186 Ga. 296 | Ga. | 1938
In Kimbro v. Virginia & Tennessee Ry. Co., 56 Ga. 185, it was in effect held that a dismissal of a declaration on general demurrer will bar a second declaration for the same cause of action, though it contains additional allegations, if byway of amendment they could have been incorporated in the first. In Perry v. McLendon, 62 Ga. 598, Mr. Justice Bleckley said: “The effect of a judgment can not be avoided by a difference in the pleadings, when those in the first ease could and should have been as full as those in the second, though in fact they were not. No party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and, if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. It is the body of a ease, and not certain of its limbs only, that the final judgment takes hold upon.” In Fain v. Hughes, 108 Ga. 537 (33 S. E. 1012), this court ruled that a dismissal on demurrer of a petition based on the same facts bars another action on such facts, and that a second suit in such case is not maintainable merely because the plaintiff therein seeks other and further relief. In Greene v. Central of Ga. Ry. Co., 112 Ga. 859 (38 S. E. 360), a general demurrer to a petition brought for the recovery of damages was sustained. It was held that such was a bar to a second suit by the same plaintiff against the same defendant, for the same cause of action, though the grounds of negligence in the second suit were different from those embraced in the first. In Dodson v. Southern Railway Co., 137 Ga. 583 (73 S. E. 834), a suit was dismissed on general demurrer, and the judgment of dismissal was held proper as a plea in bar of a subsequent suit brought for the same cause of action, although the allegations of negligence were more complete than in the first. In the instant case there was not a single additional fact alleged that was not set up in the previous case between the, same parties. Therein lies the distinction between this case and that • of McDougald v. Maddox, 32 Ga. 63, relied on by counsel for the plaintiffs. That case arose before the passage of our uniform-procedure act, and on its first appearance in this court (17 Ga. 52), it was held, “that, actions having been instituted ai law upon each of the bonds, the remedy was ample; and that a bill filed against the principal and all the different sureties could not be entertained, there being no allegation of the insolvency of the principal.” In
Judgment affirmed.
Bussell, Chief Justice, and Atkinson, Presiding Justice, who dissent, because the ruling in the second headnote is contrary to the ruling in Glaze v. Bogle, 105 Ga. 295 (3) (31 S. E. 169).