
    11302.
    Shearer v. Stamey.
    Decided January 20, 1921.
    Rehearing denied February 15, 1921.
    Certiorari; from Fulton superior court — Judge Pendleton. November 29, 1919.
    
      B. G. Buchanan, for plaintiff in error.
    
      Sill & Adams, contra.
   Stephens, J.

1. Where a case has been dismissed upon the defendant’s motion, on a ground not going to the merits of the case, the dismissal will not, in a subsequent suit between the parties, support a plea of res judicata filed by the defendant. This rule is applicable in a “bailtrover ” proceeding where the former suit was dismissed on motion of the defendant upon the ground that the affidavit attached to the petition was defective. Civil Code (1910), § 5679; Papworth v. City of Fitzgerald, 111 Ga. 54 (36 S. E. 311).

2. The judge of the municipal court having properly stricken the defendant’s plea of res judicata, and the judgment rendered for the plaintiff being supported by the evidence, the judge of the superior court did not err in overruling the certiorari.

Judgment affwmed.

Jenkins, P. J., and Hill, J., concur.  