Trice v. Howard , 234 Ga. 189 ( 1975 )

Gunter, Justice,

dissenting.

In the original case filed by Trice against Howard in Lamar Superior Court in 1972, the prayers of the complaint were that Trice have judgment against Howard in the sum of $5,000 as compensation for damages suffered and that Howard be temporarily and permanently enjoined from cutting trees on the land in dispute. The responsive pleadings filed by Howard in that action prayed that the prayers of the plaintiffs complaint be denied, that the temporary restraining order be dissolved, and that Howard have such other and further relief as to the court may seem equitable and just.

The judgment entered in that case on June 12,1973, was: "For want of prosecution, judgment is hereby awarded in favor of the defendant and against the plaintiff. The prayers of the complaint are denied and judgment is hereby awarded against plaintiff for cost of this action.”

It is clear to me that the judgment rendered in this case, for want of prosecution by Trice, adjudicated only that Trice was not entitled to money damages or to an injunction to prevent the further cutting of trees on the disputed property. The judgment entered, in my view, did not adjudicate ownership, that Howard had a superior title to the subject property to Trice.

Therefore, when Howard filed the present action against Trice in 1974 for damages and to enjoin Trice from trespassing upon the disputed property, I do not think that the former 1973 judgment could be relied on by Howard on the basis of res judicata or collateral estoppel.

I would simply hold that the issues adjudicated by the 1973 judgment, entered for the failure of Trice to prosecute his action, did not finally adjudicate the issues raised in the 1974 action brought by Howard against Trice.

The court has today, in my opinion, compounded the error of Cranford v. Carver. See my dissenting opinion in 228 Ga. 847. Even assuming that Cranford was right, it is wrong to extend the effect of a dismissal for want of prosecution beyond res judicata. "Even though the dismissal is with prejudice, if no facts have been adjudicated, as when the dismissal is for want of prosecution, the judgment, though a bar to a second suit on the same claim, does not establish any facts to which the doctrine of collateral estoppel can be applied in later litigation on a different claim.” 9 Wright & Miller, Federal Practice and Procedure: Civil, p. 231, § 2373, (1971).

I respectfully dissent.

I am authorized to state that Justice Ingram joins in this dissent.