Allen v. Landers

146 S.E. 794, 39 Ga. App. 264, 1929 Ga. App. LEXIS 281

Opinions

Bell, J.

1. “That since the commencement of the pending suit the same plaintiff has brought suit for the same cause of action against another defendant, is not good ground for a plea in abatement nor for compelling the plaintiff to elect which action he will pursue.” Augusta & Summerville R. Co. v. Dorsey, 68 Ga. 228 (2). Nor will the prosecution of such second suit to a judgment in favor of the plaintiff estop him from proceeding with the first, where the judgment remains unsatisfied (Civil Code of 1910, § 5522; Booth v. Huff, 116 Ga. 8 (2), 42 S. E. 381, 94 Am. St. R. 98; Garrick v. Tidwell, 151 Ga. 294 (2), 106 S. E. 551; McLendon v. Finch, 2 Ga. App. 421 (3), 58 S. E. 690; Hulsey v. Forrester, 36 Ga. App. 729, 137 S. E. 904) , although there can be but one satisfaction of the same damage or injury, and when this has been received the cause of action becomes extinguished. Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga. App. 450 (120 S. E. 789).

2. The court erred in overruling the plaintiff’s demurrer to the defendant’s special plea, and in thereafter sustaining the plea and dismissing the action. Judgment reversed.

Decided February 7, 1929. Rehearing denied Eebruary 21, 1929. ' T. J. Lewis, for plaintiffs. T. Elton Drake, for defendant. Jenkins, P. J-, and Stephens, J., concur.