Cox v. Cox

135 S.E. 504, 163 Ga. 93, 1926 Ga. LEXIS 31

Opinion

Per Curiam.

1. The court erred in overruling the plea of res judicata. Under the decision in Wilkinson v. Wilkinson, 159 Ga. 332 (125 S. E. 856), the petition set out a cause of action for a divorce on the ground of cruel treatment, and also of willful and continued desertion. The prior suit, which was dismissed on general demurrer, set out the same state of facts. The petitions in both of the suits having alleged the same state of facts; whether one is called a suit based upon cruel treatment and the other a suit based upon willful and continued desertion, the dismissal of the former suit is a bar to the latter suit, the controlling question being whether the two petitions alleged the same state of facts. Civil Code (1910), § 4338; Smith v. Smith, 125 Ga. 83 (54 S. E. 73), and cit.

No. 5491. October 18, 1926. Rehearing denied November 25, 1926.

2. The above ruling disposes of tile case. The court having erred in overruling the plea of res judicata, the further proceedings in the trial were nugatory. Judgment reversed.

All the Justices concur. Earl Sims, for plaintiff in error. George & John L. Westmoreland, contra.