Opinion
19022.
ARGUED JULY 12, 1955.
DECIDED SEPTEMBER 13, 1955.
Ejectment. Before Judge Rees. Sumter Superior Court. May 12, 1955.
Fort Fort, for plaintiffs in error.
Dykes, Dykes Marshall, T. O. Murshall, contra.
In order for the pendency of a former suit to be the basis of a plea in abatement to a subsequent suit, both suits must be for the same cause of action and between the same parties.
ARGUED JULY 12, 1955 — DECIDED SEPTEMBER 13, 1955.
This case involves a plea in abatement, filed to a suit in ejectment in which it is alleged that an intervention, allowed filed subject to objection, which claims title to the same land, in an equitable proceeding, should abate the ejectment action. The plaintiffs in the former suit are in no wise involved in the ejectment suit, although the defendants in both cases are the same and the intervenors in the equitable suit are the plaintiffs in the ejectment action. The former suit came to this court on an exception to a refusal to grant an interlocutory injunction, and is reported in Wright v. Mayor c. of Americus, 210 Ga. 358 ( 80 S.E.2d 167).
After hearing evidence on the plea in abatement, which was a presentation of the entire pleadings in the equitable suit, the court directed the jury to return a verdict in favor of the plea. A motion for new trial, which was later amended to add several special grounds, was duly filed, heard and denied, and the exception here is to that judgment, the bill of exceptions reciting that the main case was dismissed.
Under Code § 3-601, no suitor may prosecute two actions in the courts at the same time, for the same cause, and against the same party; and if such suits are commenced at different times, the pendency of the former shall be a good defense to the latter. While in this case the first suit was one for equitable relief, the actual prayers of the intervenors therein were for title to the alleged property in dispute to be decreed in them as against the defendants, and the ejectment suit brought by the intervenors involved title to the same land against the same defendants, the subject matter of the intervention and the ejectment suit necessarily being the same. It would thus seem that, these parties being the same and the subject matter being the same, the pendency of the equitable suit would be a good defense to the ejectment suit. But all the parties are not the same, since the plaintiffs in the first suit are in no wise involved in the second, although the intervenors are in actuality the plaintiffs therein. In Bird v. Trapnell, 148 Ga. 301 ( 96 S.E. 417), and Hines v. Moore, 168 Ga. 451 ( 148 S.E. 162), it was ruled that all the parties must be the same in order for the pendency of the first suit to abate the second, and they are not the same in this case. Further, the brief of evidence discloses that the real plaintiffs in the equitable action have dismissed their suit; and, as ruled in Martin v. Jelks, 182 Ga. 648 ( 186 S.E. 732), the intervention being subject to the fate of the main case, it was thus automatically dismissed. Thus it would certainly be a miscarriage of justice to allow the pendency of this suit to abate a later action by the intervenors, since the intervenor takes the case as he finds it and can not control the dismissal of the suit as in this case. See Fountain v. Bryan, 176 Ga. 31, 34 (3) ( 166 S.E. 766). It follows that the court erred in directing the verdict in favor of the plea in abatement and in failing to grant the motion for new trial.
Judgment reversed. All the Justices concur.