Opinion
18149.
SUBMITTED MARCH 9, 1953.
DECIDED APRIL 13, 1953.
Equitable petition. Before Judge Paschall. Gordon Superior Court. December 12, 1952.
J. B. Langford and Ingram Tull, for plaintiffs in error.
Jefferson L. Davis, Wood Tallant, Davis Cullens and Pittman Greene, contra.
"A defendant in a suit in the superior court is bound to set up all defenses that he has to the suit, either legal or equitable, and to pray for all the relief needed in aid thereof, ordinary or extraordinary, and he can not at will decline to litigate as a defendant over these matters and bring an independent suit against his adversary, who has already brought him into court." McCall v. Fry, 120 Ga. 661, 663 ( 48 S.E. 200). The court did not err in sustaining the plea in abatement, setting forth the pendency of cases involving the same issues and against the petitioners here, and in dismissing the petition.
No. 18149. SUBMITTED MARCH 9, 1953 — DECIDED APRIL 13, 1953.
The petition of Mrs. W. L. Vaughan, Bill Vaughan, Mrs. Joe Nix, Mrs. Ralph Manning, Mrs. George Anderson, Wylie Vaughan, John O. Vaughan, Dave C. Vaughan, Taylor Vaughan, Bessie Vaughan, and Dimple Vaughan, in the Superior Court of Gordon County, against Dave N. Vaughan, alleges that there is pending in the Superior Court of Bartow County one suit brought by Dave N. Vaughan against Wiley [Wylie] Vaughan, seeking to partition a described tract of land and an accounting for the rents and profits thereon. It is further alleged that another suit by Dave N. Vaughan against all the petitioners here, seeking a partition of certain described tracts of land and an accounting for rents and profits thereon, is also pending in the Bartow Superior Court. The petition alleges various improvements and expenditures made by the petitioners, and further alleges that all of the petitioners had cultivated all of the three tracts of land involved as a unit, and that, for this reason, it would be difficult to separate the rents and profits for each separate tract. It is further alleged that for stated reasons the petitioners had title to two of the tracts of land and Wylie Vaughan had title to the tract involved in the suit against him. It is averred that it was necessary to consolidate the Bartow suits to avoid a multiplicity of actions, and that ancillary thereto a petition was being filed in Bartow Superior Court seeking to enjoin Dave N. Vaughan from prosecuting those suits first. The defendant filed a plea in abatement setting forth the pending suits in Bartow Superior Court, and, after a hearing, judgment was rendered sustaining the plea and dismissing the petition, and the petitioners except thereto.
The decisive question upon which all other issues must turn is the ownership of the lands involved. It plainly appears from the allegations of the petition that in one of the Bartow County cases this issue is between Dave N. Vaughan and Wylie Vaughan, and that none of the other parties here had any interest or claim in any of the issues there made. The other Bartow case is between all of the petitioners here and the defendant and relates to separate and distinct tracts of land. Manifestly, therefore, all evidence relevant to one of those cases would be wholly irrelevant to the other. The judgment in the case against Wylie Vaughan can have no legal effect, adversely or otherwise, upon the rights or liabilities of his mother, brother, and sisters who are the other parties here. If, as is contended in the present petition, Wylie Vaughan is the owner of the tract of land in the suit against him in Bartow County, he could not be required to account for any rents therefor, and a proper defense to that suit would require an adjudication of the issue as to the ownership thereof. Likewise, as to the other suit in Bartow Superior Court, if the petitioners here are, as they allege, the owners of the land therein involved, they could so plead as a defense, and an adjudication sustaining that plea would relieve them of any liability to account for rent. Therefore, it is apparent that the entire basis here alleged for recovery could be set forth as defenses to those actions and all rights of the parties could there be adjudicated.
It is a recognized rule of law that one may not refuse to file a defense to a pending suit against himself and then proceed to bring another action setting forth as grounds for recovery matters that should be pleaded as a defense to the pending suit. This rule was set forth by this court in McCall v. Fry, 120 Ga. 661, 663 ( 48 S.E. 200), wherein it said: "A defendant in a suit in the superior court is bound to set up all defenses that he has to the suit, either legal or equitable, and to pray for all the relief needed in aid thereof, ordinary or extraordinary, and he can not at will decline to litigate as a defendant over these matters and bring an independent suit against his adversary, who has already brought him into court." See also Hamilton v. First Nat. Bank of Rome, 180 Ga. 820 ( 180 S.E. 840); Citizens Southern Bank of Thomaston v. Barron, 181 Ga. 351 ( 181 S.E. 859); State Highway Department v. H. G. Hastings Co., 187 Ga. 204 ( 199 S.E. 793, 133 A.L.R. 1); Moore v. Robinson, 206 Ga. 27 ( 55 S.E.2d 711); Clay v. Smith, 207 Ga. 610 ( 63 S.E.2d 602); Cashin v. Markwalter, 208 Ga. 444 ( 67 S.E.2d 226).
It is stated in briefs of counsel for the plaintiffs in error that opposing counsel cited Cashin v. Markwalter, supra, and that the judgment of the lower court was predicated largely upon that decision. It is insisted by counsel that that decision is not controlling here. It should be noted however, that that case involved an action for partitioning and accounting, and it was held that a second suit could not be maintained. There the parties were apparently the same and all claimed an interest in the land sought to be partitioned, while here Wylie Vaughan is the only one of these petitioners that claims any interest in one of the tracts of land, and in this respect there is a stronger legal reason for disallowing this second suit than existed in the Cashin case.
But it is contended by counsel for the plaintiffs in error that all of the petitioners cultivated as a unit the three tracts of land involved in the Bartow court, and, for this reason, an accounting will be difficult and each of the petitioners has an interest in and will be affected in some manner by the accounting by Wylie Vaughan for the rents and profits involved in the suit pending against him alone. Such argument is illogical and has no basis in fact. Unquestionably, a recovery in the Bartow Superior Court suit against Wylie Vaughan would in nowise affect the defendants named in the other suit, nor would a recovery against the mother and her children in the suit against them affect in any manner the issues involved in the suit against Wylie alone. Therefore, no reason whatever exists for confusing, in the present suit, the separate issues relating to separate tracts of land and affecting different persons involved in the two cases.
The further argument is here advanced that the present action will avoid a multiplicity of actions, and, for this reason, is authorized under the law. To so contend is to misinterpret the rule allowing consolidation of suits to avoid a multiplicity of actions to make it embrace a reduction of the number of independent suits on separate issues and affecting different parties. Of course, the number of suits triable at a given term could be reduced by consolidating all pending suits into one, but such mixing of issues and parties would accomplish no good and would, on the contrary, work all manner of evil in rendering more difficult a discovery of the truth and administration of justice. There is nothing in the present petition which takes it out of the general rule that a party sued may not refuse to file his defense and bring another action setting forth grounds that would constitute a proper defense to the pending action. Accordingly, the court did not err in sustaining the plea in abatement and in dismissing the petition.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.