Price v. Manley

Ebbrhardt, Judge. Where a second counter affidavit to a dispossessory warrant is filed, it should not be dismissed merely because it is a second affidavit. Bowman v. Quick, 106 Ga. App. 213 (126 SE2d 536). Where the dismissal of the first counter affidavit was for want of prosecution, which is not an [289] adjudication on the merits of the case (Kinney v. Avery & Co., 14 Ga. App. 180 (8), 80 SE 663. See National Bank of Augusta v. Southern Porcelain Mfg. Co., 59 Ga. 157, 165), it did not operate as res judicata of the matter raised. Decided September 21, 1964. Wallace & Wallace, Howard C. Wallace, for plaintiff in error. S. T. Ellis, contra. The cases of Story v. Flournoy, McGehee & Co., 55 Ga. 56, and Green v. White Oak Club, 141 Ga. 646 (81 SE 867) were distinguished in Bowman v. Quick, 106 Ga. App. 213, supra at p. 214. The court erroneously dismissed the second counter affidavit and this judgment must be Reversed. Bell, P. J., and Jordan, J., concur.