2021 Georgia Code
Title 9 - Civil Practice
Chapter 12 - Verdict and Judgment
Article 2 - Effect of Judgments
§ 9-12-42. Judgment No Bar Absent Decision on Merits
Where the merits were not and could not have been in question, a former recovery on purely technical grounds shall not be a bar to a subsequent action brought so as to avoid the objection fatal to the first. For a former judgment to be a bar to subsequent action, the merits of the case must have been adjudicated.
(Civil Code 1895, § 5095; Civil Code 1910, § 5679; Code 1933, § 110-503.)
Law reviews.- For note discussing the requirement that an adjudication be on the merits for the principles of res judicata to apply, see 11 Ga. L. Rev. 929 (1977). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).
JUDICIAL DECISIONSANALYSIS
- General Consideration
- Dismissed Actions
- Estoppel by Judgment
- Application
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Judgments, §§ 463, 540 et seq.
C.J.S.- 50 C.J.S., Judgments, § 979 et seq.
ALR.
- 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.
Jurisdiction of action by mother or child for support of child born after divorce in another state or country, 32 A.L.R. 659.
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.
Judgment in action for services of physician or surgeon as bar to action against him for malpractice, 49 A.L.R. 551.
Delegation to police officer of power to direct street traffic, 60 A.L.R. 504.
Error in excluding recovery for future or permanent damages as affecting the operation of judgment as bar or res judicata in subsequent action to recover future damages, 69 A.L.R. 1004.
Judgment in favor of defendant in action for personal injuries as bar to suit for death caused by such injuries, and vice versa, 99 A.L.R. 1091.
Decree settling account of executor who is also trustee as res judicata in respect of his liability in capacity of trustee, 116 A.L.R. 1290.
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.
Judgment as conclusive as against, or in favor of one not a party of record or privy to a party, who prosecuted or defended suit on behalf and in the name of party, or assisted him or participated with him in its prosecution or defense, 139 A.L.R. 9.
Application of rule against splitting cause of action, or of doctrine of res judicata, to item of single cause of action doctrine of res judicata, to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 142 A.L.R. 905.
Provision that judgment is "without prejudice" or "with prejudice" as affecting its operation as res judicata, 149 A.L.R. 553.
Judgment in action for damages to real property situated in another state or county as conclusive in respect of title, 158 A.L.R. 362.
Judgment for defendant based on the statute of limitations as bar to maintenance of action in another state, 164 A.L.R. 693.
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.
Divorce decree as res judicata in independent action involving property settlement agreement, 32 A.L.R.2d 1145.
Domestic divorce decree without adjudication as to alimony, rendered on personal service or equivalent, as precluding later alimony award, 43 A.L.R.2d 1387.
Dismissal of civil action for want of prosecution as res judicata, 54 A.L.R.2d 473.
Decree in suit for "separation" as res judicata in subsequent suit for divorce or annulment, 90 A.L.R.2d 745.
Res judicata or collateral estoppel effect, in states where real property is located, of foreign decree dealing with such property, 32 A.L.R.3d 1330.
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.
Modern views of state courts as to whether consent judgment is entitled to res judicata or collateral estoppel effect, 91 A.L.R.3d 1170.
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.
