GA Code § 9-2-44 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 2 - Actions Generally|Article 3 - Abatement|§ 9-2-44. Effect of Former Recovery; Pendency of Former Action

  A former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement. However, if the first action is so defective that no recovery can possibly be had, the pendency of a former action shall not abate the latter.   Parol evidence shall be admissible to show that a matter apparently covered by the judgment was not passed upon by the court.    (Orig. Code 1863, §§ 2838, 2839, 3407; Code 1868, §§ 2846, 2847, 3426; Code 1873, §§ 2897, 2898, 3476; Code 1882, §§ 2897, 2898, 3476; Civil Code 1895, §§ 3741, 3743, 3476; Civil Code 1910, §§ 4335, 4337, 5678; Code 1933, §§ 3-607, 3-608; Ga. L. 1982, p. 3, § 9.)   Cross references.   - Pendency of former action defense to latter on same cause, § 9-2-5.   Law reviews.   - For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B.J. 24 (1985). For note, "Res Judicata in the Georgia Courts," see 11 Ga. L. Rev. 929 (1977).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Former Recovery   Pendency of Actions   Parol Evidence    RESEARCH REFERENCES   Am. Jur. 2d.   - 1 Am. Jur. 2d, Abatement, Survival, and Revival, § 6 et seq. 29A Am. Jur. 2d, Evidence, §§ 910, 917, 934, 1002.   C.J.S.   - 1 C.J.S., Abatement and Revival, § 21. 32A C.J.S., Evidence, §§ 1132, 1133, 1146.   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.    Judgment against claim based on original form of indebtedness as res judicata as to claim based on new or substituted obligation, 4 A.L.R. 1173.    Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306.    Lis pendens: protection during time allowed for appeal, writ of error, or motion for new trial, 10 A.L.R. 415.    Judgment on claim as bar to action to recover amount of payment which was not litigated in previous action, 13 A.L.R. 1151.    Plea of pendency of former action as affecting right of pleader to avail himself of objections to the former action, 32 A.L.R. 1339.    Judgment in action on commercial paper as affecting party to the paper who was not a party to the suit, 34 A.L.R. 152.    Action or suit as abating mandamus proceeding or vice versa, 37 A.L.R. 1432.    Judgment for rent for particular period as bar to action for rent for subsequent period, 42 A.L.R. 128.    Foreign judgment based upon or which fails to give effect to a judgment previously rendered at the forum or in a third jurisdiction, 44 A.L.R. 457; 53 A.L.R. 1146.    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 death as a bar to an action for the same death in another jurisdiction or under another statute, 53 A.L.R. 1275.    Judgment in action or proceeding involving an installment of an assessment for a public improvement as res judicata as regards other installments of assessments, 74 A.L.R. 880.    Judgment in rem or quasi in rem upon constructive service against nonresident as res judicata as regards personal rights, 89 A.L.R. 1102.    Relation between survivability of cause of action and abatability of pending action, 92 A.L.R. 956.    Judgment as res judicata of usury notwithstanding question as to usury was not raised, 98 A.L.R. 1027.    Decree in suit by judgment creditor to set aside conveyance in fraud of creditors as bar to another suit for same purpose in respect of another conveyance, 108 A.L.R. 699.    Plea of abatement because of pendency of prior action as affected by termination of that action, 118 A.L.R. 1477.    Pleading waiver, estoppel, and res judicata, 120 A.L.R. 8.    Res judicata as regards decisions or awards under workmen's compensation acts, 122 A.L.R. 550.    Judgment in action by third person against insured as res judicata in favor of indemnity or liability insurer which was not a nominal party, 123 A.L.R. 708.    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 of lack of identity of parties, 125 A.L.R. 908.    Judgment in action by or against corporation as res judicata in action by or against stockholder or officer of corporation, 129 A.L.R. 1041.    Doctrine of res judicata in income tax cases, 130 A.L.R. 374; 140 A.L.R. 797.    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, 133 A.L.R. 181; 23 A.L.R.2d 710.    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.    Ruling on creditor's claim in bankruptcy as res judicata in subsequent proceeding by trustee to recover voidable preference or transfer, 134 A.L.R. 1191; 165 A.L.R. 1413.    Judgment as res judicata or conclusive as to party's attorney who was not himself a party, 137 A.L.R. 586.    Decree in suit for separation as res judicata in subsequent suit for divorce or annulment, 138 A.L.R. 346; 90 A.L.R.2d 745.    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 A.L.R. 905.    Judgment as res judicata as to whether insured is "permanently disabled" within contemplation of insurance policy, 142 A.L.R. 1170.    Judgment in partition as res judicata, 144 A.L.R. 9.    Judgment in tax cases in respect of one period as res judicata in respect of another period, 150 A.L.R. 5; 162 A.L.R. 1204.    Privity between cotenants for purposes of doctrine of res judicata, 169 A.L.R. 179.   Judgment in suit for cancellation of restrictive covenant on ground of change in neighborhood as res judicata in suit for injunction against enforcement of covenant on that ground, and vice versa, 10 A.L.R.2d 357.   Extent to which principles of res judicata are applicable to judgments in actions for declaratory relief, 10 A.L.R.2d 782.   Judgment avoiding indemnity or liability policy for fraud as barring recovery from insurer by or on behalf of third person, 18 A.L.R.2d 891.   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.   Pendency of prior action for absolute or limited divorce between same spouses in same jurisdiction as precluding subsequent action of like nature, 31 A.L.R.2d 442.   Divorce decree as res judicata in independent action involving property settlement agreement, 32 A.L.R.2d 1145.   Acquittal on homicide charge as bar to subsequent prosecution for assault and battery, or vice versa, 37 A.L.R.2d 1068.   Abatement on ground of prior pending action in same jurisdiction as affected by loss by plaintiff in second action of advantage gained therein by attachment, garnishment, or like process, 40 A.L.R.2d 1111.   Applicability of res judicata to decrees or judgments in adoption proceedings, 52 A.L.R.2d 406.   Dismissal of civil action for want of prosecution as res judicata, 54 A.L.R.2d 473.   Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.   Judgment determining question of coverage of automobile liability policy as between insurer and one claiming to be insured as res judicata in subsequent action by injured person against insurer, 69 A.L.R.2d 858.   Judgment in action by or against stockholder or corporate officer as res judicata in action by or against corporation, 81 A.L.R.2d 1323.   Res judicata as affected by limitation of jurisdiction of court which rendered judgment, 83 A.L.R.2d 977.   Raising res judicata by motion for summary judgment under Federal Rule 56 and similar state statutes or rules, 95 A.L.R.2d 648.   Conviction or acquittal in previous criminal case as bar to revocation or suspension of driver's license on same factual charges, 96 A.L.R.2d 612.   Circumstances under which court may abate a prior action and permit parties to proceed in subsequent action, 6 A.L.R.3d 468.   Modern status of doctrine of res judicata in criminal cases, 9 A.L.R.3d 203.   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 A.L.R.3d 933.   Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400.   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.   Decree allowing or denying specific performance of contract as precluding, as a matter of res judicata, subsequent action for money damages for breach, 38 A.L.R.3d 323.   Judgment against parents in action for loss of minor's services as precluding minor's action for personal injuries, 41 A.L.R.3d 536.   When does jeopardy attach in a nonjury trial?, 49 A.L.R.3d 1039.   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.