Dissenting Opinion
dissenting. I dissent from the majority opinion because I do not believe these cases are moot. Where a defendant files a motion for summary judgment against a plaintiff, and then files another motion for summary judgment аgainst the same plaintiff, and both motions for summary judgment grow out of the same case in the same court, if either motion for summary judgment is moot I believe it is the second motion and not the first.
Here three suits for damagеs were filed by separate plaintiffs against one defendant in the lower court. The defendant filed sеparate motions for summary judgment against each plaintiff. These motions were heard in the lower сourt and denied as to the second count of each complaint, and defendant, hy timely permissiоn of the trial court, then appealed to this court. Before this court decided these three mоtions for summary judgment, the defendant filed a second motion for summary judgment against each plaintiff, and aftеr a hearing in the trial court, the defendant again, by permission of the trial court, appealed the last three cases to this court.
I cannot agree with the majority in its conclusion that the first cases are moot. I find no law that suggests one party may bring a motion for summary judgment against his adversary, and while said motion is pending, bring another motiоn for summary judgment against the same adversary in the same case. It would constitute harassment of a party if his opponent could bombard him with separate motions for summary judgment each time he desired to rаise a new point, and thus require such opponent to defend against multiple motions for summary judgment at thе same time. Nor is there much excuse for allowing a second motion for summary judgment by the same party, еven after the first motion has been decided unfavorably, although there are certain pre
In 6 Moore’s Federal Practice 2103, § 56.08, it is stated that: "The court may deny a defendant’s motion for summary judgment without prejudice tо its renewal at trial.” And in §56.14 [2] it is stated: "And in the exercise of a sound discretionary power the court, in a prоper case, may deny a motion for summary judgment without prejudice to a later renewal — even tо a renewal at trial; . . .” Citing the foregoing authority, this court, in Suggs v. Brotherhood of Locomotive Firemen &c.,
And again in Stein Steel &c. Co. v. Briggs Mfg. Co.,
The following Georgia statute applies to suits and not to motions for summary judgmеnt, but I believe the reasoning involved is likewise applicable to motions for summary judgment. Code § 3-601. "Plaintiff required to еlect between suits. No suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if
In the enactment of Code § 3-601 our lawmakers clearly expressed themselves to the effect that a litigant should not be subjected to two suits for the same cause of action at the same time, and clearly announced as to which one of these suits would be good and which would be bad, to wit: the first suit would be good and the last suit would be bad.
Lead Opinion
Where motions for summary judgment by defendants as to a two-сount petition are overruled and an appeal by the defendants is entered to such ruling and pending the appeal another motion for summary judgment based upon additional evidence, together with the same evidence as presented on the prior motions, is presented by these same defеndants and other defendants and is sustained as to the first count of the petition and overruled as to the second count, and an appeal is entered by the defendants as to the overruling of the motion for summary judgment as to the second count of the petition (case numbers 45908, 45910 and 45912) and cross appeals are entered by the complainant (case numbers 45909, 45911 and 45913) as to the ruling sustaining the motions for summary judgment as to the first count of the petition, the appeals entered to the first motions for summary judgment have become moot. Accordingly, these appeals must be dismissed.
Appeals dismissed.