SOUTH AMERICA MANAGERS, INC. v. REEVES et al., 220 Ga. 493, 140 S.E.2.d 201 (1964)

Supreme Court of Georgia

Status: ARGUED

Docket Number: 22648

Parts: QUILLIAN, Justice.

Linked as:

Summary

Certiorari to the Court of Appeals of Georgia -- 110 Ga. App. 49 (137 SE2d 700).

Summary

Certiorari to the Court of Appeals of Georgia -- 110 Ga. App. 49 (137 SE2d 700).

Text

Virgil H. Smith, Albert E. Mayer, Ted D. Spears, contra.Edenfield, Heyman & Sizemore, Wm. H. Major, for plaintiff in error.

Where it appears that at least two issues were involved in a former ruling on a "motion to strike" the defendant's answer and the pleadings and order thereon do not show that the particular matter involved in a demurrer ruling was necessarily or actually determined in the former ruling, the law of the case is not settled as to such matter.

James B. Reeves brought suit against Charlie Wallace d/b/a Wallace Insurance Co. and South America Managers, Inc., seeking to recover upon a policy of insurance issued by South America through the agent, Wallace. The petition alleged that South America was an unauthorized insurance carrier and hence both South America and Wallace were liable for the amount of the loss. The defendants filed answers denying the material allegations of the petition, and demurrers, both general and special. The plaintiff then filed what he denominated a "motion to strike" the answer of South America, alleging that South America was an unauthorized insurer doing business without proper authority and that, since the defendant corporation had not complied with conditions precedent, imposed by law (see Ga. L. 1960, pp. 289, 382; Code Ann. 56-610), prior to the filing of defensive pleadings in this action, the defensive pleadings filed by South America were of no effect and should have been stricken. The motion coming on for hearing, the trial judge issued an order reciting: "after hearing evidence and argument it is ordered that the motion be, and the same is hereby overruled."

At the hearing on the demurrers to the plaintiff's petition the trial judge sustained two grounds of the defendants' demurrers, to wit: that there was a misjoinder of causes of action and a misjoinder of parties defendant.

The plaintiff excepted to the order overruling his motion to strike and to the judgment sustaining the two grounds of demurrer and dismissing the petition. The Court of Appeals, Reeves v. South America Managers, 110 Ga. App. 49 (137 SE2d 700), held, as to the motion to strike: "No evidence is contained in the record as to why such motion to strike was overruled and the ruling made by the trial court was only that the motion to strike should be overruled. Such ruling merely established that the insurer's defensive pleadings should not be stricken on the grounds made by such motion. And without a brief of the evidence it must be assumed that the trial court correctly overruled the motion." The Court of Appeals reversed the judgment sustaining the two grounds of demurrer and answered South America's contention that the ruling on the motion to strike was the "law of the case" that it was not an unauthorized insurer by holding: "Such was not the effect of the judgment of the trial court for such judgment merely established that the defensive pleadings should not have been stricken on the grounds made by the plaintiff's motion." The court then went on to say that, even if the trial court had determined that South America was not an unauthorized insurer, still on demurrer such fact would not be on the face of the petition and could not be considered.

In its application for certiorari South America assigned error on the ruling that, even if the court, in passing upon the plaintiff's motion to strike the defendant's answer, had determined the insurer was not unauthorized (thus "authorized") it could not consider such previous ruling in passing upon the petition's averment that South America was an unauthorized insurer. However, no exception was taken to the portion of the decision holding that the prior ruling by the trial judge was not the "law of the case" as to whether South America was authorized or not.

The rule is well established that pleadings contradicting anything which must be judicially noticed are nugatory. Griffin v. Augusta &c. R., 72 Ga. 423; Bennett v. Public Service Comm., 160 Ga. 189, 192 (127 SE 612); Rome R. &c. Co. v. Keel, 3 Ga. App. 769 (2) (60 SE 468); Central of Ga. R. Co. v. Lawley, 33 Ga. App. 375 (3) (126 SE 273). Furthermore, a court may take judicial notice of its own records in the immediate case or proceedings before it. Branch v. Branch, 194 Ga. 575, 577 (22 SE2d 124); Roberts v. Roberts, 201 Ga. 357, 359 (39 SE2d 749); Woodruff v. Balkcom, 205 Ga. 445 (2) (53 SE2d 680). Nevertheless, the prerequisite factor in resolving the instant problem confronting us is whether a determination of the insurer's status was made on the previous ruling. For unless the "law of the case" was so established, the efficacy to be given the doctrine of judicial notice when passing on the demurrers would not be relevant. The contentions of counsel for South America presuppose that the overruling of the motion to strike determined its status as an authorized insurer and fixed the "law of the case" in that regard. However, the Court of Appeals squarely ruled on this point, finding that the prior judgment did not settle the "law of the case" as to the insurer's status. No direct exception was taken to that particular ruling.

Moreover, since we, like the Court of Appeals, are unable to ascertain from the record, minus any brief of evidence as to what transpired on the hearing of the motion to strike, whether the trial judge found South America to be authorized or unauthorized, this case is controlled in principle by Gunnin v. Car- lile, 195 Ga. 861 (25 SE2d 652). In that case this court had before it the question of whether a prior adjudication for the defendant conclusively settled the question of title in the case. The defendant introduced the pleadings and the judgment alleged to preclude the present action but no evidence was offered as to the issues formerly adjudicated. The former pleadings showed the petition to raise two points: (1) as to title being in the plaintiff and (2) as to cutting and removal of timber by the defendant; the answer (1) asserted title in the defendant and (2) denied the allegations as to cutting and removal of the timber. This court held: "As applied to the instant record, the verdict for the defendant in the former case may, for aught that is shown, have been based upon a finding that she [the defendant] did not cut and remove any of the timber as alleged, and not on any finding as to title. It does not appear that the issue as to title was necessarily or actually determined, and it was incumbent upon her to remove the uncertainty and to show that this issue was actually determined in her favor, before she would be entitled to a verdict in the instant case upon the theory of res adjudicata or estoppel." Gunnin v. Carlile, 195 Ga. 861, 863, supra. Justice Bell quoted with approval the rule laid down in Draper v. Medlock, 122 Ga. 234 (1) (50 SE 113, 69 LRA 483, 2 AC 650): "Where a judgment is pleaded as an estoppel, the burden is upon the party relying upon the estoppel to sustain the plea, by showing that the particular matter in controversy was necessarily or actually determined in the former litigation; and if it appear, from the record introduced in support of the plea, that several issues were involved in such litigation, and the verdict and judgment do not clearly show that this particular issue was then decided, before such plea can be sustained this uncertainty must be removed by extrinsic evidence showing that such matter was then decided in accordance with the contention of the party relying upon the plea." See also McElmurray v. Blodgett, 120 Ga. 9, 15 (3) (47 SE 531); Prisant v. Feingold, 169 Ga. 864, 867 (2) (151 SE 799).

1964