Grant v. Wilkinson

Sognier, Judge. Kathryn Grant sued J. C. Wilkinson, d/b/a J. C. Wilkinson & Son, to recover a $400 down payment made on an automobile which was returned to Wilkinson. The defendant was deceased and the administrator of his estate, James Wilkinson, defended the claim on the basis of a prior suit between the same parties and for the same cause of action pending in Small Claims Court. The trial court granted summary judgment in favor of Wilkinson and Grant appeals. Appellant contends the trial court erred in granting summary judgment based upon the prior suit because there was insufficient evidence to support appellee’s defense. We affirm. At the hearing on the motion for summary judgment, appellee introduced into evidence a certified copy of the complaint filed in Small Claims Court showing Kathryn Grant as plaintiff and J. C. Wilkinson, d/b/a J. C. Wilkinson & Son, as defendant and alleging essentially the same cause of action as that alleged in the instant suit. The former suit was filed on May 23,1980 and marked as $419 paid on May 11, 1982. “Under [OCGA § 9-2-5 (Code Ann. § 3-601)] the pendency of a former action is a good defense to a second action brought by the same plaintiff against the same defendant and involving the same cause of action as in the former suit.” Cherry v. Gilbert, 124 Ga. App. 847, 848 (186 SE2d 319) (1971). A certified copy of the pleading in the former case offered into evidence at the hearing on the motion for summary judgment is sufficient proof of the pendency of the former action. Watts v. Kundtz, 128 Ga. App. 797, 799 (197 SE2d 859) (1973); Rothstein v. Conseugra, 153 Ga. App. 620 (266 SE2d 309) (1980). The motion for summary judgment was correctly granted. McPeake v. Colley, 116 Ga. App. 320 (157 SE2d 562) (1967). Judgment affirmed. Quillian, P. J., and Pope, J., concur.