Effect of stare decisis.

- Stare decisis, unlike res judicata or collateral estoppel, does not involve claim preclusion or issue preclusion; it does not work as a bar but only dictates the conclusion of law which will be made upon a given set of facts. Norris v. Atlanta & W.P.R.R., 254 Ga. 684, 333 S.E.2d 835 (1985).

Only judgment on merits conclusive.

- Under rules of res judicata and estoppel by judgment, in order for a former decision to be conclusive, it must have been based, not on purely technical grounds, but at least in part on the merits when under the pleadings they were or could have been involved. Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833 (1938); Hughes v. Cobb, 195 Ga. 213, 23 S.E.2d 701 (1942); Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946); King Sales Co. v. McKey, 105 Ga. App. 787, 125 S.E.2d 684 (1962).

Under both the doctrine of estoppel by judgment and the doctrine of res judicata, in order for the former decision to be conclusive, it must have been based, not merely on purely technical grounds, but at least in part on the merits when under the pleadings they were or could have been involved. Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981).

Identity of cause of action.

- Tenant's claim against landlord for wrongful eviction and related claims were not barred by res judicata for tenant's failure to raise them in the dispossessory action filed by the landlord, because the claims were based on a different set of facts from those relevant to the dispossessory action, so that there was no identity of cause of action between the two cases. Stringer v. Bugg, 254 Ga. App. 745, 563 S.E.2d 447 (2002).

Reason judgment on merits constitutes bar.

- Judgment upon the merits amounts to a declaration of the law as to rights and duties of parties, based upon the ultimate facts and upon which the right of recovery depended, and hence is a bar to an action for the same cause. Wood v. Wood, 86 Ga. App. 32, 70 S.E.2d 545 (1952).

Former trial must have been of adversary nature.

- For the former judgment to be a bar, a bona fide adversary trial must have taken place. Blakely v. Couch, 129 Ga. App. 625, 200 S.E.2d 493 (1973).

When a judgment is rendered in conformance with an agreement to settle, there has not been an adjudication upon the merits, despite the wording of the judgment. Blakely v. Couch, 129 Ga. App. 625, 200 S.E.2d 493 (1973).

Attachment against property of the debtor is not a proceeding involving the merits of the controversy. Hayes v. International Harvester Co. of Am., 52 Ga. App. 328, 183 S.E. 197 (1935).

Judgment sustaining motion to dismiss.

- Judgment sustaining a general demurrer (now motion to dismiss) to a declaration in an action at law may be pled in bar to another suit for the same cause. Dunton v. Mozley, 42 Ga. App. 295, 155 S.E. 794 (1930).

Judgment sustaining a general demurrer (now motion to dismiss) for a petition seeking equitable relief does not necessarily adjudicate the merits of the case, even though facts constituting a valid legal cause of action may be set forth, since the scope of such judgment may be limited in a decision upon the question as to whether the plaintiff was entitled to the particular relief sought. Dunton v. Mozley, 42 Ga. App. 295, 155 S.E. 794 (1930).

Previous decision not rendered on the merits.

- While the judgment of a court upon demurrer (now motion to dismiss) which decides the merits of the cause may be pled in bar of another suit for the same cause, this principle has no application if the previous decision of the court on the demurrer did not pass upon the merits the cause, but reversed the trial court for overruling a demurrer. Bowman v. Bowman, 209 Ga. 200, 71 S.E.2d 84 (1952).

Effect of not basing court's judgment on merits of the case.

- When a general demurrer (now motion to dismiss) that does not go to the merits of the cause of action is sustained, the judgment sustaining the demurrer and dismissing the action will not be res adjudicata in a subsequent action between the same parties on the same cause of action. Buie v. Waters, 209 Ga. 608, 74 S.E.2d 883 (1953); Smith v. Southeastern Courts, Inc., 89 Ga. App. 789, 81 S.E.2d 226 (1954); Dixon v. Dixon, 211 Ga. 122, 84 S.E.2d 37 (1954); Keith v. Darby, 104 Ga. App. 624, 122 S.E.2d 463 (1961); Smith v. Bank of Acworth, 111 Ga. App. 112, 140 S.E.2d 888 (1965); Horton v. Harvey, 221 Ga. 799, 147 S.E.2d 505 (1966).

Application of collateral estoppel by federal bankruptcy court.

- Although, under Georgia law, the collateral estoppel effect of a judgment entered against a debtor is not diminished by the fact that the judgment resulted from a default, the federal bankruptcy court, based on policy considerations, would not apply collateral estoppel to conclude from a state default judgment in a libel and slander case that the defendant's intent in making alleged defamatory statements was willful and malicious so as to render the resulting debt nondischargeable in bankruptcy. Wright v. McIntyre, 57 Bankr. 961 (Bankr. N.D. Ga. 1986).

Although collateral estoppel could be applied to a state court judgment to enable a federal bankruptcy court to reach conclusions about facts that would be considered as evidence of nondischargeability, the present record was not sufficient to permit an accurate and complete determination of the underlying grounds or basis for the state court's ruling as to the defendant's liability. Sims v. Morris, 185 Bankr. 939 (Bankr. N.D. Ga. 1994).

Dismissal for insufficiency of pleading.

- Because the petition to quiet title was dismissed for failure to describe the land, the petitioner was barred by res judicata from instituting a subsequent action for declaratory and injunctive relief based on the same facts; res judicata applies not only when a case is decided on the case's merits, but also when the case could have been so decided, had the case been handled appropriately by the litigants in the original case. Piedmont Cotton Mills, Inc., v. Woelper, 269 Ga. 109, 498 S.E.2d 255 (1998).

In order for the doctrine of res judicata to apply, or for a party to take advantage of the doctrine in a subsequent suit brought against the party after the termination of the first, there are three prerequisites to which the situation must conform. They are: (1) identity of parties; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must concur. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

Use of res judicata to bar actions.

- When the merits of the plaintiff's case have been passed upon by a judgment sustaining general demurrer (now motion to dismiss), and dismissing the complaint, a subsequent action between the same parties, seeking the same relief upon substantially the same grounds, is barred under the doctrine of res judicata. Smith v. Bird, 189 Ga. 105, 5 S.E.2d 336 (1939).

Ruling on motion to dismiss in equitable proceeding.

- If, the ruling on general demurrer (now motion to dismiss), in an equitable proceeding must necessarily have adjudicated the question as to whether or not a cause of action existed, the ruling on such a demurrer becomes res judicata as against a subsequent action at law for damages on the same cause. Dunton v. Mozley, 42 Ga. App. 295, 155 S.E. 794 (1930).

Grant of habeas corpus by prior judgment.

- When a previous writ of habeas corpus in an extradition proceeding was granted because of the insufficiency of the supporting documents or other technical defects which may be subsequently corrected, the prior judgment granting the writ of habeas corpus will not be res judicata in a subsequent extradition demand brought to avoid the technical objections fatal to the first proceeding. Harris v. Massey, 241 Ga. 580, 247 S.E.2d 55 (1978).

Res adjudicata is not available as a bar to a subsequent action if the judgment in the former action was rendered because of a misconception of the remedy available or of the proper form of proceedings. Densmore v. Brown, 83 Ga. App. 366, 64 S.E.2d 78 (1951).

When a judgment in a prior suit is pending appeal, res judicata cannot be sustained in bar of a present suit. Montgomery v. DeKalb Steel, Inc., 144 Ga. App. 191, 240 S.E.2d 741 (1977).

Effect of grant of summary judgment in prior action.

- When an order granting summary judgment in a prior action is relied upon in final support of a plea of res judicata in a subsequent action, if that summary judgment actually was an adjudication of the merits, a plea in bar, or otherwise on the merits, the plea of res judicata should be sustained; however, if examination shows that the summary judgment actually was not an adjudication of the merits, a dilatory plea, etc., the res judicata plea should be denied. National Heritage Corp. v. Mount Olive Mem. Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979).

Effect of lack of privity.

- Although lack of mutuality does not preclude assertion of plea of collateral estoppel, lack of privity does. Montgomery v. DeKalb Steel, Inc., 144 Ga. App. 191, 240 S.E.2d 741 (1977).

Rules of practice and procedure are not technicalities, but, on the contrary, are fundamentally important to the administration of justice by the courts. Tyndale v. Manufacturers Supply Co., 209 Ga. 564, 74 S.E.2d 857 (1953).

Cited in Loveless v. Carten, 64 Ga. App. 54, 12 S.E.2d 175 (1940); Hadden v. Fuqua, 194 Ga. 621, 22 S.E.2d 377 (1942); Crenshaw v. Crenshaw, 198 Ga. 536, 32 S.E.2d 177 (1944); Wills v. Purcell, 198 Ga. 666, 32 S.E.2d 392 (1944); Parker v. Giles, 71 Ga. App. 763, 32 S.E.2d 408 (1944); Woodland Hills Co. v. Coleman, 73 Ga. App. 409, 36 S.E.2d 826 (1946); Conner v. Bowdoin, 80 Ga. App. 807, 57 S.E.2d 344 (1950); Wood v. Wood, 86 Ga. App. 32, 70 S.E.2d 545 (1952); Bowman v. Bowman, 209 Ga. 200, 71 S.E.2d 84 (1952); William v. Richards, 100 Ga. App. 501, 111 S.E.2d 632 (1959); Garland v. State, 101 Ga. App. 395, 114 S.E.2d 176 (1960); Banks v. Sirmans, 218 Ga. 413, 128 S.E.2d 66 (1962); Smith v. Davis, 222 Ga. 839, 152 S.E.2d 870 (1967); Swinney v. Reeves, 224 Ga. 274, 161 S.E.2d 273 (1968); Ezzard v. Morgan, 118 Ga. App. 50, 162 S.E.2d 793 (1968); Miami Properties, Inc. v. Fitts, 226 Ga. 300, 175 S.E.2d 22 (1970); Whitley Constr. Co. v. Whitley, 134 Ga. App. 245, 213 S.E.2d 909 (1975); Lester v. Trust Co., 144 Ga. App. 526, 241 S.E.2d 633 (1978); Paul v. Bennett, 241 Ga. 158, 244 S.E.2d 9 (1978); Madison, Ltd. v. Price, 146 Ga. App. 837, 247 S.E.2d 523 (1978); Ellington v. Lowe, 160 Ga. App. 879, 288 S.E.2d 594 (1982); Norris v. Atlanta & W.P.R.R., 254 Ga. 684, 333 S.E.2d 835 (1985); Wehunt v. Wren's Cross of Atlanta Condominium Ass'n, 175 Ga. App. 70, 332 S.E.2d 368 (1985); Citizens Exch. Bank v. Kirkland, 256 Ga. 71, 344 S.E.2d 409 (1986); State Bar v. Beazley, 256 Ga. 561, 350 S.E.2d 422 (1986); Jones v. Powell, 190 Ga. App. 619, 379 S.E.2d 529 (1989); United States Fid. & Guar. Co. v. State Farm Mut. Auto. Ins. Co., 195 Ga. App. 14, 392 S.E.2d 574 (1990); Marcoux v. Fields, 195 Ga. App. 573, 394 S.E.2d 361 (1990); Arnold v. Brundidge Banking Co., 209 Ga. App. 278, 433 S.E.2d 388 (1993); Akin v. PAFEC Ltd., 991 F.2d 1550 (11th Cir. 1993); Pruett v. Commercial Bank, 211 Ga. App. 692, 440 S.E.2d 85 (1994); Woelper v. Piedmont Cotton Mills, Inc., 226 Ga. App. 337, 487 S.E.2d 5 (1997); Chrison v. H & H Interiors, Inc., 232 Ga. App. 45, 500 S.E.2d 41 (1998).

Dismissal of premature action not adjudication on merits.

- When the judgment of dismissal in the first suit was based upon the ground that the due date of the note had not yet arrived, the judgment did not go to the merits of the action but was merely a dilatory plea, and consequently, that judgment was not an adjudication of the merits of the claim and will not sustain a plea of res judicata in a later action on the note. Crockett v. Shafer, 166 Ga. App. 453, 304 S.E.2d 405 (1983).

Dismissal of former action for technical reasons.

- If the former action was dismissed for defects in the pleadings or for lack of necessary parties or as a result of the plaintiff's misconception of the form of the proceeding or for want of the jurisdiction of the court to try the claim or in fact was disposed of on any ground which did not go to the merits of the action the judgment rendered does not constitute a bar to another suit. O'Kelley v. Alexander, 225 Ga. 32, 165 S.E.2d 648 (1969).

Dismissal based on willful failure to comply with an order can have the effect of an adjudication on the merits. However, a dismissal which does not involve any finding of willfulness but which is merely an automatic action following a certain lapse of time falls within the "purely technical" rule of this section and cannot be considered an adjudication which would bar a subsequent action. Maxey v. Covington, 126 Ga. App. 197, 190 S.E.2d 448 (1972).

Dismissal of a complaint for failure to answer interrogatories operates as an adjudication on the merits under subsection (b) of Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41) absent the trial court's specifying to the contrary. This was consistent with former Code 1933, § 110-503 (see now O.C.G.A. § 9-12-42), for there had been an adjudication on the merits by operation of subsection (b) of Ga. L. 1966, p. 609, § 41. Old S. Inv. Co. v. Aetna Ins. Co., 124 Ga. App. 697, 185 S.E.2d 584 (1971).

Dismissal of action for failure to make necessary parties.

- When plaintiff in error had the plaintiff's bill of exceptions dismissed by the Court of Appeals because the plaintiff had failed to make the necessary parties, the judgment rendered by the lower court became final. A reading of that judgment will disclose that it was based upon the merits of the case and not decided on a technicality. Tyndale v. Manufacturers Supply Co., 209 Ga. 564, 74 S.E.2d 857 (1953).

Dismissal for lack of prosecution.

- When a motion to dismiss an action for want of prosecution is sustained by the court and it appears from the record that the ground upon which this motion was sustained was not a ground which adjudicated the merits of the controversy, such judgment of dismissal will not be a bar to a subsequent proceeding for the same cause of action brought within the time allowed by law. Floyd & Beasley Transf. Co. v. Copeland, 107 Ga. App. 304, 130 S.E.2d 143 (1963).

Dismissal of a complaint for want of prosecution was not an adjudication on the merits; thus, collateral estoppel and res judicata did not bar a subsequent complaint. Valdez v. R. Constr., Inc., 285 Ga. App. 373, 646 S.E.2d 329 (2007).

When dismissal for failure to prosecute res judicata.

- When dismissal for failure to prosecute is involuntary under subsection (b) of O.C.G.A. § 9-11-41 the court does not specify that dismissal is without prejudice, the dismissed action is res judicata as to essentially the same action brought at a later time, and the trial court does not err in granting the defendant's motion to dismiss. Krasner v. Verner Auto Supply, Inc., 130 Ga. App. 892, 204 S.E.2d 770 (1974).

Res judicata and estoppel by judgment distinguished.

- While res judicata applies only as between the same parties and upon the same cause of action to matters which were actually in issue or which under the rules of law could have been put in issue, estoppel by judgment applies as between the same parties upon any cause of action to matters which were directly decided in the former suit. 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 the defense is invoked must be the same. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

Doctrine of estoppel by judgment has reference to previous litigation between the same parties based upon a different cause of action. Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Estoppel by judgment occurs when the issue determined in the prior proceeding is the same as that in the subsequent proceeding. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

There is an estoppel by judgment only as to matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by outside proof to have been actually litigated and determined. Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

Under doctrine of estoppel by judgment validity of earlier judgment cannot be questioned.

- When a party, in temporary alimony proceedings, contends that he is not subject to a judgment therefor because he had made a final alimony settlement with his wife by contract, under the doctrine of estoppel by judgment, he is concluded in a subsequent contempt proceeding from contending that the judgment awarding temporary alimony was void because he was never his wife's lawful husband. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Former alimony judgment based on different cause of action.

- Party is not estopped from questioning the validity of an earlier judgment granting temporary alimony under the doctrine of res judicata since the original judgment, rendered in previous litigation between the same parties, was based upon a different cause of action from a subsequent proceeding for contempt. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Original alimony action different from subsequent property action.

- When a divorce action did not originally pray for alimony or for recovery of other property, that action was based on a different cause of action from the one in the subsequent action, which sought among other things to recover property wrongfully taken from the spouse before the suit for divorce was filed. Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945).

Ruling disallowing claim in bankruptcy for late filing.

- Judgment of a court of bankruptcy disallowing a claim on the ground that the claim was not filed within time is not an adjudication upon the merits of the claim, and when thereafter, the holder of such claim attempts to enforce the claim by levy upon property of the bankrupt, it is error to sustain an affidavit of illegality thereto on the ground that the judgment of the bankruptcy court was an adjudication that the judgment was not a valid lien against the property of the bankrupt. Georgia Sec. Co. v. Arnold, 56 Ga. App. 532, 193 S.E. 366 (1937).

Am. Jur. 2d.

- 47 Am. Jur. 2d, Judgments, §§ 463, 540 et seq.

C.J.S.

- 50 C.J.S., Judgments, § 979 et seq.

ALR.

- Application of doctrine of res judicata to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 2 A.L.R. 534; 142 A.L.R. 905.

Jurisdiction of action by mother or child for support of child born after divorce in another state or country, 32 A.L.R. 659.

Action or suit as abating mandamus proceeding or vice versa, 37 A.L.R. 1432.

Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806.

Judgment in action for services of physician or surgeon as bar to action against him for malpractice, 49 A.L.R. 551.

Delegation to police officer of power to direct street traffic, 60 A.L.R. 504.

Error in excluding recovery for future or permanent damages as affecting the operation of judgment as bar or res judicata in subsequent action to recover future damages, 69 A.L.R. 1004.

Judgment in favor of defendant in action for personal injuries as bar to suit for death caused by such injuries, and vice versa, 99 A.L.R. 1091.

Decree settling account of executor who is also trustee as res judicata in respect of his liability in capacity of trustee, 116 A.L.R. 1290.

Necessity, as condition of effectiveness of express finding on a matter in issue to prevent relitigation of question in later case, that judgment in former action shall have rested thereon, 133 A.L.R. 840.

Judgment as conclusive as against, or in favor of one not a party of record or privy to a party, who prosecuted or defended suit on behalf and in the name of party, or assisted him or participated with him in its prosecution or defense, 139 A.L.R. 9.

Application of rule against splitting cause of action, or of doctrine of res judicata, to item of single cause of action doctrine of res judicata, to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 142 A.L.R. 905.

Provision that judgment is "without prejudice" or "with prejudice" as affecting its operation as res judicata, 149 A.L.R. 553.

Judgment in action for damages to real property situated in another state or county as conclusive in respect of title, 158 A.L.R. 362.

Judgment for defendant based on the statute of limitations as bar to maintenance of action in another state, 164 A.L.R. 693.

Decree granting or refusing injunction as res judicata in action for damages in relation to matter concerning which injunction was asked in first suit, 26 A.L.R.2d 446.

Divorce decree as res judicata in independent action involving property settlement agreement, 32 A.L.R.2d 1145.

Domestic divorce decree without adjudication as to alimony, rendered on personal service or equivalent, as precluding later alimony award, 43 A.L.R.2d 1387.

Dismissal of civil action for want of prosecution as res judicata, 54 A.L.R.2d 473.

Decree in suit for "separation" as res judicata in subsequent suit for divorce or annulment, 90 A.L.R.2d 745.

Res judicata or collateral estoppel effect, in states where real property is located, of foreign decree dealing with such property, 32 A.L.R.3d 1330.

Judgment in action on express contract for labor or services as precluding, as a matter of res judicata, subsequent action on implied contract (quantum meruit) or vice versa, 35 A.L.R.3d 874.

Modern views of state courts as to whether consent judgment is entitled to res judicata or collateral estoppel effect, 91 A.L.R.3d 1170.

Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa, 94 A.L.R.3d 676.