O.C.G.A. § 51-11-5 (2019)

Annotations

JUDICIAL DECISIONS Law enunciated at former Code 1933, § 110-501 (see now O.C.G.A. §§ 9-2-44 and 9-12-40), relative to res judicata effect of former judgments, applied to torts. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952). Causes of action in two suits must be identical in order for doctrine of res judicata to bar second action. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967). Res judicata and estoppel by judgment can only be set up in subsequent suit between same parties or their privies. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952). Before a judgment in a former action could operate as a bar to a subsequent action involving the same subject matter, it must appear that the former action was between the same parties, or their privies. Since the plaintiff ’s wife, who was still in life, was a party to the former action, but was not a party to the present one, and the plaintiff was not a party to the former action, they were not privies, within the meaning of former Code 1933, § 110-501 (see now O.C.G.A. § 9-12-40), and the judgment in the former action was not a bar. Russ Transp., Inc. v. Jones, 104 Ga. App. 612, 122 S.E.2d 282 (1961). A judgment sustaining a general demurrer (now motion to dismiss) to a petition brought to recover damages caused by the alleged negligence of the defendant will bar a second suit by the same plaintiff against the same defendant for the same alleged cause of action, though the grounds of negligence upon which the sec-

ond petition is based may be different from those embraced in the first. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952). In order for the doctrine of collateral estoppel to be applied, the parties to the two suits must be identical or ‘‘privity’’ must exist with a former party so as to provide for mutuality of application of the former suit. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967). In order for relitigation of particular question to be estopped by former judgment, question must have been ‘‘necessary’’ to former judgment and it must have been one of the ‘‘ultimate’’ questions or facts in issue, as opposed to a supporting evidentiary or ‘‘mediate’’ question. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967). Dismissal on motion may amount to res judicata. - If a petition is dismissed on general demurrer (now motion to dismiss) which extends to the merits of the case by charging that the petition fails to allege a cause of action, the judgment of dismissal, unexcepted to, will be conclusive between the parties in a subsequent suit based on the same cause of action. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952). Question of res judicata must be raised by plea to that effect and cannot be raised by demurrer (now motion to dismiss) when the facts do not appear in the petition. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952). Cited in Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975).

RESEARCH REFERENCES Am. Jur. 2d. - 74 Am. Jur. 2d, Torts, § 49 et seq. ALR. - Judgment on claim as bar to action to recover amount of payment which was not litigated in previous action, 13 ALR 1151. Judgment against or settlement by person responsible for a personal injury as affecting his liability on account of improper medical or surgical treatment of injured person, 29 ALR 1313.

Judgment for or against master in action for servant’s tort as bar to action against servant, 31 ALR 194. Conclusiveness, as to negligence or contributory negligence, of judgment in death action, in subsequent action between defendant in the death action and statutory beneficiary of that action, as affected by objection by lack of identity of parties, 125 ALR 908. Application of rule against splitting

cause of action, or of doctrine of res judicata, to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 142 ALR 905. Judgment in action growing out of accident as res judicata, as to negligence or contributory negligence, in later action growing out of same accident by or against one not a party to earlier action, 23 ALR2d 710. Admissibility of evidence of unperformed compromise agreement, 26 ALR2d 858. Liability insurer’s settlement of claim against insured as bar to insured’s tort action against person receiving settlement, 32 ALR2d 937. Right to jury trial on issue of validity of release, 43 ALR2d 786. Appealability of order vacating, or refusing to vacate, approval of settlement of infant’s tort claim, 77 ALR2d 801.

Judgment in spouse’s action for personal injuries as binding, as regards loss of consortium and similar resulting damage, upon other spouse not a party to the action, 12 ALR3d 933. Judgment in action against seller or supplier of product as res judicata in action against manufacturer for injury from defective product, or vice versa, 34 ALR3d 518. Judgment against parents in action for loss of minor’s services as precluding minor’s action for personal injuries, 41 ALR3d 536. Validity and effect of ‘‘Mary Carter’’ or similar agreement setting maximum liability of one cotortfeasor and providing for reduction or extinguishment thereof relative to recovery against nonagreeing cotortfeasor, 22 ALR5th 483.