2020 Georgia Code
Title 9 - Civil Practice
Chapter 2 - Actions Generally
Article 3 - Abatement
§ 9-2-44. Effect of Former Recovery; Pendency of Former Action

1. A former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement. However, if the first action is so defective that no recovery can possibly be had, the pendency of a former action shall not abate the latter.
2. Parol evidence shall be admissible to show that a matter apparently covered by the judgment was not passed upon by the court.

(Orig. Code 1863, §§ 2838, 2839, 3407; Code 1868, §§ 2846, 2847, 3426; Code 1873, §§ 2897, 2898, 3476; Code 1882, §§ 2897, 2898, 3476; Civil Code 1895, §§ 3741, 3743, 3476; Civil Code 1910, §§ 4335, 4337, 5678; Code 1933, §§ 3-607, 3-608; Ga. L. 1982, p. 3, § 9.)

- Pendency of former action defense to latter on same cause, § 9-2-5.

- For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B.J. 24 (1985). For note, "Res Judicata in the Georgia Courts," see 11 Ga. L. Rev. 929 (1977).

ANALYSIS

• General Consideration
• Former Recovery
• Pendency of Actions
• Parol Evidence

History of this section, see Hood v. Cooledge, 39 Ga. App. 476, 147 S.E. 426 (1929).

O.C.G.A. § 9-2-44 provides for abatement as matter of law whenever a former recovery or a pending suit for the same cause has been pleaded. Cale v. Cale, 160 Ga. App. 434, 287 S.E.2d 362 (1981).

This section contemplates both actions that are reduced to judgment and pending actions. Stein Steel & Supply Co. v. Wilkins, 102 Ga. App. 389, 116 S.E.2d 507 (1960).

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

"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).

- 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).

- 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).

Consideration with § 9-2-5. - 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).

Apparent conflict between former Civil Code 1910, §§ 4335, 4336, 4337, 5678, 5679 and 5943 (see O.C.G.A. §§ 9-2-44,9-12-40, and9-12-42) was readily reconciled by the fact that former Civil Code 1910, §§ 4335, 4337, 5678, and 5679 have special application to estoppels by judgment, while former Civil Code 1910, §§ 4336 and 5943 applied when a plea of res adjudicate was available. Camp v. Lindsay, 176 Ga. 438, 168 S.E. 284 (1933).

Law articulated by this section applies to torts. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952).

- 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).

One of the prime objects of judicial procedure is to forever settle and end disputes between litigants, and courts never look with favor on unnecessary prolongation of litigation, and particularly disapprove of attempts to ignore or evade binding judgments. Lankford v. Holton, 196 Ga. 631, 27 S.E.2d 310 (1943).

- For plea or motion based on this section to avail, record in former action must be introduced in evidence. Watts v. Kundtz, 128 Ga. App. 797, 197 S.E.2d 859 (1973).

- When no evidence is introduced in support of plea or motion based on pendency or adjudication of previous action, the trial court cannot take judicial notice of a pleadings in previously instituted suit. Watts v. Kundtz, 128 Ga. App. 797, 197 S.E.2d 859 (1973).

In claim interposed by third person to vehicle seized by state for illegally transporting spiritous liquors, acquittal of defendant in criminal proceeding for related penal offense was inadmissible. Duncan v. State, 149 Ga. 195, 99 S.E. 612 (1919).

- When 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).

- Superior court erred in finding that the later-filed action, seeking an intruder warrant, had to be abated according to O.C.G.A. § 9-2-44 because, per the explicit language of O.C.G.A. § 44-11-32, the case on the intruder warrant could not have been brought in the magistrate court and, thus, the prior pending action doctrine did not apply. Brixmor/IA Northeast Plaza, LLC v. Sublet Atlanta Realty, LLC, 347 Ga. App. 223, 818 S.E.2d 681 (2018).

Cited in Macon & A.R.R. v. Garrard, 54 Ga. 327 (1875); Harris v. Tison, 63 Ga. 629, 36 Am. R. 126 (1879); Watkins v. Lawton, 69 Ga. 671 (1882); Swift v. Dederick, 106 Ga. 35, 31 S.E. 788 (1898); Garlington v. Fletcher, 111 Ga. 861, 36 S.E. 920 (1900); Wilson v. Williams, 115 Ga. 474, 41 S.E. 629 (1902); Reynolds & Hamby Estate Mtg. Co. v. Martin, 116 Ga. 495, 42 S.E. 796 (1902); Conwell v. Neal, 118 Ga. 624, 45 S.E. 910 (1903); Quattlebaum v. State, 119 Ga. 433, 46 S.E. 677 (1904); Jordan v. Thornton, 5 Ga. App. 537, 63 S.E. 601 (1909); Moor v. Farlinger, 138 Ga. 359, 75 S.E. 423 (1912); Winkles v. Simpson Grocery Co., 138 Ga. 482, 75 S.E. 640 (1912); Central Bank & Trust Corp. v. State, 139 Ga. 54, 76 S.E. 587 (1912); Miller v. Franklin, 14 Ga. App. 180, 80 S.E. 549 (1914); Perrin v. Richardson, 142 Ga. 394, 83 S.E. 102 (1914); Loganville Banking Co. v. Forrester, 17 Ga. App. 246, 87 S.E. 694 (1915); Loganville Banking Co. v. Forrester, 19 Ga. App. 394, 91 S.E. 490 (1917); Acree v. Bandy, 20 Ga. App. 133, 92 S.E. 765 (1917); Winn v. Walker, 147 Ga. 427, 94 S.E. 468 (1917); Hill v. Cox, 151 Ga. 599, 107 S.E. 850 (1921); Allen v. Allen, 154 Ga. 581, 115 S.E. 17 (1922); Chastain v. Chastain, 163 Ga. 69, 135 S.E. 439 (1922); Sparks & Hutson v. Fort, 29 Ga. App. 531, 116 S.E. 227 (1923); New v. Quinn, 31 Ga. App. 102, 119 S.E. 457 (1923); Moody v. Williams, 157 Ga. 576, 122 S.E. 56 (1924); Cowart v. Brigman Motors Co., 32 Ga. App. 123, 122 S.E. 645 (1924); Bitting v. Chattooga County Bank, 159 Ga. 78, 124 S.E. 899 (1924); McNair v. Rabun, 159 Ga. 401, 126 S.E. 9 (1924); Holston Box & Lumber Co. v. Vonberg & Bates, 34 Ga. App. 298, 129 S.E. 562 (1925); Bank of Louisville v. Wheeler, 162 Ga. 635, 134 S.E. 753 (1926); First Nat'l Bank v. Pounds, 163 Ga. 551, 136 S.E. 528 (1927); Long v. Atlanta Trust Co., 164 Ga. 21, 137 S.E. 394 (1927); City of Atlanta v. Smith, 165 Ga. 146, 140 S.E. 369 (1927); Lovett v. Barwick, 39 Ga. App. 326, 147 S.E. 133 (1929); Miller v. Phoenix Mut. Life Ins. Co., 168 Ga. 321, 147 S.E. 527 (1929); McDonald Mtg. & Realty Co. v. Feingold, 168 Ga. 763, 149 S.E. 132 (1929); Henderson v. Henderson, 170 Ga. 457, 153 S.E. 182 (1930); Sells v. Sells, 175 Ga. 110, 165 S.E. 1 (1932); McEntyre v. Merritt, 49 Ga. App. 416, 175 S.E. 661 (1934); Fowler v. National City Bank, 49 Ga. App. 435, 176 S.E. 113 (1934); Coolidge v. Sandwich, 49 Ga. App. 563, 176 S.E. 524 (1934); Coolidge v. Sandwich, 49 Ga. App. 564, 176 S.E. 525 (1934); Rozetta v. Rozetta, 181 Ga. 494, 182 S.E. 847 (1935); Ellis v. First Nat'l Bank, 182 Ga. 641, 186 S.E. 813 (1936); Crider v. Harris, 183 Ga. 695, 189 S.E. 519 (1937); Loveless v. Carten, 64 Ga. App. 54, 12 S.E.2d 175 (1940); Stanton v. Gailey, 72 Ga. App. 292, 33 S.E.2d 747 (1945); Moon v. Price, 213 F.2d 794 (5th Cir. 1954); Threlkeld v. Whitehead, 95 Ga. App. 378, 98 S.E.2d 76 (1957); Galloway v. Merrill, 213 Ga. 633, 100 S.E.2d 443 (1957); Dowling v. Pound, 214 Ga. 298, 104 S.E.2d 465 (1958); Towler v. State Hwy. Dep't, 100 Ga. App. 374, 111 S.E.2d 154 (1959); Almon v. R.H. Macy & Co., 103 Ga. App. 372, 119 S.E.2d 140 (1961); Lowry v. Smith, 103 Ga. App. 601, 120 S.E.2d 47 (1961); Gay v. Crockett, 217 Ga. 288, 122 S.E.2d 241 (1961); Keith v. Darby, 104 Ga. App. 624, 122 S.E.2d 463 (1961); Banks v. Sirmans, 218 Ga. 413, 128 S.E.2d 66 (1962); Cozzort v. Cunningham, 107 Ga. App. 320, 130 S.E.2d 171 (1963); West v. Hatcher, 219 Ga. 540, 134 S.E.2d 603 (1964); Smith v. Smith, 219 Ga. 739, 135 S.E.2d 866 (1964); Housing Auth. v. Heart of Atlanta Motel, Inc., 220 Ga. 192, 137 S.E.2d 647 (1964); Banks v. Employees Loan & Thrift Corp., 112 Ga. App. 38, 143 S.E.2d 787 (1965); Bailey v. Louisville & N.R.R., 117 Ga. App. 185, 160 S.E.2d 245 (1968); Bishop v. Weems, 118 Ga. App. 180, 162 S.E.2d 879 (1968); Miami Properties, Inc. v. Fitts, 226 Ga. 300, 175 S.E.2d 22 (1970); Lowe v. Lowe, 123 Ga. App. 525, 181 S.E.2d 715 (1971); American Indem. Co. v. Wilingham, 124 Ga. App. 818, 186 S.E.2d 351 (1971); Price v. Georgia Indus. Realty Co., 132 Ga. App. 107, 207 S.E.2d 556 (1974); Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975); Perimeter Billjohn, Inc. v. Perimeter Mall, Inc., 141 Ga. App. 343, 233 S.E.2d 470 (1977); Sheppard v. Post, 142 Ga. App. 646, 236 S.E.2d 680 (1977); Rothstein v. Consuegra, 153 Ga. App. 620, 266 S.E.2d 309 (1980); Bedingfield v. Bedingfield, 248 Ga. 91, 281 S.E.2d 554 (1981); Greyhound Lines v. Cobb County, 681 F.2d 1327 (11th Cir. 1982); BBMS, Inc. v. Brown, 251 Ga. 409, 306 S.E.2d 288 (1983); Ranger v. First Family Mtg. Corp., 176 Ga. App. 715, 337 S.E.2d 388 (1985); Hose v. Jason Property Mgt. Co., 178 Ga. App. 661, 344 S.E.2d 483 (1986); Sheppard v. Georgia Farm Bureau Mut. Ins. Co., 181 Ga. App. 258, 351 S.E.2d 664 (1986); Atlanta Airmotive, Inc. v. Newnan-Coweta Airport Auth., 208 Ga. App. 906, 432 S.E.2d 571 (1993); DOCO Credit Union v. Chambers, 330 Ga. App. 633, 768 S.E.2d 808 (2015); White v. Ringgold Tel. Co., 334 Ga. App. 325, 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

This section must be construed in harmony with other sections to the effect that judgment of court of competent jurisdiction, if not absolutely void for some reason, shall be conclusive between same parties and their privies until it is reversed or set aside, and may not be impeached collaterally. Hadden v. Fuqua, 194 Ga. 621, 22 S.E.2d 377 (1942).

Questions settled by former final judgment cannot be litigated in other actions, directly or indirectly. Smith v. Robinson, 214 Ga. 835, 108 S.E.2d 317 (1959).

- Subsequent suit on different cause of action will be conclusive as to any matter actually in issue and determined by the court. Christian v. Penn, 7 Ga. 434 (1849); Price v. Carlton, 121 Ga. 12, 48 S.E. 721, 68 L.R.A. 736 (1904).

All questions between parties that are once and finally settled by solemn decree must be considered as an end to litigation; they cannot be relitigated in other actions, directly or indirectly. Lankford v. Holton, 196 Ga. 631, 27 S.E.2d 310 (1943).

Adjudication of same subject matter at issue in former action between same parties, by court of competent jurisdiction, puts an end to litigation. Buie v. Buie, 175 Ga. 27, 165 S.E. 15 (1932).

Former judgment is conclusive as to all facts which could have been ascertained and pled at original trial by use of proper diligence. Gladden v. Cobb, 80 Ga. 11, 6 S.E. 163 (1887); McHan v. McHan, 178 Ga. 730, 174 S.E. 336 (1934).

- Res judicata and estoppel by judgment can only be set up in a subsequent action between same parties or their privies. Harris v. Jacksonville Paper Co., 67 Ga. App. 759, 21 S.E.2d 537 (1942); Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952).

Before judgment in former action will operate as a bar to subsequent action involving same subject matter, it must appear that former action was between the same parties or their privies. Russ Transp., Inc. v. Jones, 104 Ga. App. 612, 122 S.E.2d 282 (1961).

In order for doctrine of collateral estoppel (estoppel by judgment) to be applied, parties to the two actions must be identical, or "privity" must exist with former party so as to provide for mutuality of application of former action. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967).

Phrase "same parties" does not mean that all of the parties on the respective sides of litigation in two cases shall have been identical, but means that those who invoke defense of res judicata or estoppel of judgment and those against whom defense is invoked must be the same. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

- It is not required that all the parties on respective sides of litigation be identical, but is sufficient if those by and against whom the defense of res judicata or estoppel by judgment is invoked are real parties at interest or privies as to controversy in former case. National Life & Accident Ins. Co. v. Leo, 50 Ga. App. 473, 178 S.E. 322 (1934).

- Prerequisite of identity of parties includes privies, who are usually defined as all persons who are represented by parties and claim under them, the term "privity" denoting a mutual or successive relationship to the same rights of property, but not different rights in the same property. Life & Cas. Ins. Co. v. Webb, 112 Ga. App. 344, 145 S.E.2d 63 (1965).

Judgment is not conclusive as to third persons. Huggins v. State, 25 Ga. App. 38, 103 S.E. 32 (1920).

Judgment is not conclusive as to one who was not a party to proceeding in which it was rendered or one over whom court acquired no jurisdiction, even if the latter was named as party defendant. Colodny v. Krause, 141 Ga. App. 134, 232 S.E.2d 597, cert. denied, 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177 (1977).

- Record of former adjudication founded on pleadings of which no service was made or waiver thereof had is not admissible in subsequent suit. Muller v. Rhuman, 62 Ga. 332 (1879).

When original petition showed total want of jurisdiction and there was no attempt to serve amended petition upon defendant and no appearance or waiver by the defendant, the defendant was not concluded by final verdict and judgment rendered. Smith v. Downing Co., 21 Ga. App. 741, 95 S.E. 19 (1913).

When substituted service of divorce action was accomplished by publication, mailing copy of process to nonresident defendant and having private individual hand copy to defendant, there was such total lack of personal service that defendant's rights could not be constitutionally adjudicated and res judicata could not operate. Daniel v. Daniel, 222 Ga. 861, 152 S.E.2d 873 (1967).

If former action is dismissed for lack of jurisdiction, plaintiff is not prohibited from commencing another suit for same cause against same party in court having jurisdiction to grant relief sought. Harrison v. Speidel, 244 Ga. 643, 261 S.E.2d 577 (1979).

This section does not operate as a bar when a judgment is set aside. Taylor v. Smith, 4 Ga. 133 (1848).

An erroneous judgment, while it stands unvacated, is a bar to another proceeding. Crutchfield v. State, 24 Ga. 335 (1858); Allen v. Allen, 154 Ga. 581, 115 S.E. 17 (1922).

- To determine whether former recovery is bar to subsequent action, a good test is whether the same evidence will support both actions. Lynch v. Jackson, 31 Ga. 668 (1860).

Two causes of action involve same subject matter if same evidence would be necessary to sustain either of them. Jones v. Rich's, Inc., 81 Ga. App. 841, 60 S.E.2d 402 (1950).

In order for former recovery to be pled in bar of subsequent action, two actions must be between same parties and on same cause of action, and test of identity of cause of action is whether same evidence will support both. Pekrol v. Collins, 122 Ga. App. 642, 178 S.E.2d 294 (1970).

Any conclusion which court or jury must evidently have arrived at in order to reach judgment or verdict rendered will be fully concluded under this section. Kelly & Jones Co. v. Moore, 128 Ga. 683, 58 S.E. 181 (1907).

- While res judicata applies only as between same parties and upon same cause of action to matters which were actually in issue or which under rules of law could have been put in issue, estoppel by judgment applies as between same parties upon any cause of action to matters which were directly decided in former suit. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

Under both res judicata and estoppel by judgment, in order for former decision to be conclusive it must have been based, not merely on purely technical grounds, but at least in part on the merits, when under the pleadings they were or could have been involved. Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833 (1938).

- To make a matter res adjudicata, there must be a concurrence: (1) of identity of the subject-matter; (2) of the cause of action; (3) of persons and parties; and (4) in the quality of the person against whom the claim is made. Stevens v. Stembridge, 104 Ga. 619, 31 S.E. 413 (1898); Price v. Carlton, 121 Ga. 12, 48 S.E. 721 (1904); Edwards v. Carlton, 98 Ga. App. 230, 105 S.E.2d 372 (1958).

In order for party to take advantage of doctrine of res judicata in subsequent action brought against that party after termination of first action, there are three prerequisites to which the situation must conform: (1) identity of the parties; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must concur. Lewis v. Price, 104 Ga. App. 473, 122 S.E.2d 129 (1961); Life & Cas. Ins. Co. v. Webb, 112 Ga. App. 344, 145 S.E.2d 63 (1965); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

In order for doctrine of res judicata to apply, there must be identity of parties, identity of cause of action, and adjudication by court of competent jurisdiction. Dixie Home Bldrs., Inc. v. Waldrip, 146 Ga. App. 464, 246 S.E.2d 471 (1978).

Prior judgment is res judicata only as to actions involving same cause of action. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

- No judgment can be relied on in subsequent suit as res judicata of any issue in latter suit unless both suits are on same cause of action. Smith v. C.I.T. Corp., 69 Ga. App. 516, 26 S.E.2d 146 (1943).

Judgment or decree of court of competent jurisdiction upon the merits concludes parties and privies to litigation and constitutes bar to new action involving same cause of action either before same or any other tribunal. Smith v. C.I.T. Corp., 69 Ga. App. 516, 26 S.E.2d 146 (1943).

Causes of action in two suits must be identical in order for doctrine of res judicata to bar second action. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967).

Requirement that two cases be of "the same cause of action" is founded on doctrine that no one should be twice harassed for one and the same cause. Schoen v. Home Fed. Sav. & Loan Ass'n, 154 Ga. App. 68, 267 S.E.2d 466 (1980).

- 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).

- Under this section, to make judgment in one action binding in another there must be not only identity of parties but also identity of subject matter. Brady v. Pryor, 69 Ga. 691 (1882).

- Under doctrine of res adjudicata, whenever there has been a judgment by court of competent jurisdiction in former litigation between same parties, based upon same cause of action as pending litigation, litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation. Harvey v. Wright, 80 Ga. App. 232, 55 S.E.2d 835 (1949).

When issues presented by pleadings in pending action could have been inquired into and adjudicated in former action between same parties based upon same cause of action, adjudication of former suit on merits is res judicata of all issues presented in the pending suit. Mize v. Mize, 80 Ga. App. 441, 56 S.E.2d 121 (1949).

Plea of res adjudicata is in the nature of an estoppel. Walden v. Walden, 128 Ga. 126, 57 S.E. 323 (1907).

Plea of res adjudicata is not a dilatory plea. Hill v. Cox, 151 Ga. 599, 107 S.E. 850 (1921).

Defense of res judicata must be sustained by proof clearly showing identity of parties and causes of action together with valid judgment. Uddyback v. George, 223 Ga. 311, 154 S.E.2d 577 (1967).

- Doctrine of estoppel by judgment has reference to previous litigation between same parties based upon a different cause of action, and applies only to such matters as were necessarily or actually adjudicated in the former litigation. Farmer v. Baird, 35 Ga. App. 208, 132 S.E. 260 (1926); Harvey v. Wright, 80 Ga. App. 232, 55 S.E.2d 835 (1949).

Doctrine of estoppel by judgment has reference to previous litigation between same parties, based upon different cause of action, and provides for estoppel by judgment only as to such matters within scope of previous pleadings as necessarily had to be adjudicated in order for previous judgment to be rendered, or as to such matters within scope of pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833 (1938).

- Traditional threshold requirements for application of doctrine of collateral estoppel (estoppel by judgment) are that: (1) the issue to be concluded must be identical to that involved in the prior action; (2) in the prior action the issue must have been "actually litigated;" and (3) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment. If any one of these requirements is lacking, there is no collateral estoppel. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

- Estoppel by judgment occurs only when issue determined in prior proceeding is the same as that in subsequent proceeding. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

- Judgment or decree is an estoppel to parties thereto and their privies if it relates to same subject matter and decides same question; but if that question came collaterally before the court and was only incidentally considered, judgment or decree is not an estoppel. Evans v. Birge, 11 Ga. 265 (1852).

In order for relitigation of particular question to be estopped by former judgment, question must have been "necessary" to former judgment and have been one of the "ultimate" questions or facts in issue, as opposed to supporting evidentiary or "mediate" question. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967).

- There is estoppel by judgment only as to such matters within scope of previous pleadings as necessarily had to be adjudicated in order for previous judgment to be rendered, or as to such matters within scope of those pleadings which are shown by aliunde proof to have been actually litigated and determined. Harvey v. Wright, 80 Ga. App. 232, 55 S.E.2d 835 (1949).

There is estoppel by judgment only as to such matters as were necessarily or actually adjudicated in former litigation. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

- Distinguishing feature of doctrine of collateral estoppel is that it precludes relitigation in a subsequent action of fact issues actually determined in prior suit, regardless of whether prior determination was based on same cause of action. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Plaintiff is not permitted to split single cause of action so as to seek in successive litigation enforcement of first one remedy and then a second. Massey v. Stephens, 155 Ga. App. 243, 270 S.E.2d 796 (1980).

Generally, single cause of action with several elements of damage admits of but one action, when there is an identity of subject matter and of parties. Massey v. Stephens, 155 Ga. App. 243, 270 S.E.2d 796 (1980).

Parties will not be allowed to try same issue twice by multiplying their claims, regardless of fact that they may be able to introduce more evidence on second trial than they did so first. Johnson v. Lovelace, 61 Ga. 62 (1878).

In order to defeat plea of res judicata, plaintiff must allege that the plaintiff did not know all the facts when the former action was begun or why the plaintiff could not then have set them up. Perrin v. Richardson, 142 Ga. 394, 83 S.E. 102 (1914).

- Effect of final judgment cannot be avoided by showing cause against it under guise of amendment to the pleadings; amendments are admissible to uphold judgments, but not to overturn them. Goldsmith v. Georgia R.R., 62 Ga. 542 (1879).

- When defendant is served, appears, and pleads in original suit and verdict and judgment are rendered against the defendant, the defendant cannot, upon motion to vacate judgment, urge matters of defense which could have been put in issue in original suit. Hardwick v. Hatfield, 30 Ga. App. 760, 119 S.E. 430, cert. denied, 30 Ga. App. 801 (1923).

Prior judgment cannot be avoided by slight differences in pleadings in second petition. Hill v. Cox, 151 Ga. 599, 107 S.E. 850 (1921); Standard Steel Works Co. v. Williams, 158 Ga. 434, 124 S.E. 21 (1924).

- Judgment sustaining general demurrer (now motion to dismiss) to petition brought to recover damages caused by alleged negligence of defendant will bar second suit by same plaintiff against same defendant for same alleged cause of action, despite fact that grounds of negligence upon which second petition is based are different from those embraced in first suit. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952).

Additional relief sought in second petition for injunction will not defeat plea of res adjudicata. Gunn v. James, 120 Ga. 482, 48 S.E. 148 (1904); Coleman v. Fields, 142 Ga. 205, 82 S.E. 529 (1914).

- Cause of action for wrongful death available to wife's survivors is a separate and distinct cause of action from that of wife for her pain and suffering, and prior recovery in behalf of husband and minor children for full value of life of wife does not constitute a bar to subsequent action by administrator of wife's estate to recover for her pain and suffering. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S.E.2d 208 (1958).

Spouse's action for loss of consortium due to injuries to the spouse is part of single cause of action for personal injury and property damage when all elements of damage arise from single occurrence. Pekrol v. Collins, 122 Ga. App. 642, 178 S.E. 294 (1970).

- Single wrongful or negligent act which injures both one's person and property gives but a single cause of action, and settlement of property damages will, when pled, bar an action on account of injuries to the person when both items of damage are result of single occurrence. Pekrol v. Collins, 122 Ga. App. 642, 178 S.E.2d 294 (1970).

When a person sustains personal, physical and property damage from a single wrongful or negligent act, the tort to the person and property constitutes a single cause of action which should be presented for determination in a single action, unless the defendant consents to the splitting of the cause of action. Pekrol v. Collins, 122 Ga. App. 642, 178 S.E.2d 294 (1970).

Judgment in former action for three installments of year's salary was good defense to second action for remaining months, as to all matters adjudicated. Kelly & Jones Co. v. Moore, 128 Ga. 683, 58 S.E. 181 (1907).

Plea to jurisdiction in action on running account which has been split and decided adversely to defendant cannot be urged in objection to second action on remainder of account. Johnson v. Klassett, 9 Ga. App. 733, 72 S.E. 174 (1911).

- When judgment of lower court is affirmed generally by appellate court and another trial refused, such judgment is conclusive between the same parties and their privies as to all matters put in issue or which might have been put in issue in case wherein judgment was rendered. Hixon v. Callaway, 5 Ga. App. 415, 63 S.E. 518 (1909).

Stay operates as bar to further actions for the same indebtedness between the same parties, and order granting stay amounts to a judgment. Stein Steel & Supply Co. v. Wilkins, 102 Ga. App. 389, 116 S.E.2d 507 (1960).

Stay because of adjudication of bankruptcy of party, which is neither appealed and reversed nor set aside, has effect of judgment barring further proceedings by plaintiff in the case. Stein Steel & Supply Co. v. Wilkins, 102 Ga. App. 389, 116 S.E.2d 507 (1960).

Judgments of habeas corpus may be properly pled to subsequent actions. Perry v. McLendon, 62 Ga. 598 (1879).

Previous judgment overruling motion to set aside amounted to adjudication that original judgment could not be set aside for any reason which was or might have been assigned, and rendered a subsequent motion in arrest subject to application of res judicata. Farmer v. Baird, 35 Ga. App. 208, 132 S.E. 260 (1926).

- Voluntary dismissal, with prejudice, of defendant bank in action for penalties under federal Truth-In-Lending Act, 15 U.S.C. § 1601 et seeq., merged plaintiffs' entire cause of action for nondisclosures under the Act and barred any subsequent action in this state against seller for the seller's joint liability for failure to make disclosures in the same transaction. Massey v. Stephens, 155 Ga. App. 243, 270 S.E.2d 796 (1980).

Judgment adjudicating legal or equitable title to land will estop a later inconsistent action in ejectment among the same parties, a later dispossessory proceeding, or other suit touching right to entitlement between the parties. Schoen v. Home Fed. Sav. & Loan Ass'n, 154 Ga. App. 68, 267 S.E.2d 466 (1980).

- When court of competent jurisdiction in dismissing cross action, necessarily decides its merits, this decision may be pled in bar of subsequent action between same parties on same subject matter. Mize v. Mize, 80 Ga. App. 441, 56 S.E.2d 121 (1949).

- When third party who has knowledge of pendency of action and fails to protect the third party's rights, this section will operate as a bar. Latimer v. Irish-American Bank, 119 Ga. 887, 47 S.E. 322 (1904).

When predecessor in title of defendant was party to action, defendant is a privy in estate and is estopped by decree rendered in former action. Hopkins v. Martin, 153 Ga. 238, 112 S.E. 117 (1922).

- When defendant in action of ejectment brought an action over against a warrantor of title and vouched the warrantor into court by giving notice of pendency of the action, judgment rendered therein would be conclusive upon party vouched. Taylor v. Allen, 131 Ga. 416, 62 S.E. 291 (1908).

Claimant who interposed claim by amendment in action is concluded by adverse judgment. Pollard v. King, 63 Ga. 224 (1879); Garlington v. Fletcher, 111 Ga. 861, 36 S.E. 920 (1900); McLendon v. Schumate, 128 Ga. 526, 57 S.E. 886 (1907); Exchange Nat'l Bank v. Covington, 160 Ga. 131, 127 S.E. 453 (1925).

Since in cases of attachment claim may be interposed either before or after judgment, when claimant, in response to levy of execution in attachment, filed claim to property in hands of garnishee, the claimant was not estopped by previous judgment in favor of plaintiff in attachment against garnishee on the issue tried, on traverse of the claimant's answer, to which such claimant was not a party, nor was the claimant bound merely by reason of fact that during trial of traverse to garnishee's answer, the claimant was physically present but took no part therein. Tarver v. Jones, 34 Ga. App. 716, 131 S.E. 102 (1925).

- When party to contract seeks to enforce the contract by specific performance and obtains a decree thereon, the contract is merged into the decree; such contract and decree founded upon it will not be set aside at instance of party who took it, in absence of any allegation of fraud, accident, or mistake, or that insolvency had occurred since it was rendered. Cunningham v. Schley, 68 Ga. 105 (1881).

- When in former action defendant pleaded breach of contract in setoff or recoupment against plaintiff, all breaches of contract up to commencement of former action and amount due complaining party were conclusively presumed to have been included in first action. Chappell v. F.A.D. Andrea, Inc., 47 Ga. App. 816, 171 S.E. 582 (1933).

There cannot be subsequent actions for breaches of contract which have already occurred prior to commencement of first suit on contract, even though they were not included in first suit. Chappell v. F.A.D. Andrea, Inc., 47 Ga. App. 816, 171 S.E. 582 (1933).

When state did not avail itself of right to recover principal and interest in former action, it is estopped from setting up claim for interest. Central Bank & Trust Corp. v. State, 139 Ga. 54, 76 S.E. 587 (1912).

- When action is brought by payee of series of notes given for balance of purchase price of item on one or more of such notes and defendant pleads failure of consideration, verdict and judgment in the defendant's favor can be pled as res judicata to suit on other notes of the same series under this section. Puffer Mfg. Co. v. Rivers, 10 Ga. App. 154, 73 S.E. 20 (1911).

When subject matter of defense to promissory note has been passed upon by court of competent jurisdiction, such judgment, while in force, is conclusive. Freeman v. Bass, 34 Ga. 355, 89 Am. Dec. 255 (1866).

- If a question could have been litigated in former controversy between same parties, judgment rendered in that case settles the question as to all property involved in that litigation; but to settle the question as to other property, it must appear that it was actually litigated, not only that it might have been. Sloan v. Price, 84 Ga. 171, 10 S.E. 601, 20 Am. St. R. 354 (1890).

Judgment discharging administrator relieves the administrator from further liability to those interested in estate, unless such judgment is set aside either on motion in probate court or by equitable proceeding in superior court. Stanton v. Gailey, 72 Ga. App. 292, 33 S.E.2d 747 (1945).

- When subject matter and cause of action of instant action was alleged use of plaintiff architect's plans in construction by defendant of two houses and subject matter of former action was alleged use of one plan in constructing other houses, there was no identity of subject matter or cause of action and trial court erred in sustaining plea of res judicata. Edwards v. Carlton, 98 Ga. App. 230, 105 S.E.2d 372 (1958).

Prior decree of cotenancy did not estop defendant from applying for partition as no such question was involved in original suit. Roberts v. Federal Land Bank, 180 Ga. 832, 181 S.E. 180 (1935).

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

- Suit for partition is not a proceeding in rem, nor is final judgment binding by reason of this section on any of the cotenants who are not brought within jurisdiction of court by some service of process, actual or constructive. Childs v. Hayman, 72 Ga. 791 (1884).

Plaintiff was not estopped by judgment rendered in probate court in proceeding to which the plaintiff was not a party, despite fact that the plaintiff appeared as witness therein. McAfee v. Martin, 211 Ga. 14, 83 S.E.2d 605 (1954).

- One with right of subrogation accruing before bringing of action in which judgment was rendered is not a privy under this section so as to be concluded by judgment, especially when right of subrogation is claimed on an item of damage expressly excluded from that action. Seaboard Air-Line Ry. v. Insurance Co., 18 Ga. App. 341, 89 S.E. 438 (1916).

- Under this section, issue made by plea of former recovery should be submitted to jury under proper instructions from court as to effect of adjudication pleaded in bar, but when record so pled shows that matter in controversy had been fully determined in former suit, court may dismiss the case on motion. Robinson v. Wilkins, 74 Ga. 47 (1884).

This section prohibits plaintiff from prosecuting two actions in court for same cause and against same party and, if the actions are commenced at different times, pendency of the former shall be a good defense to the latter. Harrison v. Speidel, 244 Ga. 643, 261 S.E.2d 577 (1979).

- Individual cannot pursue at the same time against same defendant cause of action based upon same subject matter in two different courts, and a plea in second suit of pendency of former suit will cause abatement of second action. Jones v. Rich's, Inc., 81 Ga. App. 841, 60 S.E.2d 402 (1950).

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).

- Pendency of former suit for same cause of action, between same parties, in any court with jurisdiction, constitutes good cause of abatement, provided first action is not so defective as to prevent recovery therein. Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942).

Pendency of former suit for same cause of action shall not abate second action if the first action is so defective that no recovery can possibly be had. Dobson v. Truscon Steel Co., 70 Ga. App. 574, 28 S.E.2d 870 (1944).

First action must be so defective upon its face that legal recovery cannot be had thereon in order to preclude abatement. Jones v. Rich's, Inc., 81 Ga. App. 841, 60 S.E.2d 402 (1950).

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

When it cannot be said that two proceedings arise out of same transaction or that allowing the present action to proceed to trial while the first case is pending on appeal is unnecessary, and consequently oppressive, a plea in abatement is without merit. Cheely v. State, 251 Ga. 685, 309 S.E.2d 128 (1983).

- Even though there was a common issue of liability in each of two actions brought by a party, when 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).

- Pendency of former action for same cause of action, between same parties, does not cause abatement of second action, if it appears on the face of the proceedings that first action was instituted in a court with no jurisdiction of the subject matter of the action; in such a case, the nonjurisdiction of that court may be determined by court in which second action was instituted. Cantrell v. Davis, 46 Ga. App. 710, 169 S.E. 39 (1933).

- In order for pendency of former action to be basis of plea in abatement to subsequent action, both must be for same cause of action and between same parties. Latex Filler & Chem. Co. v. Chapman, 139 Ga. App. 382, 228 S.E.2d 312 (1976).

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).

Even when causes of action are legally disparate and rest in opposite parties, if they arise out of the same transaction and if the second action would resolve the same issues as the first pending action and would therefore be unnecessary and oppressive, the second action shall abate. Schoen v. Home Fed. Sav. & Loan Ass'n, 154 Ga. App. 68, 267 S.E.2d 466 (1980).

- When basis for wrongful death action brought by a parent arose out of same transaction (automobile collision) as pending original action brought against the parent, in which the parent counterclaimed for the parent's personal injuries and damages, wrongful death complaint would be dismissed without prejudice so that plaintiff could file counterclaim in original action. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 222 S.E.2d 878 (1975).

Priority of pending actions is determined by dates of filing, if service has been effected; service or waiver is essential, but when made it relates back to date of filing, which establishes date action is commenced. Jackson v. Schulman, 142 Ga. App. 625, 237 S.E.2d 4 (1977).

- If identical actions are filed at different times, pendency of the first is cause for abatement of the second, and whether first action was appealed before or after second was filed is irrelevant. Almand v. Northern Assurance Co., 88 Ga. App. 664, 77 S.E.2d 321, rev'd on other grounds, 210 Ga. 243, 78 S.E.2d 788 (1953).

When defendant files counterclaim after plaintiff voluntarily dismisses action, counterclaim does not keep suit pending so as to authorize abatement of another suit. Swanson v. Holloway, 128 Ga. App. 453, 197 S.E.2d 151 (1973).

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

- Proof of pendency of action for divorce between parties does not operate to prevent judge on interlocutory hearing from making award of temporary alimony and custody of children pending litigation. Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504 (1942).

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

- 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).

- Pendency of action for damages brought against two counties for wrongful taking and appropriation of right of way over plaintiffs' lands does not prevent subsequent proceeding brought by state to condemn the land for same purposes. Cook v. State Hwy. Bd., 162 Ga. 84, 132 S.E. 902 (1926).

- 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).

Parol Evidence

Application of subsection (b).

- Subsection (b) of this section has no application to a proper case when a plea of res judicata is filed. Kennedy v. McCarthy, 73 Ga. 346 (1884).

Subsection (b) of this section governs those cases where a judgment is pled as an estoppel, and both parties are entitled to the benefit of this rule. Irvin v. Spratlin, 127 Ga. 240, 55 S.E.2d 1037, 9 Ann. Cas. 341 (1906).

Defendant may prove by parol evidence that court had no jurisdiction of former case. Dix v. Dix, 132 Ga. 630, 64 S.E. 790 (1909).

When record shows uncertainty whether same matters have been litigated in the former action or whether the judgment rendered is conclusive upon present issues, parol evidence is admissible. Mortgage Bond & Trust Co. v. Colonial Hill Co., 175 Ga. 150, 165 S.E. 25 (1932).

RESEARCH REFERENCES

Am. Jur. 2d.

- 1 Am. Jur. 2d, Abatement, Survival, and Revival, § 6 et seq. 29A Am. Jur. 2d, Evidence, §§ 910, 917, 934, 1002.

- 1 C.J.S., Abatement and Revival, § 21. 32A C.J.S., Evidence, §§ 1132, 1133, 1146.

- Application of doctrine of res judicata to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 2 A.L.R. 534; 142 A.L.R. 905.

Judgment against claim based on original form of indebtedness as res judicata as to claim based on new or substituted obligation, 4 A.L.R. 1173.

Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306.

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

Judgment on claim as bar to action to recover amount of payment which was not litigated in previous action, 13 A.L.R. 1151.

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.

Judgment in action on commercial paper as affecting party to the paper who was not a party to the suit, 34 A.L.R. 152.

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

Judgment for rent for particular period as bar to action for rent for subsequent period, 42 A.L.R. 128.

Foreign judgment based upon or which fails to give effect to a judgment previously rendered at the forum or in a third jurisdiction, 44 A.L.R. 457; 53 A.L.R. 1146.

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

Judgment in action for death as a bar to an action for the same death in another jurisdiction or under another statute, 53 A.L.R. 1275.

Judgment in action or proceeding involving an installment of an assessment for a public improvement as res judicata as regards other installments of assessments, 74 A.L.R. 880.

Judgment in rem or quasi in rem upon constructive service against nonresident as res judicata as regards personal rights, 89 A.L.R. 1102.

Relation between survivability of cause of action and abatability of pending action, 92 A.L.R. 956.

Judgment as res judicata of usury notwithstanding question as to usury was not raised, 98 A.L.R. 1027.

Decree in suit by judgment creditor to set aside conveyance in fraud of creditors as bar to another suit for same purpose in respect of another conveyance, 108 A.L.R. 699.

Plea of abatement because of pendency of prior action as affected by termination of that action, 118 A.L.R. 1477.

Pleading waiver, estoppel, and res judicata, 120 A.L.R. 8.

Res judicata as regards decisions or awards under workmen's compensation acts, 122 A.L.R. 550.

Judgment in action by third person against insured as res judicata in favor of indemnity or liability insurer which was not a nominal party, 123 A.L.R. 708.

Conclusiveness, as to negligence or contributory negligence, of judgment in death action, in subsequent action between defendant in the death action and statutory beneficiary of that action, as affected by objection of lack of identity of parties, 125 A.L.R. 908.

Judgment in action by or against corporation as res judicata in action by or against stockholder or officer of corporation, 129 A.L.R. 1041.

Doctrine of res judicata in income tax cases, 130 A.L.R. 374; 140 A.L.R. 797.

Judgment in action growing out of accident as res judicata, as to negligence or contributory negligence, in later action growing out of same accident by or against one not a party to earlier action, 133 A.L.R. 181; 23 A.L.R.2d 710.

Necessity, as condition of effectiveness of express finding on a matter in issue to prevent relitigation of question in later case, that judgment in former action shall have rested thereon, 133 A.L.R. 840.

Ruling on creditor's claim in bankruptcy as res judicata in subsequent proceeding by trustee to recover voidable preference or transfer, 134 A.L.R. 1191; 165 A.L.R. 1413.

Judgment as res judicata or conclusive as to party's attorney who was not himself a party, 137 A.L.R. 586.

Decree in suit for separation as res judicata in subsequent suit for divorce or annulment, 138 A.L.R. 346; 90 A.L.R.2d 745.

Application of rule against splitting cause of action, or of doctrine of res judicata, to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 142 A.L.R. 905.

Judgment as res judicata as to whether insured is "permanently disabled" within contemplation of insurance policy, 142 A.L.R. 1170.

Judgment in partition as res judicata, 144 A.L.R. 9.

Judgment in tax cases in respect of one period as res judicata in respect of another period, 150 A.L.R. 5; 162 A.L.R. 1204.

Privity between cotenants for purposes of doctrine of res judicata, 169 A.L.R. 179.

Judgment in suit for cancellation of restrictive covenant on ground of change in neighborhood as res judicata in suit for injunction against enforcement of covenant on that ground, and vice versa, 10 A.L.R.2d 357.

Extent to which principles of res judicata are applicable to judgments in actions for declaratory relief, 10 A.L.R.2d 782.

Judgment avoiding indemnity or liability policy for fraud as barring recovery from insurer by or on behalf of third person, 18 A.L.R.2d 891.

Decree granting or refusing injunction as res judicata in action for damages in relation to matter concerning which injunction was asked in first suit, 26 A.L.R.2d 446.

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.

Divorce decree as res judicata in independent action involving property settlement agreement, 32 A.L.R.2d 1145.

Acquittal on homicide charge as bar to subsequent prosecution for assault and battery, or vice versa, 37 A.L.R.2d 1068.

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.

Applicability of res judicata to decrees or judgments in adoption proceedings, 52 A.L.R.2d 406.

Dismissal of civil action for want of prosecution as res judicata, 54 A.L.R.2d 473.

Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.

Judgment determining question of coverage of automobile liability policy as between insurer and one claiming to be insured as res judicata in subsequent action by injured person against insurer, 69 A.L.R.2d 858.

Judgment in action by or against stockholder or corporate officer as res judicata in action by or against corporation, 81 A.L.R.2d 1323.

Res judicata as affected by limitation of jurisdiction of court which rendered judgment, 83 A.L.R.2d 977.

Raising res judicata by motion for summary judgment under Federal Rule 56 and similar state statutes or rules, 95 A.L.R.2d 648.

Conviction or acquittal in previous criminal case as bar to revocation or suspension of driver's license on same factual charges, 96 A.L.R.2d 612.

Circumstances under which court may abate a prior action and permit parties to proceed in subsequent action, 6 A.L.R.3d 468.

Modern status of doctrine of res judicata in criminal cases, 9 A.L.R.3d 203.

Judgment in spouse's action for personal injuries as binding, as regards loss of consortium and similar resulting damage, upon other spouse not a party to the action, 12 A.L.R.3d 933.

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

Judgment in action on express contract for labor or services as precluding, as a matter of res judicata, subsequent action on implied contract (quantum meruit) or vice versa, 35 A.L.R.3d 874.

Decree allowing or denying specific performance of contract as precluding, as a matter of res judicata, subsequent action for money damages for breach, 38 A.L.R.3d 323.

Judgment against parents in action for loss of minor's services as precluding minor's action for personal injuries, 41 A.L.R.3d 536.

When does jeopardy attach in a nonjury trial?, 49 A.L.R.3d 1039.

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.