Westbrook v. Griffin

108 S.E. 123, 27 Ga. App. 290, 1921 Ga. App. LEXIS 835

Opinions

Broyles, C. J.

1. Where a petition is met with a general demurrer which sets out that no cause of action is shown by the petition, the judgment sustaining the demurrer, if not reversed, is a bar to any subsequent suit by the plaintiff against the defendant on the claim or demand set forth in the petition, either upon the ground set forth therein, or upon any other grounds which could have been added thereto by amendment. Satterfield v. Spier, 114 Ga. 127, 132 (39 S. E. 930); McElmurray v. Blodgett, 120 Ga. 9, 15 (47 S. E. 531). However, a demurrer, which states that “ defendant demurs to the petition because the same does not clearly, fully, and distinctly set forth any cause of action against defendant,” is really a special demurrer, since it points out a defeet in form rather than a defect in substance. Kemp v. Central Railway Co., 122 Ga. 559, 561 (50 S. E. 465). It is a general demurrer only in the sense that it goes to the whole ease and results in the dismissal of the entire action, and such a demurrer may be sustained without creating a res adjudicata. Wolfe v. Georgia Railway & Electric Co., 6 Ga. App. 410, 413 (65 S. E. 62).

2. Under the above ruling, the dismissal of the plaintiff’s former action against the defendant on demurrer was not a bar to the present suit; and the court erred in sustaining the defendant’s special plea in bar and in dismissing the case.

Judgment reversed.

Bloodworth, J., concurs. Luke, J., dissents.