81 Ga. 73 | Ga. | 1888
The only complaint made by the bill of exceptions is, that the court erred in striking the plea of the defendant in the court below of a former recovery. The court below held that, where a plaintiff instituted his suit in the county court, and the judgment in that court was for the defendant, and the plaintiff appealed to the superior court, and the case when called in the superior court was dismissed on the plaintiff’s motion, and the plaintiff afterwards brought the same action in the superior court, a plea by the defendant of a former recovery was not a
There is a difference between dismissing a case on .appeal and dismissing the appeal. When the case is ■dismissed, the whole case goes out. When the appeal is dismissed, it is an affirmance of the judgment in the court'helow, “and the rights of all the parties are the same as if no appeal had been entered.” Code, §3628. The code, as above cited, giving the plaintiff the right to dismiss his action at any time, and giving him the right to commence on payment of the costs when it has been dismissed or discontinued, we think it follows that the defendant cannot plead a judgment in the former case, which had been dismissed by the plaintiff' on appeal, to a second suit brought by the plaintiff against the same -defendant for the same cause of action.
Judgment affirmed.