Altman v. FLORIDA-GEORGIA TRACTOR COMPANY

217 Ga. 292 (1961)

122 S.E.2d 88

ALTMAN v. FLORIDA-GEORGIA TRACTOR COMPANY et al.

21349.

Supreme Court of Georgia.

Submitted September 11, 1961.

Decided October 5, 1961.

Ronald F. Adams, for plaintiff in error.

Thomas, Howard & Moran, Hubert H. Howard, contra.

*294 HEAD, Presiding Justice.

1. "Damages arising ex delicto can not be set off against a cause of action arising ex contractu, but a defendant sued at law upon a cause of action arising ex contractu may, in equity, set off damages arising ex delicto, when the plaintiff is insolvent or a nonresident." Arnold v. *293 Carter, 125 Ga. 319, 325 (54 SE 177); Hilton v. Rogers, 152 Ga. 658 (111 SE 33); Welch v. Williford, 177 Ga. 837 (171 SE 768). The foregoing rule is applicable to the allegations of the petition in the present case, and the court erred in dismissing the plaintiff's petition on general demurrer.

2. Counsel for the defendant contend by brief that the sustaining of the general demurrer was proper by reason of the plea of res judicata filed by the defendant. "A former adjudication of the same cause of action, not appearing from the petition, is not ground for demurrer, but for plea." Reid v. Caldwell, 120 Ga. 718 (48 SE 191). The petition does not show any former defense to the defendant's foreclosure of the title-retention contract.

3. In the trial of a case in the superior court the court can no more take judicial notice of the record in another case in the same court, without its formal introduction in evidence, than if it were a record in another court. Glaze v. Bogle, 105 Ga. 295, 298 (31 SE 169). For the plea of res judicata to avail, the record in the former action must be introduced in evidence. Findley v. Johnson, 84 Ga. 69 (4) (10 SE 594); King v. Pate, 215 Ga. 593 (1) (112 SE2d 589). The plea of res judicata could not properly have been considered in the ruling on the general demurrer.

Judgment reversed. All the Justices concur.