Reynolds v. Reynolds , 153 Ga. 490 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

1. In case of nonsuit, dismissal, or discontinuance, the plaintiff majr recommence his suit on the payment of costs. Civil Code, § 5625. When a suit is nonsuited, dismissed, or discontinued, and the plaintiff desires to recommence his suit, if he will make and file with his petition an affidavit in writing that he is advised and believes that he has a good cause for recommencing his suit, and that owing to his poverty he is unable to pay the costs that have accrued in said case, he shall have the right to renew said suit without the jtayment of costs. Civil Code, § 5626. These provisions do not apply where the second suit is substantially different from the one brought and dismissed. Doody Co. v. Jeffcoat, 127 Ga. 301 (56 S. E. 421). The two suits must be identical as to parties and causes of action, before these sections of the code apply. Moore v. Bower, 6 Ga. App. 450 (3), 453 (65 S. E. 328). The voluntary abandonment of an attachment which had never been levied, and the bringing of an action in personam without the payment of the magistrate’s costs in issuing the attachment, or making affidavit of inability to pay such costs, is no ground for abating the latter suit under these sections. Wright Mercantile &c. Co. v. Eton Mercantile Co., 143 Ga. 192 (84 S. E. 442). These provisions have no application to the commencement of a different suit between the same parties from the one nonsuited, dismissed, or discontinued. Bunting v. Hutchinson, 5 Ga. App. 194 (63 S. E. 49).

Does an equitable petition to annul a marriage on the ground of fraud set out the identical cause of action as that in a libel for divorce on the ground of fraud, the facts constituting the fraud being the same in each proceeding? We do not think so. The learned trial judge, in his opinion .overruling the plea in abatement, well says: “ The suits must be identical as to parties and cause of action. The first suit was for the annulment of marriage, the second for divorce. The two actions are essentially different. The annulment was by a bill in equity; the divorce- suit by statute. One verdict can annul a marriage; but two concurrent verdicts at different terms of the court are required to grant a divorce. A marriage may he annuled even after the death of a party, when property rights are involved; but a divorce can not be granted against a dead party. A decree of annulment is to be regarded as a judgment quasi in rem. Luke v. Hill, 137 Ga. 159 (73 S. E. 345, 38 L. R. A. (N. S.) 559). The adjudication fixes only the status of the parties. A decree in divorce is comprehensive. It not only dissolves marriage ties, but determines the right to remarry, may restore to the woman the name she bore before marriage, allows alimony as an incident of divorce, disposes of the property of the husband, and awards the custody of the children.” This excerpt from the opinion of the trial court states the matter clearly and strongly.

2. But the true question in this case is this: Where a petition for annulment of a marriage sets forth no cause of action, can such “ no-cause of action ” be said to be identical with a valid and good cause of action set forth in a libel for divorce, when the basic facts in each case are identical? The defendant demurred to the equitable petition for the annulment of their marriage, brought by the plaintiff, on the grounds that- the same set forth no cause of action, and because a suit for annulment will not lie on any ground upon which a divorce would be granted. The trial court sustained this demurrer on the latter ground, and dismissed the petition for annulment. The court thus adjudged that, for this reason, the equitable petition for annulment set out no cause for the grant of such relief. In view of this judgment, which she invoked, the defendant is now estopped from asserting that the equitable petition for annulment set forth a cause of action which is identical with the cause of action set out in the jdaintiff’s libel for divorce. A litigant can not blow hot and cold. A party can not assume inconsistent positions before the court. A. party is bound by a rule which he invokes, and by a judgment in his favor which he procures. Butler v. Tifton &c. Ry. Co., 121 Ga. 817 (49 S. E. 763); Neal Loan &c. Co. v. Chastain, 121 Ga. 500 (49 S. E. 618).

The court did not err in overruling the plea in abatement.

Judgment affirmed.

All the Justices concur.