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Lawskills.com Georgia Caselaw
ZAUN v. NOBLES.
47733.
BELL, Chief Judge.
Dismissal of action. Lowndes Superior Court. Before Judge Calhoun.
In this case a prior action between the same parties for the same claim was dismissed by the trial court for the plaintiffs failure to prosecute and to make discovery. In the instant case the defendant defended on the grounds that the dismissal of the prior suit was res judicata. Where, as here, it appears that a prior dismissal of the case was involuntary under CPA Section 41(b) (Code Ann. 81A-141 (b)) and the trial court did not specify that the dismissal would not operate as an adjudication on the merits, the dismissed suit acts as res judicata on the subsequent suit. Old South Invest. Co. v. Aetna Ins. Co., 124 Ga. App. 697 (185 SE2d 584).
DEEN, Judge, concurring specially.
Young, Young & Ellerbee, O. Wayne Ellerbee, for appellee.
Edward Parrish, for appellant.
SUBMITTED JANUARY 2, 1973 -- DECIDED APRIL 3, 1973 -- REHEARING DENIED APRIL 20, 1973 -- CERT. APPLIED FOR.
Friday May 22 14:10 EDT


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