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PAUL v. BENNETT.
33383.
HILL, Justice.
Complaint for injunction, etc. Ware Superior Court. Before Judge Hodges.
This is a landline case although that is not the issue. The issue is whether the trial court erred in finding that plaintiff's second complaint was barred by the dismissal with prejudice for lack of prosecution of plaintiff's first complaint against the same defendant.
Plaintiff urges that the first case was in fact dismissed voluntarily by plaintiff under Code Ann. 81A-141 (a). There is no written notice of dismissal as would be required by that provision. Plaintiff urges that the first case was dismissed pursuant to local rule as recited in the order of dismissal and was not dismissed for want of prosecution pursuant to Code Ann. 24-3341. There was evidence from which the trial court was authorized to find that the first case was dismissed pursuant to this Code section.
The trial court therefore was authorized to find that the dismissal of the first complaint for want of prosecution was authorized by Code Ann. 24-3341, that such dismissal operated as an adjudication upon the merits under Code Ann. 81A-141 (b), and that such an adjudication barred the second suit under the rule of res judicata. Zaun v. Nobles, 128 Ga. App. 846 (198 SE2d 326) (1973); cert. dismissed as improvidently granted, 231 Ga. 491 (202 SE2d 447); Krasner v. Verner Auto Supply, Inc., 130 Ga. App. 892 (204 SE2d 770) (1974). See Code Ann. 110-501, 110-503. It was not error to overrule the motion to set aside the judgment in the first case. See Gulf Oil Corp. v. Pentecost, 133 Ga. App. 651 (211 SE2d 908) (1975).
Gibson, McGee & Blount, Clarence D. Blount, Leon A. Wilson, II, for appellee.
Kopp, Peavy & Conner, John G. Kopp, for appellant.
SUBMITTED MARCH 10, 1978 -- DECIDED APRIL 4, 1978.
Friday May 22 04:47 EDT


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