2020 Georgia Code
Title 9 - Civil Practice
Chapter 2 - Actions Generally
Article 1 - General Provisions
§ 9-2-5. Prosecution of Two Simultaneous Actions for Same Cause Against Same Party Prohibited; Election; Pendency of Former Action as Defense; Exception

Universal Citation: GA Code § 9-2-5 (2020)
  1. No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.
  2. The rule requiring a plaintiff to elect shall not apply to a prior attachment against property where the defendant is subsequently served personally nor to an attachment obtained during the pendency of an action. However, the judgment in the case against the person shall set out the fact of its identity with the proceedings against the property.

(Orig. Code 1863, §§ 2835, 2836; Code 1868, §§ 2843, 2844; Code 1873, §§ 2894, 2895; Code 1882, §§ 2894, 2895; Civil Code 1895, §§ 3737, 3739; Civil Code 1910, §§ 4331, 4333; Code 1933, §§ 3-601, 3-605; Ga. L. 1982, p. 3, § 9.)

Cross references.

- Pendency of former action good cause for abatement of latter on same cause, § 9-2-44.

Law reviews.

- For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B.J. 24 (1985).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Pendency of Former Action
  • Attachments
General Consideration

Consideration with O.C.G.A. § 9-2-44. - O.C.G.A. §§ 9-2-5 and9-2-44 are closely related in effect and are to be considered and applied together. Huff v. Valentine, 217 Ga. App. 310, 457 S.E.2d 249 (1995).

Lack of jurisdiction.

- Because a dispossessory court never ruled upon or resolved a landlord's claims for past due rent and other damages, and because the dispossessory court lacked jurisdiction over the defaulting tenants, who were served by "nail and mail" service under O.C.G.A. § 44-7-51(a), the landlord's claims were not barred by the doctrine of res judicata under O.C.G.A. § 9-12-40 or subject to a plea of abatement under O.C.G.A. §§ 9-2-5(a) and9-2-44(a). Bhindi Bros. v. Patel, 275 Ga. App. 143, 619 S.E.2d 814 (2005).

Dismissal with prejudice.

- While a trial court could dismiss a neighbor's third complaint pursuant to O.C.G.A. §§ 9-2-5(a) and9-2-44(a), the court was not at liberty to do so with prejudice. McLeod v. Clements, 310 Ga. App. 235, 712 S.E.2d 627 (2011).

Counterclaim erroneously dismissed when separate and distinct parties.

- In litigation between two physicians and various entities the physicians control, the trial court erred in dismissing the counterclaim because despite a confusing similarity between the names of the various medical entities at issue, both sides agreed that the entity functioning as the plaintiff in the first lawsuit and the entities functioning as the plaintiffs in the counterclaim in the second lawsuit were, in fact, separate and distinct. Oskouei v. Orthopaedic & Spine Surgery of Atlanta, LLC, 340 Ga. App. 67, 796 S.E.2d 299 (2017).

Cited in Welchell v. Thompson, 39 Ga. 559, 99 Am. Dec. 470 (1869); Maher v. State, 53 Ga. 448, 21 Am. R. 269 (1874); Chisholm v. Lewis & Co., 66 Ga. 729 (1881); Heath v. Bates, 70 Ga. 633 (1883); Georgia R.R. & Banking Co. v. Gardner, 118 Ga. 723, 45 S.E. 600 (1903); Randolph v. Brunswick & B.R.R., 120 Ga. 969, 48 S.E. 396 (1904); Baker v. Davis, 127 Ga. 649, 57 S.E. 62 (1907); Board of Educ. v. Day, 128 Ga. 156, 57 S.E. 359 (1907); Eppinger v. Seagraves, 141 Ga. 639, 81 S.E. 1035 (1914); Jordan v. Jenkins, 17 Ga. App. 58, 86 S.E. 278 (1915); Boseman v. Carter, 18 Ga. App. 578, 90 S.E. 101 (1916); Sampson v. McRae, 22 Ga. App. 703, 97 S.E. 98 (1918); Vickers v. Robinson, 157 Ga. 731, 122 S.E. 405 (1924); Hines v. Moore, 168 Ga. 451, 148 S.E. 162 (1929); Donaldson v. Tripod Paint Co., 43 Ga. App. 3, 158 S.E. 640 (1931); Personal Fin. Co. v. Evans, 45 Ga. App. 54, 163 S.E. 252 (1932); Citizens' & Contractors' Bank v. Johnson, 175 Ga. 559, 165 S.E. 579 (1932); Gormley v. Askew, 177 Ga. 554, 170 S.E. 674 (1933); Rozetta v. Rozetta, 181 Ga. 494, 182 S.E. 847 (1935); Mosely v. Mosely, 181 Ga. 543, 182 S.E. 849 (1935); Dollar v. Fred W. Amend Co., 184 Ga. 432, 191 S.E. 696 (1937); Bruce v. Bruce, 195 Ga. 868, 25 S.E.2d 654 (1943); Hieber v. Buchanan, 202 Ga. 831, 44 S.E.2d 647 (1947); Dempsey v. Dempsey, 203 Ga. 225, 46 S.E.2d 156 (1948); Miller Serv., Inc. v. Miller, 77 Ga. App. 413, 48 S.E.2d 761 (1948); Southeastern Greyhound Lines v. Wells, 204 Ga. App. 814, 51 S.E.2d 569 (1949); Tucker v. Lea, 206 Ga. 538, 58 S.E.2d 434 (1950); Georgia Power Co. v. Fountain, 207 Ga. 361, 61 S.E.2d 454 (1950); Buie v. Waters, 209 Ga. 608, 74 S.E.2d 883 (1953); Moon v. Price, 213 F.2d 794 (5th Cir. 1954); Crawford v. Sumerau, 101 Ga. App. 32, 112 S.E.2d 682 (1960); Lowry v. Smith, 103 Ga. App. 601, 120 S.E.2d 47 (1961); Pattillo v. Atlanta & W.P.R.R., 216 Ga. 806, 120 S.E.2d 176 (1961); Gay v. Crockett, 217 Ga. 288, 122 S.E.2d 241 (1961); Housing Auth. v. Heart of Atlanta Motel, Inc., 220 Ga. 192, 137 S.E.2d 647 (1964); Winn v. National Bank, 110 Ga. App. 133, 138 S.E.2d 89 (1964); Banks v. Employees Loan & Thrift Corp., 112 Ga. App. 38, 143 S.E.2d 787 (1965); Daniel v. Dixie Plumbing Supply Co., 112 Ga. App. 427, 145 S.E.2d 796 (1965); Davis v. Ware County Bd. of Educ., 227 Ga. 41, 178 S.E.2d 857 (1970); Board of Educ. v. Shirley, 227 Ga. 565, 181 S.E.2d 826 (1971); Hinson v. Department of Transp., 230 Ga. 314, 196 S.E.2d 883 (1973); Watts v. Kundtz, 128 Ga. App. 797, 197 S.E.2d 859 (1973); Rowe v. Citizens & S. Nat'l Bank, 129 Ga. App. 251, 199 S.E.2d 319 (1973); Jernigan v. Collier, 131 Ga. App. 162, 205 S.E.2d 450 (1974); Perimeter Billjohn, Inc. v. Perimeter Mall, Inc., 141 Ga. App. 343, 233 S.E.2d 470 (1977); Jones v. Doe, 143 Ga. App. 451, 238 S.E.2d 555 (1977); Rinconcito Latino, Inc. v. Eriksson, 145 Ga. App. 340, 243 S.E.2d 721 (1978); Rothstein v. Consuegra, 153 Ga. App. 620, 266 S.E.2d 309 (1980); Foster v. State, 157 Ga. App. 554, 278 S.E.2d 136 (1981); Ranger Constr. Co. v. Robertshaw Controls Co., 158 Ga. App. 179, 279 S.E.2d 477 (1981); Cale v. Cale, 160 Ga. App. 434, 287 S.E.2d 362 (1981); Florida Rock Indus., Inc. v. Smith, 163 Ga. App. 361, 294 S.E.2d 553 (1982); Shepherd v. Metropolitan Property & Liab. Ins. Co., 163 Ga. App. 650, 294 S.E.2d 638 (1982); Equitable Gen. Ins. Co. v. Johnson, 166 Ga. App. 215, 303 S.E.2d 757 (1983); Dawson v. McCart, 169 Ga. App. 434, 313 S.E.2d 135 (1984); Hilliard v. Edwards, 169 Ga. App. 808, 315 S.E.2d 39 (1984); Avant v. Douglas County, 253 Ga. 225, 319 S.E.2d 442 (1984); Moore v. Lamar, 182 Ga. App. 742, 356 S.E.2d 742 (1987); Mitchell v. Wyatt, 192 Ga. App. 127, 384 S.E.2d 227 (1989); Holcomb v. Ellis, 259 Ga. 625, 385 S.E.2d 670 (1989); Johnson v. Collins, 221 Ga. App. 182, 470 S.E.2d 780 (1996); Georgia DOT v. Evans, 269 Ga. 400, 499 S.E.2d 321 (1998); Adams v. Tricord, LLC, 299 Ga. App. 310, 682 S.E.2d 588 (2009).

Pendency of Former Action

Legislative intent.

- Legislative declaration in O.C.G.A. § 9-2-5 is totally consistent with prevailing jurisprudential philosophy that a party is not entitled to prosecute a suit for the same cause of action in different courts, or in the same tribunal, at the same time. Clark v. Weaver, 159 Ga. App. 594, 284 S.E.2d 95 (1981).

Provisions of this section are mandatory and they are plain and unmistakable. Jones v. Rich's, Inc., 81 Ga. App. 841, 60 S.E.2d 402 (1950).

This section was intended to protect a party against vexatious suits on the same cause of action. Wilson v. Atlanta, K. & N. Ry., 115 Ga. 171, 41 S.E. 699 (1902).

Splitting causes of action does not cause injustice.

- Rule against splitting causes of action embodied in this section, is neither harsh or inflexible, and its proper administration need never cause injustice or deny the plaintiff any part of the fair and full determination of the plaintiff's right. Georgia Ry. & Power Co. v. Endsley, 167 Ga. 439, 145 S.E. 851, 62 A.L.R. 256 (1928).

O.C.G.A. § 9-2-5 prohibits plaintiff from prosecuting two actions for same cause and against the same party, and, if the actions are commenced at different times, the pendency of the former shall be a good defense to the latter. Griffin v. Griffin, 248 Ga. 743, 285 S.E.2d 710 (1982).

When a limited liability company brought a tort action against a county industrial development authority after filing an exception to a special master's award in a condemnation proceeding, the trial court properly dismissed the tort action under O.C.G.A. §§ 9-2-5(a) and9-12-40. In both the condemnation action and the tort action, the company sought a monetary award on the ground that the condemnation rendered its contract a nullity and that the condemnation action was brought in bad faith. Coastal Water & Sewerage Co. v. Effingham County Indus. Dev. Auth., 288 Ga. App. 422, 654 S.E.2d 236 (2007).

O.C.G.A. § 9-2-5 provides mechanism by which one viable action is determined. Clark v. Weaver, 159 Ga. App. 594, 284 S.E.2d 95 (1981).

Applicability.

- O.C.G.A. § 9-2-5 is part of the Civil Practice Act, O.C.G.A. T. 9, C. 11, and does not apply in criminal proceedings. Cox v. State, 203 Ga. App. 869, 418 S.E.2d 133 (1992).

Appellate court properly dismissed a second fraud and breach of contract action filed in a separate county, which was identical to one previously filed by the same plaintiff against the same defendants, under the prior pending litigation doctrine pursuant to O.C.G.A. § 9-2-5, and not under O.C.G.A. § 9-11-12(b)(6), which acted as a defense to the later filed action. Kirkland v. Tamplin, 283 Ga. App. 596, 642 S.E.2d 125, cert. denied, No. S07C0915, 2007 Ga. LEXIS 508 (Ga. 2007); cert. denied, 552 U.S. 1010, 128 S. Ct. 545, 169 L. Ed. 2d 373 (2007).

First suit absolute defense to second suit.

- If two suits are filed at different times each for the same cause and against the same party, the pendency of the first shall be a good defense to the latter. Drohan v. Carriage Carpet Mills, 175 Ga. App. 717, 334 S.E.2d 219 (1985).

Plaintiffs' suit against three corporations was barred by O.C.G.A. §§ 9-2-5(a) and9-2-44(a) as a prior suit involving the same parties and claims had been dismissed and an appeal of the dismissal was pending. That there were minor differences between the two complaints and that plaintiffs added new defendants was immaterial. Sadi Holdings, LLC v. Lib Props., Ltd, 293 Ga. App. 23, 666 S.E.2d 446 (2008).

"Renewal suit" filed by a limited liability company (LLC) and the company's manager against three corporations was properly dismissed under O.C.G.A. §§ 9-2-5(a) and9-2-44(a) as the LLC and manager's prior and nearly identical suit against the corporation had been dismissed and an appeal was pending. However, the second dismissal should have been without prejudice under O.C.G.A. § 9-11-41(b) as the corporation's plea in abatement did not challenge the merits of that suit. Sadi Holdings, LLC v. Lib Props., Ltd, 293 Ga. App. 23, 666 S.E.2d 446 (2008).

Renewal action not barred although counterclaim from prior action still pending.

- After a car buyer dismissed the buyer's fraud and breach of contract action against the seller while a counterclaim was pending and then attempted to refile the buyer's claims under the renewal statute, O.C.G.A. § 9-2-61, the trial court erred in dismissing the renewed action under O.C.G.A. §§ 9-2-5(a) and9-2-44(a). Code Section9-2-5(a) precluded simultaneous prosecution of the same claims, and the buyer was not prosecuting the same claims simultaneously, given that the buyer dismissed the buyer's claims in the first case. Brock v. C & M Motors, Inc., 337 Ga. App. 288, 787 S.E.2d 259 (2016).

Remedy for violation of subsection (a) of O.C.G.A. § 9-2-5 is in the nature of a shield by which an aggrieved defendant may protect oneself from defending duplicitous lawsuits. There is no additional remedy in the nature of a sword by which a defendant may prosecute an action for damages against a purported violator of the statute. Hose v. Jason Property Mgt. Co., 178 Ga. App. 661, 344 S.E.2d 483 (1986).

When actions are commenced at different times, plaintiff has no election, and must proceed with the initially filed action, and such former action shall be a good defense to the latter. If, however, the actions are filed simultaneously none of the actions are either "former" or "latter," and the plaintiff must select the case the plaintiff will pursue and the others must be dismissed. O.C.G.A. § 9-2-5 allows the plaintiff to elect the case which the plaintiff will prosecute and not the one which the plaintiff will first prosecute. Clark v. Weaver, 159 Ga. App. 594, 284 S.E.2d 95 (1981).

When actions in two counties involve the same plaintiffs, the same defendants, and the same cause of action, the fact that the Cobb County actions were brought separately by these same plaintiffs and were then combined in one action in Colquitt County is a difference without a distinction. Creel v. Welker & Assocs., 174 Ga. App. 877, 332 S.E.2d 5 (1985).

Controlling statute over § 9-2-4. - Former Code 1933, §§ 3-601 and 3-605 (see now O.C.G.A. § 9-2-5) provided a defendant with a specific defense against a plaintiff who came within its parameters and would prevail over the general terms of former Code 1933, § 3-114 (see now O.C.G.A. § 9-2-4) if all of the conditions thereof were satisfied. Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978).

Statute is made applicable to tort actions by former Civil Code 1895, § 3903 (see now O.C.G.A. § 51-11-5). Wilson v. Atlanta, K. & N. Ry., 115 Ga. 171, 41 S.E. 699 (1902).

Application to federal court.

- This section does not apply to a suit pending in federal court, but when the federal court has acquired possession of the res or taken steps equivalent to the exercise of dominion over it, that court will acquire exclusive jurisdiction. Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233, 96 S.E. 424 (1918).

Pendency of a prior action in the federal court brought by a defendant in a negligence action in the state court did not bar the defendant's third-party complaint in the state case, even though it involved the same parties and same cause of action. Huff v. Valentine, 217 Ga. App. 310, 457 S.E.2d 249 (1995).

Plaintiff is not at liberty to split up a plaintiff's demand and prosecute it piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fails. Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978).

Pendency of one proceeding is good defense to second proceeding. Terrell v. Griffith, 129 Ga. App. 675, 200 S.E.2d 485 (1973).

Pendency of a former action is a good defense to a second action brought by the same plaintiff against the same defendant and involving the same cause of action as in the former suit, and a motion for summary judgment will lie to the second suit since it cannot be tried as long as the first suit is pending. Cherry v. Gilbert, 124 Ga. App. 847, 186 S.E.2d 319 (1971).

From a single wrong only one cause of action can arise. Ellis v. Kite, 107 Ga. App. 237, 129 S.E.2d 547 (1963).

If there is substantial identity of wrong, which necessarily includes identity of the right violated, there is substantial identity of cause of action. Ellis v. Kite, 107 Ga. App. 237, 129 S.E.2d 547 (1963).

No plaintiff is entitled to prosecute two actions in the courts of this state at the same time, for the same cause, and against the same party; in such a case the defendant may require the plaintiff to elect which the plaintiff will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter, if commenced at different times. Baxter v. Crandall, 45 Ga. App. 125, 163 S.E. 526 (1932).

Plaintiff cannot pursue at the same time against the same defendant a cause of action based upon the same subject matter in two different courts. Jones v. Rich's, Inc., 81 Ga. App. 841, 60 S.E.2d 402 (1950).

Dismissal of action.

- Claims that were subject to dismissal because the claims were duplicative of prior pending actions and subject to dismissal under O.C.G.A. § 9-2-5 were not void; thus, voluntary dismissal without prejudice of such claims was a dismissal within the meaning of O.C.G.A. § 9-11-41. Zohoury v. Zohouri, 218 Ga. App. 748, 463 S.E.2d 141 (1995).

Trial court did not err in dismissing an officer's claims against entities pursuant to the "prior action pending doctrine," O.C.G.A. § 9-2-5(a), because the officer previously filed a similar action in the same court that was transferred to another county; the claims in the two actions were similar and the same facts were pled in both actions. Odion v. Varon, 312 Ga. App. 242, 718 S.E.2d 23 (2011), cert. denied, No. S12C0399, 2012 Ga. LEXIS 561 (Ga. 2012).

If the first suit is a wholly abortive effort, which the defendant is not legally called upon to resist, the pendency of the first suit shall not abate second action. Jones v. Rich's, Inc., 81 Ga. App. 841, 60 S.E.2d 402 (1950).

Common issues but possibility of different ones being raised.

- Even though there was a common issue of liability in each of two actions brought by a party, where additional liability issues could be raised in one action, mandatory abatement or dismissal was not authorized. International Telecommunications Exch. Corp. v. MCI Telecommunications Corp., 214 Ga. App. 416, 448 S.E.2d 71 (1994).

Error to dismiss complaint when defendant not party to pending action.

- As O.C.G.A. § 9-2-5 requires an identity of parties before the defense of prior pending action is viable, it was error for the trial court to apply the defense and dismiss the complaint since the defendant was not a party to the pending action when the suit was filed. P.H.L. Dev. Corp. v. Smith, 174 Ga. App. 328, 329 S.E.2d 545 (1985); McLain Bldg. Materials, Inc. v. Hicks, 205 Ga. App. 767, 423 S.E.2d 681 (1992).

Dismissal of action not justified.

- Dismissal of an action by foreign corporations against a manufacturer on the basis of a prior pending action in the courts of another state was inappropriate in consideration of the provisions of O.C.G.A. §§ 9-2-5,9-2-44, and9-2-45. Flagg Energy Dev. Corp. v. GMC, 223 Ga. App. 259, 477 S.E.2d 402 (1996).

Status of second action.

- Second action is not necessarily void ab initio where there is a prior pending action. Parsons, Brinckerhoff, Quade & Douglas, Inc. v. Johnson, 161 Ga. App. 634, 288 S.E.2d 320 (1982).

Since five years have not yet passed since last order was filed in prior action, the prior action is still pending when a plea of pendency is filed. That being so, the pleader is entitled to a judgment in the pleader's favor because the key event is not the entry of an order in the second action but the filing of the defense of pendency. Hammond v. State, 168 Ga. App. 508, 308 S.E.2d 701 (1983).

Copy of pleading proof of former action.

- Certified copy of the pleading in a former case offered into evidence at a hearing on a motion for summary judgment is sufficient proof of the pendency of the former action. Grant v. Wilkinson, 167 Ga. App. 83, 306 S.E.2d 63 (1983).

Dismissal of former action for lack of jurisdiction.

- Although this section prohibits a plaintiff from prosecuting two actions for the same cause and against the same party, when the former suit is dismissed for lack of jurisdiction, plaintiff is not prohibited from commencing another suit for the same cause against the same party in a court having jurisdiction to grant the relief sought. Harrison v. Speidel, 244 Ga. 643, 261 S.E.2d 577 (1979).

Determination of jurisdiction.

- Until the question of jurisdiction is determined by the court having power to pass thereon, no other court should interfere. Wilson v. Atlanta, K. & N. Ry., 115 Ga. 171, 41 S.E. 699 (1902).

No action "pending" without service.

- Mere filing of petition, without proper service, will not constitute a pending suit. McClendon & Co. v. Hermando Phosphate Co., 100 Ga. 219, 28 S.E. 152 (1897); Kirby v. Johnson County Sav. Bank, 12 Ga. App. 157, 76 S.E. 996 (1913).

Because the Department of Transportation failed to show that service of process had been effectuated in an alleged prior pending personal injury suit filed in Brantley County, based on the same accident a driver sued upon in Wayne County, the Brantley County suit was not "pending," as that term was defined in O.C.G.A. § 9-2-5(a). Thus, the trial court erred in dismissing the driver's Wayne County suit. Watson v. Ga. DOT, 288 Ga. App. 40, 653 S.E.2d 763 (2007).

Filing of petition without service does not operate to commence a suit and no suit is pending until the suit has been served. Cherry v. Gilbert, 124 Ga. App. 847, 186 S.E.2d 319 (1971).

When a defendant files a counterclaim after the plaintiff voluntarily dismisses an action in which lawful service was never had, the counterclaim does not keep the first action pending so as to authorize abatement of another action under this section. Swanson v. Holloway, 128 Ga. App. 453, 197 S.E.2d 150 (1973).

Return of sheriff reciting service in another county was prima facie conclusive of the facts therein recited, and pendency of undetermined and undisposed of traverse did not operate to destroy the status of the action in the other county as a pending suit. Baxter v. Crandall, 45 Ga. App. 125, 163 S.E. 526 (1932).

All the parties must be the same in order for the pendency of the first suit to abate the second. Haisten v. Tanner-Brice Co., 211 Ga. 821, 89 S.E.2d 172 (1955).

Identity of parties must be same.

- Parties in mandamus proceeding to compel trustees to pay a retirement and in certiorari proceeding to review finding of trustees are not the same. Aldredge v. Rosser, 210 Ga. 28, 77 S.E.2d 515 (1953).

There is no defense under this section when the plaintiffs in the first action are in nowise involved in the second, even though plaintiffs in the later action were in actuality plaintiffs in the first as intervenors. Haisten v. Tanner-Brice Co., 211 Ga. 821, 89 S.E.2d 172 (1955).

O.C.G.A. § 9-2-5 did not bar plaintiff's action against her former husband's corporation for damages to a warehouse because of the inclusion of a similar claim against the former husband in a contempt action. Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 478 S.E.2d 601 (1996).

Parties must occupy same status.

- This section requires that the suits must be between the same parties based on the same cause of action, and not only must the parties be the same, but also they must occupy the same status in both suits. Tinsley v. Beeler, 134 Ga. App. 514, 215 S.E.2d 280 (1975).

In order for O.C.G.A. § 9-2-5 to be applicable, the parties must occupy the same status in both suits. Bedingfield v. Bedingfield, 248 Ga. 91, 281 S.E.2d 554, appeal dismissed, 248 Ga. 147, 282 S.E.2d 641 (1981).

Dismissal of one party from an action based on a prior pending suit was not erroneous simply because all other parties to the two suits were not identical and because a party was a defendant in the first action and plaintiff in the second; the same party was plaintiff with respect to its counterclaim in the first action as well as its claim in the second action and, thus, the required identity of status was present. McLain Bldg. Materials, Inc. v. Hicks, 205 Ga. App. 767, 423 S.E.2d 681 (1992).

Effect of joinder or substitution.

- Trial court should have determined whether party could have been added as a party plaintiff after joinder or substitution was sought to 1995 suit; therefore, if trial court allowed addition of party in 1995 action, the party's 1997 action should have been dismissed as identical. Tri-County Inv. Group v. Southern States, Inc., 231 Ga. App. 632, 500 S.E.2d 22 (1998).

Dispossessory actions by landlord.

- Dispossessory action filed by a landlord against a tenant which sought possession of the premises and payment of past due rent for April 1984 did not preclude a second action seeking possession and payment of past due rent for May 1984; clearly, the two proceedings were not the same cause of action. Hose v. Jason Property Mgt. Co., 178 Ga. App. 661, 344 S.E.2d 483 (1986).

Attack based on simultaneous pleadings.

- Because an attack based on simultaneous pleadings does not go to the merits of the underlying claim, it is more appropriately asserted by a motion to dismiss than a motion for summary judgment. Liner v. North, 184 Ga. App. 74, 360 S.E.2d 637 (1987).

Addition of totally new parties by amendment does not relate back to the original suit for purposes of determining whether a prior pending suit exists. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975).

Subsequent voluntary dismissal of the first suit does not preserve the second suit insofar as this section is concerned. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533, 221 S.E.2d 697 (1975).

Under this section, if two suits are filed at different times each for the same cause and against the same party, the pendency of the first shall be a good defense to the latter; the effect of the defense cannot be avoided even by a dismissal of the first suit. Steele v. Steele, 243 Ga. 522, 255 S.E.2d 43 (1979); Astin v. Callahan, 222 Ga. App. 226, 474 S.E.2d 81 (1996).

After pleading, plaintiff cannot elect which suit to pursue.

- Under this section one may not elect to dismiss a first suit where two suits based on the same cause of action were filed at separate times, as once a plea raising the issue of pendency of another suit is filed it is too late for plaintiff to elect which proceeding the plaintiff chooses. Terrell v. Griffith, 129 Ga. App. 675, 200 S.E.2d 485 (1973).

Effect of the plea or defense of a pending former suit cannot be avoided even by a dismissal of the first suit. McPeake v. Colley, 116 Ga. App. 320, 157 S.E.2d 562 (1967), overruled on other grounds, Dawson v. McCart, 169 Ga. App. 434, 313 S.E.2d 135 (1984).

Same defendant and same cause of action.

- If pending a suit another be brought against the same defendant for the same cause of action, the pendency of the first suit may be pleaded in abatement of the second, and the plaintiff cannot defeat the plea under this section by dismissing the suit first brought. Singer v. Scott, 44 Ga. 659 (1872).

Dismissal of cross action filed in first suit would not avoid plea in abatement filed to second suit in another court. Jones v. Rich's, Inc., 81 Ga. App. 841, 60 S.E.2d 402 (1950); Minniefield v. Sylvester, 193 Ga. App. 484, 388 S.E.2d 526 (1989).

Shareholder's action to inspect corporate records brought in Cobb County was not barred by a prior action brought by the shareholder in Fulton County because the parties were not identical and the causes of action were not the same. The Cobb County suit sought only access to corporate records and attorney fees, while the Fulton County suit sought damages for breach of fiduciary duties, punitive damages, attorney fees, and the forced repurchase of the shareholder's shares. Advanced Automation, Inc. v. Fitzgerald, 312 Ga. App. 406, 718 S.E.2d 607 (2011).

Pendency of the related actions was good cause for abatement of the instant case because the related actions and the instant case both involved the landowner's alleged rights to title and possession of the same land, the landowner properly asserted the landowner's claims of wrongful foreclosure in the prior pending related actions, and a decision in the landowner's favor on the landowner's wrongful foreclosure claims in the related actions could estop the present dispossessory proceeding. Premium Funding Solutions, LLC v. Metro Atlanta Task Force for the Homeless, Inc., 333 Ga. App. 718, 776 S.E.2d 504 (2015).

Trial court erred by finding that two pending actions brought by a hospital against the Department of Community Health and a competing hospital involved the same cause of action under the prior pending action doctrine, O.C.G.A. §§ 9-2-5(a) and9-2-44(a); although both cases relied on one similar argument, the hospital's petition for judicial review of the final agency decision raised additional issues that could not have been brought in the hospital's earlier declaratory judgment action. Doctors Hosp. of Augusta, LLC v. Dep't of Cmty. Health, 344 Ga. App. 583, 811 S.E.2d 64 (2018).

Motion for summary judgment will lie on the ground of the pendency of a former original action, in a second action brought by the same plaintiff against the same defendant and involving the same cause of action as in the former action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98 (1972); Stagl v. Assurance Co. of Am., 245 Ga. App. 8, 539 S.E.2d 173 (2000).

Motion for summary judgment will lie on the ground of the pendency of substantially the same cross-claim filed against the party in a former original action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98 (1972).

Action to collect on note and foreclosure on personal property securing payment of the same note are different causes of action, and pendency of the former does not serve to abate the latter. Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94, 222 S.E.2d 881 (1975).

Prior pending wrongful foreclosure suit did not require dismissal of condemnation proceeding.

- Prior pending wrongful foreclosure action did not require the abatement and dismissal of a bank's application for confirmation under O.C.G.A. § 44-14-161 because the confirmation proceeding did not involve the same cause of action as the wrongful foreclosure suit, but was instead a special statutory proceeding and not a complaint which initiated a civil action or suit. BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759, 670 S.E.2d 210 (2008).

Condemnation proceeding distinct from inverse condemnation action.

- Pendency of the county's condemnation proceeding provided no basis for dismissal of the property owner's inverse condemnation action because a claim for condemnation was distinct from a claim for inverse condemnation and the damages recoverable by a property owner for each cause of action was different; thus, the two cases were not for the same cause of action. Morgan County v. Gay, 352 Ga. App. 555, 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

Complaint seeking injunctive relief against county corporation is not subject to dismissal because of the pendency of a mandamus action in another county against the corporation and its president. Tallant v. Executive Equities, Inc., 230 Ga. 172, 195 S.E.2d 904 (1973).

Both garnishment and contempt actions may be pursued simultaneously for the collection or satisfaction of the payments owed under a divorce judgment. Herring v. Herring, 138 Ga. App. 145, 225 S.E.2d 697 (1976).

Suing on a note will not bar ejectment action on a deed given to secure the note. Dykes v. McVay, 67 Ga. 502 (1881).

Abatement of action based on subject of compulsory counterclaim.

- Subsequent action by a parent for wrongful death of a child is abated by pending original action against the parent for damages arising from the same automobile accident as a wrongful death claim was a compulsory counterclaim in the original action. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 222 S.E.2d 878 (1975).

Dismissal of counterclaim in second action erroneously denied.

- In a personal injury accident between two drivers, the trial court erroneously denied the first driver's motion to dismiss a counterclaim asserted by the second driver because the second driver had a prior pending action against the first driver in another county, and the parties' status in both actions was identical. Moreover, given the first driver's assurances that the instant suit would be dismissed in favor of defending the second driver's claims in the prior pending action, the denial of the first driver's motion to dismiss the second driver's counterclaim was inconsistent with the purpose of O.C.G.A. § 9-2-5. Jenkins v. Crea, 289 Ga. App. 174, 656 S.E.2d 849 (2008).

Judgment granted upon failure to raise defense.

- There was no merit in tenants' contention that despite having failed to raise the pendency of their landlord's prior dispossessory action as a defense to a subsequent dispossessory action, the subsequent action should nevertheless be barred. It was incumbent upon the tenants to answer and raise whatever defenses the tenants thought applicable. No answer having been filed, the trial court properly granted judgment by default. Dickens v. First Capital Income Properties, Ltd., 187 Ga. App. 607, 371 S.E.2d 130 (1988).

Action not barred because of insurance payments.

- Plaintiff was not barred from prosecuting a loss of consortium action although the plaintiff had received and accepted payment from the defendant's insurance company for the same automobile collision because the payment previously received was not as a result of a lawsuit, but was received prior to the filing of any complaint. Therefore, it could not be said as a matter of law that the plaintiff impermissibly split the plaintiff's cause of action. Hayes v. McFarlane, 187 Ga. App. 90, 369 S.E.2d 286, cert. denied, 187 Ga. App. 907, 369 S.E.2d 286 (1988).

Action barred.

- After a former employer asserted claims identical to ones that were compulsory counterclaims in earlier suits, the trial court erred in denying a plea in abatement to all but one of the former employees pursuant to O.C.G.A. §§ 9-2-5 and9-2-44; the trial court did not abuse the court's O.C.G.A. § 9-5-8 discretion in staying two prior cases pursuant to O.C.G.A. §§ 9-5-1 and9-5-3. Smith v. Tronitec, Inc., 277 Ga. 210, 586 S.E.2d 661 (2003).

Bank sued the bank's customer to recover for an overdraft; before filing the customer's counterclaim, the customer sued the bank in another county. As the customer raised the same claims in the customer's complaint and counterclaim, and as there was a logical relationship between the parties' claims, the customer's counterclaim was compulsory; therefore, the customer's suit against the bank was barred by O.C.G.A. § 9-2-5(a). Steve A. Martin Agency, Inc. v. PlantersFIRST Corp., 297 Ga. App. 780, 678 S.E.2d 186 (2009).

As a bank filed suit against the bank's customer before the latter filed suit against the former, and both suits involved the same cause of action, the customer's suit was properly dismissed under O.C.G.A. § 9-2-5(a). Though the bank did not serve the customer until the customer's suit was filed, the service on the customer related back to the date of filing, which established the date the bank's suit was commenced. Steve A. Martin Agency, Inc. v. PlantersFIRST Corp., 297 Ga. App. 780, 678 S.E.2d 186 (2009).

Attachments

Separate remedies.

- Common-law action and attachment proceedings are considered by the law as separate and distinct remedies which a party may pursue concurrently and the satisfaction of one satisfies the other. Sheehan v. Ruben, 83 Ga. App. 336, 63 S.E.2d 605 (1951).

One may pursue a common-law action and a proceeding in attachment for the same debt, at the same time, against the same party. Sheehan v. Ruben, 83 Ga. App. 336, 63 S.E.2d 605 (1951).

Action in this state and attachment in another.

- Under this section, an action in this state against the debtor and attachment in another state against the debtor's property may proceed at the same time for the same debt. Lightfoot v. Planters' Banking Co., 58 Ga. 136 (1877).

Judgment to credit defendant with attachment sale proceeds.

- When holder of title-retention note given for purchase money of machinery files suit on note, defendant purchaser cannot set up in bar or in abatement that plaintiff had previously in same court instituted a purchase-money attachment; if judgment is rendered for plaintiff, court should mold the court's judgment to credit defendant with any sums realized from the sale of the property under attachment proceedings. Hayes v. International Harvester Co. of Am., 52 Ga. App. 328, 183 S.E. 197 (1935).

Attachments under former Civil Code 1910, § 5071 (see now O.C.G.A. § 18-3-4) were expressly excepted from the provisions of subsection (a) of former Code 1933, §§ 3-601 and 3-605 (see now O.C.G.A. § 9-2-5) by subsection (b). Johnson & Son v. Friedman-Shelby Shoe Co., 15 Ga. App. 561, 83 S.E. 969 (1914).

RESEARCH REFERENCES

Am. Jur. 2d.

- 1 Am. Jur. 2d, Abatement, Survival, and Revival, § 6 et seq. 1 Am. Jur. 2d, Actions, § 32.

9 Am. Jur. Pleading and Practice Forms, Election of Remedies, § 1.

17 Am. Jur. Pleading and Practice Forms, Lis Pendens, § 3.

C.J.S.

- 1 C.J.S., Abatement and Revival, § 17 et seq. 1A C.J.S., Actions, § 20.

ALR.

- Lis pendens: protection during time allowed for appeal, writ of error, or motion for new trial, 10 A.L.R. 415.

Plea of pendency of former action as affecting right of pleader to avail himself of objections to the former action, 32 A.L.R. 1339.

Action or suit as abating mandamus proceeding or vice versa, 37 A.L.R. 1432.

Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806.

Rule against splitting cause of action as applicable to acceptance of payment of less than all claims or items of claims, 87 A.L.R. 781.

Election of remedies by owner against public authority or corporation having power of eminent domain which unauthorizedly enters land without instituting valid eminent domain proceedings, 101 A.L.R. 373.

Doctrine of election of remedies as applicable where remedies are pursued against different persons, 116 A.L.R. 601.

Pendency of suit for cancellation, reformation, or rescission of a contract as abating subsequent action to enforce it or to recover damages for its breach, and vice versa, 118 A.L.R. 1240.

Stage of action at which effective notice of lis pendens may be filed, 130 A.L.R. 943.

Right of employee of public contractor to maintain action against latter based upon statutory obligation as to rate of wages or upon provisions in that regard in the contract between contractor and the public, 144 A.L.R. 1035.

Bank depositor's act in seeking restitution from third person to whom, or for benefit of whom, the bank has paid out the deposit, as election of remedy precluding action against bank, 144 A.L.R. 1440.

Conclusive election of remedies as predicated on commencement of action, or its prosecution short of judgment on the merits, 6 A.L.R.2d 10.

Duration of operation of lis pendens as dependent upon diligent prosecution of suit, 8 A.L.R.2d 986.

Pendency of prior action for absolute or limited divorce between same spouses in same jurisdiction as precluding subsequent action of like nature, 31 A.L.R.2d 442.

Abatement on ground of prior pending action in same jurisdiction as affected by loss by plaintiff in second action of advantage gained therein by attachment, garnishment, or like process, 40 A.L.R.2d 1111.

Right to secure new or successive notice of lis pendens in same or new action after loss or cancellation of original notice, 52 A.L.R.2d 1308.

Pleading of election of remedies, 99 A.L.R.2d 1315.

Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400.

Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa, 94 A.L.R.3d 676.

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