Opinion
27384.
SUBMITTED SEPTEMBER 11, 1972.
DECIDED JANUARY 5, 1973.
Equitable petition. Dougherty Superior Court. Before Judge Kelley.
Lewis O. Nevels, pro se. Smith, Cohen, Ringel, Kohler, Martin Lowe, Williston C. White, for appellees.
Appellant, the plaintiff in the trial court, brought an equitable action below seeking to vacate a judgment rendered by the trial court in 1968, affirmed by the Court of Appeals in 1969 ( 120 Ga. App. 60), and with respect thereto the writ of certiorari to the Court of Appeals was denied by this Court.
The appellees filed responsive pleadings and contended that the issue finally determined in the earlier action was sought to be relitigated in this action to vacate the former final judgment.
The trial judge agreed with the contention made by the appellees, and he dismissed the appellant's action for failure to state a claim. The appeal here is from the judgment of dismissal.
A reading of the appellant's complaint in this action, and a reading of the decision of the Court of Appeals referred to above in the earlier action shows that the issue litigated there and finally determined is sought to be relitigated in the present case.
That cannot be done. See Cromer v. Cromer, 222 Ga. 365 ( 149 S.E.2d 804) (1966) and Atkins v. Bituminous Casualty Corp., 124 Ga. App. 1 ( 183 S.E.2d 1) (1971).
The trial judge properly sustained the motion to dismiss the complaint for failure to state a claim.
Judgment affirmed. All the Justices concur.