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Lawskills.com Georgia Caselaw
GULF OIL CORPORATION v. PENTECOST.
49630.
PANNELL, Presiding Judge.
Action for damages. Fulton Superior Court. Before Judge Langford.
1. Appellant, Gulf Oil Corporation, initially enumerates as error that the trial court failed to grant its motion for summary judgment because the dismissal of the first suit was res judicata. We think that decision in this case is controlled by the decisions of this court in the cases of Old South Investment Co. v. Aetna Insurance Co., 124 Ga. App. 697 (185 SE2d 584); Zaun v. Nobles, 128 Ga. App. 846 (198 SE2d 326); Krasner v. Verner Auto Supply, 130 Ga. App. 892 (204 SE2d 770). There, as here, the dismissal for failure to prosecute was involuntary and on the court's own motion under the Civil Practice Act, Section 41 (b) (Code Ann. 81A-141 (b)), with the trial court not specifying that the dismissal was without prejudice. Accordingly, in the case sub judice, the dismissed suit is res judicata as to the present suit and the trial court erred in denying defendant's motion for summary judgment.
2. The remaining enumerations of error are controlled adversely to appellee by our decision herein.
Andrew J. Hairston, for appellee.
Neely, Freeman & Hawkins, William Q. Bird, for appellant.
ARGUED OCTOBER 3, 1974 -- DECIDED JANUARY 6, 1975.
Friday May 22 10:14 EDT


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