Dobson v. Truscon Steel Co.

70 Ga. App. 574

Opinion

Felton, J.

The pendency of a former suit for the same cause of action shall not abate the action if the first action is so defective that no recovery can possibly be had. Code, § 3-607. Here the first action was fatally defective. The cause of action was not joint. The superior court of Gordon County had no jurisdiction of an action on account against the defendant, and a judgment against him would have been void. ‘ R. E. Jarman & Sons v. Drew, 67 Ga. App. 850 (21 S. E. 2d, 444). Therefore the pendency of the action in the superior court of that county could not be. pleaded in abatement of the action in Floyd County. The court did not err in striking the plea in abatement, and in overruling the motion for a new trial.

Judgment affirmed.

Sutton, P. J., and Parker, J., concur.