The petition contains essential allegations which were not in issue in the former suit, and which, under the rules of law, could not have been put in issue. The trial court erred in overruling the demurrer to the plea of res judicata, and in dismissing the petition.
Other litigation involving the Congregational Methodist Church of East Rome was before this court in Smith v. Kelly, 20& Ga. 233 (65 S. E. 2d, 795). It was there said, in affirming a judgment of the trial court, which sustained a general demurrer to the original petition, and dismissed the action: "The constitution and laws of the church organization are not pleaded or made a part of the petition; nor are facts alleged sufficient to enable a court of equity to determine which of the contending factions may have within its group the properly elected and qualified trustees as successors in trust of the church property. Jurisdiction to determine who are the duly constituted trustees of the church organization rests with the ecclesiastical forum of the organization, and not with a court of equity."
Thereafter, different church members filed the present petition, which set forth the constitution and laws of the church organization, and alleged further that in August, 1952, after the judgment in the first suit had been affirmed by this court, the ecclesiastical forum of the organization determined that the defendants were no longer members of the conference or the church, and had no right to the church property, and that the petitioners were members of the church and entitled to the church property.
The defendants filed a plea of res judicata. The exceptions are to judgments, (a) overruling a demurrer to the plea of res judicata, and (b) sustaining such plea and dismissing the present action.
"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, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, 110-501.
The present petition alleges that the ecclesiastical forum of the church has determined that the defendants are no longer members of the conference or of the church. This action by the ecclesiastical forum was subsequent to the judgment in the former case, and consequently these facts were not in issue, and under the rules of law could not have been put in issue in the former action. Smith v. Kelly, 208, Ga. 233 (65 S. E. 2d, 795). The trial court erred in overruling the demurrer to the plea of res judicata, and in dismissing the petition.
Under the foregoing ruling, it is not necessary to decide whether or not the present petitioners, none of whom were named as parties in the former suit, are in law in privity with the former petitioners, as contended by the defendants.
Judgment reversed. All the Justices concur, except Atkinson, P. J., not participating.