dissenting.
Lawson appeals from the trial court’s denial of his motion to dismiss an action brought by Watkins concerning ownership of a piece of property. In a prior action, Watkins had sued Lawson to recover money allegedly borrowed by Lawson. Lawson’s counterclaim, relating to reformation of a promissory note, sought to have the holder of the note enjoined from foreclosing on that same property, titled in Lawson’s name.
1. (a) The issue is whether the matter of ownership properly might have been joined in the prior action. OCGA § 9-11-18 (a) provides:
A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.1
(b) The ownership claim could have been included in the prior action, as it was a “claim . . . against an opposing party.”
2. (a) The next issue is the trial court’s ruling in the prior action that declined to consider the issue of ownership. Watkins had sought to raise the issue of ownership for the first time on the very eve of *151trial. The trial court refused to address the issue because it was not contained within the pleadings.2
(b) The trial court’s holding in the prior action was correct, as it was consistent with the terms of OCGA § 9-11-8 (a) (2) (A), as follows:
[A]ny pleading which sets forth a claim for relief . . . shall contain ... [a] short and plain statement of the claims showing that the pleader is entitled to relief.
See also Murphy v. American Civil Liberties Union of Ga., 258 Ga. 637 (373 SE2d 364) (1988).
3. (a) The final issue is whether the failure, in the prior action, to “put in issue” the property claim should bar against the present proceeding by virtue of the provisions of OCGA § 9-12-40. That Code section provides:
A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.
(b) The issue between Lawson and Watkins as to the ownership of the property was a dispute that, by timely and proper pleadings, “under the rules of law might have been put in issue in the cause wherein the judgment was rendered.” Accordingly, the present claim should be barred by OCGA § 9-12-40.3
*1524. (a) The majority at Division 2, characterizes OCGA § 9-12-40, as follows:
The language used in the statute was drawn from Watkins v. Lawton, 69 Ga. 671 (1882), where this court held:
A judgment is conclusive as to all matters put in issue, or which, under the rules of law, might have been put in issue, in a former suit between the same parties concerning the same subject-matter in a court of competent jurisdiction. [Emphasis supplied.]
Thus, one must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata pursuant to OCGA § 9-12-40.
(b) But the legislature did not incorporate the holding of Watkins, supra, into statute. The statute does not include the critical qualification of Watkins: “concerning the same subject matter.”
The Code of Georgia of 1895 provided:
§ 3742. Judgment conclusive of what. A judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered.4
From 1895 until this day, this statute has been re-enacted, without reference to any language limiting its application to “the same subject matter.”
5. In any event, the claim for relief in the present case is, in fact, one that “concerns the same subject matter.” The present claim involves the contractual relationships (between the same parties) pertaining to the same property that were at issue, by way of counterclaim, in the prior action.
I am authorized to state that Chief Justice Clarke and Justice *153Hunt join in this dissent.
Decided March 15, 1991 — Reconsideration denied March 28, 1991. Brown, Katz, Flatau & Hasty, S. Phillip Brown, for appellant. Walker, Hulbert, Gray & Byrd, Lawrence C. Walker, Jr., Charles W. Byrd, Roosevelt Warren, for appellee.Note the difference in the rules provided for compulsory and permissive counterclaims (OCGA § 9-11-13) and the rule for permissive joinder of claims.
The trial court stated:
All right. Well, let me state for the record, of course, that I understand [Watkins’ attorney’s] position but that with regard to the title to the land, that it is not, in fact, raised by the pleadings nor by the counterclaim, and the Court has taken the position that it has for that reason and because it appears to the Court that rather than it’s not in essence a separation of the issues or bifurcating the trial with regard to the issues raised, it is simply a matter of the fact that the issue of the title to the land has not been raised, and even though the plaintiff, Mr. Watkins, would seek to dispose of that issue at the trial today, the Court has stated, and it would be my position, that without the agreement of counsel for the defendant to dispose of that issue that it would not be fair and proper for the Court to require that to be dealt with when it has not, in fact, at this point been raised. And so, [Watkins’ attorney], noting your objection, I wanted to put that on the record as such.
See Monroe v. Lubonivic, 174 Ga. App. 191 (329 SE2d 583) (1985) (claims barred because they could have been raised in earlier action had Monroe attempted to amend pleadings before eve of trial); Walker v. Kroger Co., 181 Ga. App. 745 (353 SE2d 551) (1987) (claims barred because they were identical to proposed amended complaint denied in another court as being filed too late); Kauka Farms v. Scott, 256 Ga. 642 (352 SE2d 373) (1987) (claim for contractual attorney fees barred because could have been raised in suit on note and security deed even though amount of note was not fixed until judgment); and Crawford *152v. Baker, 86 Ga. App. 855, 860 (72 SE2d 790) (1952). (“A litigant is not permitted to divide his case up into pieces and proceed in separate actions for separate relief growing out of the same transaction.”)
This statute was codified within an article concerning “pendency of another action and former recovery”; a different statute appeared in an article concerning the “effect and lien of judgments.” In the Code of Georgia of 1933 this statute was codified in its present form (that is, with the addition of the phrase “until such judgment shall be reversed or set aside”) and was titled “Conclusiveness of judgments.” In OCGA § 9-12-40, it is titled “Judgment conclusive between which persons and on what issues.”