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RITCHIE GAS OF CORNELIA, INC. v. FERGUSON et al.
41134.
Action for damages. Habersham City Court. Before Judge Adams.
EBERHARDT, Judge.
Before a judgment in a former action will operate as res judicata or a bar to a second suit involving the same subject matter, it must appear that the former action was between the same parties, or their privies.
Troy and Lila Ferguson brought suit against Ritchie Gas Company, Inc., et al., seeking to recover damages sustained resulting from a fire caused by a collision between a gas truck and an automobile which occurred near plaintiffs' home, setting the house on fire. The named defendant, Ritchie Gas Company, Inc., filed no pleadings in the case, but Ritchie Gas of Cornelia, Inc., which was not mentioned in nor made a party defendant in the petition or process, filed a general demurrer, and the court, after consideration, entered an order that "the within petition is sustained and said petition is dismissed as to Ritchie Gas of Cornelia, Inc."
Thereafter plaintiffs brought another suit against Ritchie Gas of Cornelia, Inc., et al., seeking recovery of damages for the same event. Ritchie Gas of Cornelia, Inc. filed a plea of res judicata and Ritchie Gas Company, Inc. filed a general demurrer. A motion to strike the demurrer because demurrant was not a party to the action was sustained. Upon a hearing of the plea of res judicata before the judge without a jury (by consent) the petition in the first case, the demurrer thereto and the order sustaining it were introduced in evidence. The plea was overruled and Ritchie Gas of Cornelia, Inc. excepts.
Giving that construction to the order or judgment overruling the plea of res judicata which would support it, the recital that a general demurrer filed by Ritchie Gas Company, Inc. to the second suit was stricken on the ground that the demurrant was not a party to that suit, together with the appearance of Ritchie Gas of Cornelia, Inc. filing the plea in the same action is sufficient to indicate that these were two separate corporations and that the naming of Ritchie Gas Company, Inc. as defendant in the first suit was not a mere misnomer, thus the case of Rhodes v. City of Louisville, 121 Ga. 551 (49 SE 681) has no application. Consequently, the order sustaining the general demurrer of Ritchie Gas of Cornelia, Inc. to the first suit and dismissal of the petition as to it could not have the effect of dismissing the petition as to Ritchie Gas Company, Inc., and as to it the suit is still pending. Nothing in that petition indicates that Ritchie Gas of Cornelia, Inc. was a necessary or proper party; thus there was no defect to cure in that respect as was the case in Mayor &c. of Brunswick v. Finney, 54 Ga. 317, and the filing of a general demurrer in the first suit by Ritchie Gas of Cornelia, Inc. had no better standing than an attempted intervention in a suit at law. See Todd v. Conner, 220 Ga. 173, 179 (137 SE2d 614).
v. Jones, 104 Ga. App. 612 (122 SE2d 282); Sims T. V., Inc. v. Fireman's Fund Ins. Co., 108 Ga. App. 41, 44 (131 SE2d 790); Hill v. Armour Fertilizer Works, 21 Ga. App. 45 (1) (93 SE 511). Nor is the judgment a bar when it is not based upon the merits of the case. Keith v. Darby, 104 Ga. App. 624 (1, 3) (122 SE2d 463); Fain v. Hughes, 108 Ga. 537 (33 SE 1012).
Judgment affirmed. Nichols, P. J., and Pannell, J., concur.
Notes
1  While the phrase "same parties" does not mean that all of the parties on the respective sides of the litigation in the two cases shall have been identical, it does mean that those who invoke the defense and against whom it is invoked must be the same. Darling Stores Corp. v. Beatus, 199 Ga. 215 (33 SE2d 701).
Jack N. Gunter, Telford, Wayne & Greer, Tifton L. Greer, contra.
Baker, McDaniel & Hall, William J. McDaniel, Kimsey & Kimsey, Herbert B. Kimsey, for plaintiff in error.
DECIDED FEBRUARY 11, 1965.
Friday May 22 21:11 EDT


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