Smith v. Bank of Acworth

• Decision Date: 01 February 1965
• Docket Number: No. 2,No. 41121,41121,2
• Citation: 140 S.E.2d 888,111 Ga.App. 112
• Parties: James P. SMITH, Jr. v. BANK OF ACWORTH
• Court: Georgia Court of Appeals

Page 888

140 S.E.2d 888

111 Ga.App. 112

James P. SMITH, Jr. v. BANK OF ACWORTH.

No. 41121.

Court of Appeals of Georgia, Division No. 2.

Feb. 1, 1965.

Alton T. Milam, Atlanta, for plaintiff in error.

Edwards, Bentley, Awtrey & Parker, Lemon M. Awtrey, Jr., A. Sidney Parker, Marietta, for defendant in error.

Syllabus Opinion by the Court

NICHOLS, Presiding Judge.

James P. Smith, Jr., filed the present action to recover damages allegedly accruing as a result of a contract entered into by the plaintiff with the defendant, the Bank of Acworth. Defendant filed a plea of res adjudicata based upon a prior action filed by the plaintiff seeking specific performance of a contract arising out of the same transaction involved in the present litigation, in which prior action a general demurrer was sustained. On appeal the judgment of the trial court in the prior action was affirmed because the petition failed to allege tender. See Smith v. Bank of Acworth, 218 Ga. 643, 129 S.E.2d 857. The plea had attached thereto as exhibits the petition in the original case, the judgment of the trial court sustaining the defendant's general demurrer, the remittitur from the Supreme Court and the judgment of the trial court making the judgment of the Supreme Court the judgment of that court. To such plea the plaintiff demurred on the ground that a dismissal on demurrer is a dismissal on a legal technicality which does not pass upon the merits of the plaintiff's case. Such demurrer was overruled and on the trial of the issue raised by the defendant's plea, before the trial court without the intervention of a jury, the original papers referred to above were introduced into evidence and a judgment rendered sustaining the defendant's plea of res adjudicata. The plaintiff now assigns error on such judgments adverse to him. Held:

1. 'If in rendering its judgment upon a demurrer to a petition the court does not decide upon the merits of the case, a judgment sustaining a demurrer and dismissing the petition is not a bar to another proceeding for the same cause. Code, § 110-503; National Bank of Augusta v. Southern Porcelain Mfg. Co., 59 Ga. 157, 164; Papworth v. City of Fitzgerald, 111 Ga. 54, 36 S.E. 311; Dolvin v. American Harrow Co., 125 Ga. 699, 54 S.E. 706, 28 L.R.A., N.S., 785; Story v. Pope, 205 Ga. 523, 54 S.E.2d 394. However, if in rendering the judgment on the demurrer to the previous petition the court decides upon the merits of the case, the judgment operates as res judicata to a second petition based on the same cause of action. Code, § 110-504; Kimbro v. Virginia & T. A. L. R. Co., 56 Ga. 185; Revels v. Kilgo, 157 Ga. 39(b), 121 S.E. 209; Smith v. Bird, 189 Ga....