Smith v. Smith

54 S.E. 73, 125 Ga. 83, 1906 Ga. LEXIS 51

• Court: Supreme Court of Georgia
• Decided: March 23, 1906
• Status: Published

Opinion

Cobb, P. J.

(After stating the foregoing facts.) It is admitted by the plaintiff in error that substantially the same facts are alleged in the present petition as were set up in the former suit; but it is contended that the first suit was an action at law and the second an equitable action, and that a judgment sustaining a gen- . eral demurrer to a petition in an action at law could not be pleaded in bar to a petition in a subsequent equitable action, although the cause of action is the same. The original petition in the first suit prayed for judgment and process. By amendment, the petitioner prayed that the defendant be compelled to account to him for his profits and interest in the business, and for judgment for such amounts as might appear due. Irrespective of the question whether this first suit was one at law or in equity, a judgment upon its .merits would, in our opinion, be a bar to a second suit upon the same subject-matter, and one which set up the same facts. A cause of action may he one which could' be prosecuted in law or equity. The right infringed or the wrong done may entitle the person injured to different remedies. But the right to different remedies does not mean that each remedy arises from a separate right, or the commission of a separate wrong. The wrong which is the gravamen of both suits is the same. The right infringed as alleged in both suits is the same. The cause of action in both suits is the same. City of Columbus v. Anglin, 120 Ga. 785. “If upon demurrer the court has decided upon the merits of the cause, the judgment majr be pleaded in bar of another .suit for the same cause.” Civil Code, §3744. See Fain v. Hughes, 108 Ga. 537; Satterfield v. Spier, 114 Ga. 132; Ferguson v. Carter, 8 Ga. 524; Perry v. McLendon, 62 Ga. 598; Green v. Central Ry. Co., 112 Ga. 860, and cit. Judgment affirmed.

All the Justices concur.