are awarded and decreed to belong to the defendant." The plaintiff in the divorce suit appealed from the judgment rendered therein in so far only as the automobile was decreed to be the property of the defendant. The judgment of the lower court was affirmed by the Supreme Court on July 10, 1947. See Carithers v. Carithers, 202 Ga. 596 ( 43 S.E.2d, 503). It appears from the decision of the Supreme Court that the husband did not deny possession of the car, but sought to prove that it was his, and the court said "Conceding, but not holding, the necessity of proof of possession at the time of the trial, the jury was authorized to infer from the evidence that the plaintiff was in possession of the car."
On December 12, 1946, after the verdict and decree in the divorce suit awarding the automobile to the wife, and pending the appeal to the Supreme Court from that judgment, the wife filed this trover suit as Thelma Maddox, her maiden name which had been restored to her, against her former husband, William T. Carithers, for the automobile. The defendant answered denying that he was in possession of the automobile, and setting up that he had sold it on or about June 11, 1946, delivering possession thereof to the purchaser, since which time it had not been in his possession. Upon the trial of the trover suit the record in the divorce case was introduced in evidence, including the judgment and decree awarding the automobile to the plaintiff. The plaintiff testified that she made demand on the defendant for the automobile thirty days after the divorce when the car was granted to her, and that the defendant told her he had sold it but did not know to whom he had sold it. The defendant testified that he sold the car around June 10 or 11, 1946 (while the divorce suit was pending), to Peachtree Motors Incorporated, since which time it had not been in his possession. The court rendered judgment for the defendant. The plaintiff's motion for new trial on the general grounds only was overruled and she excepted.
We think this case is controlled by principles of law as to the conclusiveness of judgments. "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue . . in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501. "A judgment shall be admissible between any parties to show the fact of the rendition thereof; between parties and privies it is conclusive as to the matter directly in issue, until reversed or set aside." Code, § 38-623. When the defendant in this trover suit sued the plaintiff herein for divorce, and she filed her cross-bill claiming title to the automobile here involved, the question of title was adjudicated by a court of competent jurisdiction, without objection by either party, and the judgment awarding the automobile to the wife was affirmed by the Supreme Court. We think that the judgment rendered in the other case, where the issue as to the title of the automobile was directly made, is conclusive on that question in this case. The testimony upon the trial of the divorce case shows that both parties thereto were claiming title to the automobile, and that issue was the only point involved in the appeal to the Supreme Court. When these facts appeared, title and the right of possession were shown to be in the plaintiff, and she was entitled to recover.
The husband could not, as between himself and his wife, sell the automobile during the pendency of the divorce case and thus prevent the wife from recovering the property or its value in this action. If the husband did sell the automobile as contended by him, a contention he did not make on the trial of the divorce case, he did so at his own peril; and such sale was a conversion which made it unnecessary for the plaintiff to show possession by the defendant at the time of the filing of her suit. Hudson v. Gunn, 20 Ga. App. 95 (1b) ( 92 S.E. 546); Planters Warehouse v. Sims, 35 Ga. App. 212 (2) ( 132 S.E. 252); Chambless v. Livingston, 123 Ga. 257 (2) ( 51 S.E. 314).
The court erred in finding in favor of the defendant, and the plaintiff's motion for new trial should have been granted.
Judgment reversed. Sutton, C. J., and Felton, J., concur.