39 Ga. App. 476 | Ga. Ct. App. | 1929
Hood sued Cooledge in the superior court of Eulton county for $58.89, alleged to be a balance due on an open account; the contention of Hood being (as disclosed in a later suit) tha.t Cooledge employed him to superintend a plumbing job and agreed to pay him “twenty-five per cent, on all fixtures and plumbing work,” and that there remained a balance of $58.89, due on said contract. Thereafter, and before the trial of Hood’s case in the superior court, Cooledge brought suit against Hood in the municipal court of Atlanta, alleging that Hood was due him $100 as overpayment on the same transaction ;'Cooledge’s contention being that his contract with Hood was to pay Hood twenty per cent, of the labor and ten per cent, of the fixtures on said plumbing job, and that he had overpaid Hood in the sum of $100, which Cooledge sought to recover. To the suit in the municipal court Hood filed a plea in abatement, setting up that there was a “suit pending between the same parties over the same subject-matter, in a court of competent jurisdiction,” and prayed that the case in the municipal court abate until the case pending in the superior court be tried or disposed of. The trial judge in the municipal court “denied” the plea in abatement, and upon the trial the jury rendered a verdict in favor of Cooledge. A motion for a new trial was overruled. Hood appealed the case to the appellate division of the municipal court, and the appellate division affirmed the judgment of the trial judge. Hood then carried the case to the superior court by certiorari, and that court overruled the certiorari. Hood then brought the case to this court, assigning error on the overruling of his certiorari.
The certiorari alleges various errors, but under our view of the
While usually and naturally, when a plea in abatement is invoked on the ground of lis pendens, the same party is plaintiff in both cases as a result of instituting twc suits for the same cause of action, we have found no law and can ascribe no reason why the same party need necessarily be the plaintiff in both cases, in order to make the plea sustainable. The statute does not specify
The statute quoted above as being controlling in this ease seems to have been the law of our State since 1863. In Wilson v. Atlanta, K. & N. Ry. Co., 115 Ga. 174 (41 S. E. 699), the Supreme Court says: “A statement of the Connecticut rule, substantially the same as that set forth in the language just quoted, is embraced in our Civil Code, § 5094 [§ 5678 of the Code of 1910] which reads as follows: ‘A former recovery, or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, shall be a good cause of abatement; but if the first action is so defective that no recovery can be possibly had, the pendency of a former suit will not abate the action/ As this language is identical with that appearing in the Code of 1863, § 3407, it would seem that the codifiers intended to adopt the Connecticut rule.” In Eppinger v. Seagraves, 141 Ga. 639 (2) (81 S. E. 1035), it was held: “Both actions sought recovery of land and mesne profits, and were between the same parties. The judge was authorized to find that they referred to the same land. While there was some difference in the character of the title alleged, and in the former suit there was a prayer that title be decreed to be in the plaintiff, this was not a substantial variance, the" former suit being sufficiently broad to comprehend all of the relief sought in the latter. Under these circumstances the judge properly sustained the plea in abatement.” It will be noted that in that case the actions “referred to the same land.” In the instant case the actions referred to the same contract. In Heath v. Bales, 70 Ga. 634, the Supreme Court said: “The pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, is a good cause of abatement; but if the first action is so defective that no recovery can possibly be had, the pendency of a former suit will not abate the action. Code, 3476. See in connection lb., see. 2894, in which a suitor is put to his election where two actions are commenced and prosecuted simultaneously for the same cause; but if commenced at different times, the pendency of the former is a good defense to the latter. These rules are applicable also to torts, and the only exception which the code makes to them is in cases of attachments pendente lite, and in
The controlling issue in each of these eases was the same, viz., whether Cooledge agreed to pay Hood 25% on labor and fixtures, or whether he agreed to pay him 20% on labor and 10% on fix
The trial judge erred in denying the plea in abatement; all proceedings thereafter were nugatory; and the judge of the superior court erred in overruling the certiorari.
Judgment reversed.