Opinion
67305.
DECIDED JANUARY 4, 1984.
Action for damages. DeKalb State Court. Before Judge Carlisle.
James B. Gurley, for appellants.
George L. Barron, Jr., for appellees.
Appellants filed suit against the appellees in the Superior Court of DeKalb County in May of 1982 to obtain injunctive relief and money damages based on the appellees' alleged misconduct in withholding certain books and records belonging to appellants. Subsequently, in March of 1983, the appellants filed in the State Court of DeKalb County a second suit based on the withholding of the same books and records but seeking money damages only. This appeal is from a grant of summary judgment to the appellees in the state court action based on the pendency of the superior court action. Held:
1. OCGA § 9-2-5 (a) (Code Ann. § 3-601) provides that "[n]o plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter." The trial court was authorized to dismiss the state court action pursuant to this code section, since the issues in that case arose from the same transaction as the issues in the superior court action, viz — an aborted attempt by the parties to merge two insurance firms. "`[I]f [the cause of action] arise out of the same transaction and if the second suit would resolve the same issues as the first pending suit and would therefore be "unnecessary and, consequently oppressive," ' the second suit should be abated by the first. See Schoen v. Home Federal c. Assn., 154 Ga. App. 68, 69 ( 267 S.E.2d 466) (1980)." Williams-East, Inc. v. Weeks, 156 Ga. App. 861, 864 ( 275 S.E.2d 801) (1981); see also Rothstein v. Consuegra, 153 Ga. App. 620 ( 266 S.E.2d 309) (1980). Compare A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 ( 221 S.E.2d 697) (1975).
2. "The proper procedure to raise matters of abatement is not a motion for summary judgment since such a motion contemplates an adjudication on the merits. Rather, such matters should be raised in a pleading or motion pursuant to Code Ann. § 81A-112 (d) [OCGA § 9-11-12 (d)] and heard under the provisions of Code Ann. § 81A-143 (b) [OCGA § 9-11-43 (b)], which contemplates consideration of evidence not appearing on the face of the record. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 ( 208 S.E.2d 459) (1974)." Williams-East, Inc. v. Weeks, supra at 862. Insofar as this court's opinion in McPeake v. Colley, 116 Ga. App. 320 ( 157 S.E.2d 562) (1967), suggests that a motion for summary judgment is the proper method to raise the issue of the pendency of a former action, that decision is expressly overruled. We affirm the judgment of the trial court with direction that said judgment be amended to show that the dismissal is not on the merits of the appellant's claim and is without prejudice. See Kirkpatrick v. Mackey, 162 Ga. App. 876 ( 293 S.E.2d 461) (1982).
Judgment affirmed with direction. McMurray, C. J., Deen, P. J., Quillian, P. J., Shulman, P. J., Birdsong, Carley, Sognier and Pope, JJ., concur.