Harrison v. Speidel
| Decision Date | 06 November 1979 |
| Docket Number | No. 35317,35317 |
| Citation | 261 S.E.2d 577,244 Ga. 643 |
| Parties | HARRISON v. SPEIDEL. |
| Court | Georgia Supreme Court |
Harmon, Smith & Bridges, John M. Leiter, Archer D. Smith, III, Atlanta, for appellant.
Stokes, Lazarus & Stokes, John H. Watson, Atlanta, for appellee.
Harrison, the former husband, filed a petition for declaratory judgment in the DeKalb Superior Court, seeking to clarify certain provisions of the parties' settlement agreement relating to his liability for payment of the children's educational expenses after high school. Speidel, the former wife, answered the petition and filed a counterclaim for modification of child support. The former wife then filed the instant complaint for modification of child support in the Fulton Superior Court. Next, the former husband filed a motion to dismiss the complaint under the two-year rule of Code Ann. § 30-220(a), and he also filed a plea of lis pendens under Code § 3-601. Later, the former husband filed a motion to dismiss the counterclaim, arguing that jurisdiction of this claim was in the Fulton Superior Court. After the DeKalb Superior Court granted the former husband's motion to dismiss the wife's counterclaim for modification of child support, the Fulton Superior Court overruled his motion to dismiss in that court. We granted his application for interlocutory appeal of the Fulton Superior Court order. We affirm.
Code § 3-601 does prohibit a plaintiff from prosecuting two actions in the court for the same cause and against the same party, and, if the actions are commenced at different times, the pendency of the former shall be a good defense to the latter. However, where the former suit is dismissed for lack of jurisdiction, the plaintiff is not prohibited from commencing another suit for the same cause against the same party in a court having jurisdiction to grant the relief sought. See Code § 3-607. See also Cantrell v. Davis, 46 Ga.App. 710, 169 S.E. 39 (1933). Cf. Wilson v. Atlanta etc. R. Co., 115 Ga. 171, 41 S.E. 699 (1902). Since the former suit was dismissed for lack of jurisdiction, on the husband's own motion, the trial court did not err in overruling the husband's plea of lis pendens in this suit. 1
For the same reason, the trial court did not err in overruling the husband's motion to dismiss under Code Ann. § 30-220(a) on the ground that the wife had filed the previous petition in the DeKalb Superior Court within a period of two years. Since the DeKalb Superior Court ruled that it lacked jurisdiction of the wife's modification petition, she is not precluded from filing another petition in the appropriate court. Cf. Cantrell v. Davis, supra.
Judgment affirmed.
All the Justices concur.
1 The DeKalb Superior Court dismissed the wife's counterclaim in the husband's declaratory judgment action for lack of personal and subject-matter jurisdiction. The reason for this ruling does not appear in the record in this case. However, it would appear to us as...
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...in a declaratory judgment action could interpose a counterclaim against the plaintiff under CPA § 13 [OCGA § 9-11-13]." Harrison v. Speidel, 244 Ga. 643, 644 (fn. 1), 261 S.E.2d 577 It follows that where an insured whose rights have accrued under a policy of insurance is named as a defendan......
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...Cf., McNeal v. McNeal, 233 Ga. 836, 213 S.E.2d 845 (1975). Therefore, we now hold that which was suggested by way of dicta in Harrison v. Speidel, 244 Ga. 643, 644 (fn. 1), 261 S.E.2d 577 (1979), to wit, that where a plaintiff brings suit for change of custody in a county other than the cou......
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Foster v. State
...if the actions are commenced at different times, the pendency of the former shall be a good defense to the latter." Harrison v. Speidel, 244 Ga. 643, 261 S.E.2d 577 (1979). Pretermitting a determination of what effect the fact that the subsequent abandonment action was a criminal rather tha......
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