Opinion
42999.
ARGUED SEPTEMBER 5, 1967.
DECIDED SEPTEMBER 15, 1967.
Action on employment contract. Fulton Superior Court. Before Judge Pye.
Shoob, McLain Jessee, C. James Jessee, Jr., R. Keegan Federal, Jr., for appellant.
Nall, Miller, Cadenhead Dennis, Robert E. Corry, Jr., Kirk P. McAlpin, for appellees.
1. A motion for summary judgment will lie on the ground of the pendency of a former action where the motion is directed to a second action brought by the same party against the same party and involving the same cause of action as in the former suit. As to the common defendant it may wholly terminate the second action.
2. Merely adding in the second action a charge of conspiracy on the part of other named defendants to procure a breach of a contract between plaintiff and defendant, will not avoid the applicability of the rule when invoked by the common defendant in the two actions. As to these parties the cause of action in each of the suits is the same.
3. There is no merit in the contention that the order sustaining the motion for summary judgment had the effect of dismissing the second action entirely, as to all defendants; it expressly provides otherwise.
ARGUED SEPTEMBER 5, 1967 — DECIDED SEPTEMBER 15, 1967.
Muriel McPeake brought suit in the Civil Court of Fulton County against Van Buren Colley seeking damages for the alleged breach of an oral employment contract which she contends was to extend for a period of one year, and alleged that her loss amounted to $8,500.
Thereafter she brought another suit in Fulton Superior Court against Van Buren Colley, William H. Campbell, William Phillips, James A. Taylor and J. C. Penney Company, alleging the breach of the same employment contract, the same loss of $8,500, but further alleging that Campbell, Phillips and Taylor, all employees and agents of J. C. Penney Company, in whose place of business she had been employed by Colley to operate his photographic business, had conspired to prevail upon Colley to terminate her employment contract and that Colley "had joined with them in their combination and conspiracy to effect the breach of the contract." She sought recovery of $8,500 for breach of the contract and, additionally, sought punitive damages of $50,000.
Colley moved for summary judgment in the second action insofar as he was concerned, alleging that there was a former suit pending between the plaintiff and himself, and that plaintiff had made her election by bringing it.
The court sustained the motion, entering an order reciting: "From the evidence on the hearing of the Motion for Summary Judgment it appears undisputed that the suit in the Civil Court as to Colley and the instant suit relate, as this court construes them, to the same subject matter, and that the Civil Court suit was pending when the instant case was filed. This is contrary to Code § 3-601, and requires that the instant case be dismissed as to Colley, and this is true irrespective of the present status of the Civil Court case (laying aside questions of estoppel by judgment and res judicata). Compare Singer v. Scott, 44 Ga. 659. See, Jones v. Rich's, Inc., 81 Ga. App. 841 ( 60 S.E.2d 402).
"Under these circumstances it is unnecessary to determine other questions, including those of election of remedies and accord and satisfaction.
"Wherefore, it is considered, ordered and adjudged that said case in this court be and the same is hereby dismissed and said plea of former suit pending is sustained to the extent herein indicated, and summary judgment rendered in said defendant's favor thereon to such extent." (Emphasis supplied).
On the same day a further order was entered directing that the case remain on the non-jury list until there should be a final determination of the Civil Court case, after which further proceedings should be had.
Plaintiff appeals, enumerating as error: (1) that the ground of the motion for summary judgment alleging a former suit pending amounted to a plea in abatement, which it is urged is not available in a summary judgment proceeding, (2) that the two actions involve different parties, different causes of action, different issues and will be tried on different evidence, and (3) that the order sustaining the motion for summary judgment amounts to a dismissal as to all parties.
1. Although appellant cites several federal cases holding that a plea in abatement is not a proper subject matter for summary judgment (Heyward v. Public Housing Administration, 238 F.2d 689; Zeigler v. Akin, 261 F.2d 88; Dredge Corp. v. Penny, 338 F.2d 456; Danisch v. Guardian Life Ins. Co. of America, 151 F. Supp. 17; and 6 Moore's Federal Practice (2d Ed.) Par. 56.03, p. 2052), it appears that the defense of former suit pending, as we have it, is not recognized in the federal courts, or in the Federal Rules of Civil Procedure. For this reason we do not regard the federal cases as persuasive. Under our procedure the plea is more than one in abatement in the ordinary sense. As to Colley the second suit can never be tried, for Code § 3-601 provides that if the two suits are not simultaneously filed the pendency of the first "shall be a good defense to the latter." The effect of the plea or defense cannot be avoided even by a dismissal of the first suit. Singer v. Scott, 44 Ga. 659, supra. The result is, therefore, that, as to Colley, plaintiff could not proceed with the instant case at all. It is thus really a matter in bar. She might dismiss both suits and file another in terms of the second. She may, of course, proceed with the first suit, but the plea or motion does not go to that.
2. We agree with the trial judge that as to Colley the two suits relate to the same subject matter, and as to him they are between the same parties.
3. A reading of the two orders entered by the trial judge forecloses any contention that the second or instant action was dismissed as to any defendant other than Colley.
We find no error in the action of the trial judge.
Judgment affirmed. Felton, C. J., and Hall, J., concur.