Avery v. Southern Railway Co.

Court of Appeals of Georgia

Avery v. Southern Railway Co.

171 S.E. 456, 47 Ga. App. 772, 1933 Ga. App. LEXIS 657

CourtCourt of Appeals of Georgia

DecidedOctober 28, 1933

Docket22959

StatusPublished

Cited by2 cases

This text of 171 S.E. 456 (Avery v. Southern Railway Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Avery v. Southern Railway Co., 171 S.E. 456, 47 Ga. App. 772, 1933 Ga. App. LEXIS 657 (Ga. Ct. App. 1933).

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Opinion

Stephens, J.

1. A judgment sustaining a general demurrer to a petition is res judicata of the plaintiff’s right to recover on the alleged cause of action set out in the petition. Civil Code (1910), § 4338. The suit can not be renewed under the Civil Code (1910), § 4381. Kimbro v. Virginia &c. Ry. Co., 56 Ga. 185.

2. Where, in the petition which purports to be a renewal of a former suit within six months of its dismissal as provided in section 4381 of the Civil Code of 1910, it is alleged that the former suit was between the same parties and was in substance the same as the pending suit, and the former suit was dismissed on demurrer, it appears from the renewal petition that the matter, by reason of the judgment of dismissal of the petition in the former suit on demurrer, is res judicata; and a demurrer to the renewal petition, on this ground, is properly sustained. See Avery v. Southern Railway Co., 44 Ga. App. 613 (162 S. E. 648).

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur.

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Stephens, J.

1. A judgment sustaining a general demurrer to a petition is res judicata of the plaintiff’s right to recover on the alleged cause of action set out in the petition. Civil Code (1910), § 4338. The suit can not be renewed under the Civil Code (1910), § 4381. Kimbro v. Virginia &c. Ry. Co., 56 Ga. 185.

2. Where, in the petition which purports to be a renewal of a former suit within six months of its dismissal as provided in section 4381 of the Civil Code of 1910, it is alleged that the former suit was between the same parties and was in substance the same as the pending suit, and the former suit was dismissed on demurrer, it appears from the renewal petition that the matter, by reason of the judgment of dismissal of the petition in the former suit on demurrer, is res judicata; and a demurrer to the renewal petition, on this ground, is properly sustained. See Avery v. Southern Railway Co., 44 Ga. App. 613 (162 S. E. 648).

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur.

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171 S.E. 456, 47 Ga. App. 772, 1933 Ga. App. LEXIS 657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-v-southern-railway-co-gactapp-1933.

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