On Motion for Rehearing.
Eberhakdt, Judge.It is urged that Williams v. Appliances, Inc., 91 Ga. App. 608 (86 SE2d 632) requires a different result. We do not think so. The question of res judicata was not before the court for decision in that case. But if it be viewed as a case in which the sustaining of the motion to dismiss might have been res judicata in a subsequent suit between the same parties and involving the same subject matter, it is because the petition and exhibit thereto- revealed that plaintiff sought to recover from individuals for the indebtedness of a corporation-—a clear case of non-liability. Here, in the previous action the plaintiff sought to recover from an individual for an indebtedness incurred in a fictitious or trade name, and the absence of liability did not appear from the petition and exhibit. Thus, in the Williams case the court could adjudicate the merits on a motion to dismiss or general demurrer, while here it could not.
Motion for rehearing denied.
Carlisle, P. J., and Nichols, J., concur.