¶1concurring. In joining the majority opinion I wish to add that in my judgment the facts relative to the failure of the plaintiff to answer the interrogatories would have authorized a finding by the court of wilfulness. But there was no such finding or determination made.
¶2concurring specially. In O’Kelley v. Alexan*201der, 225 Ga. 32 (165 SE2d 648) the Supreme Court of Georgia had for consideration a situation wherein the plaintiff had dismissed his suit; had re-filed without paying costs of court; and the second action was dismissed for failure to pay the costs; and then plaintiffs re-filed the same action between the same parties a third time, and on motion of defendant the third action was dismissed, apparently under the provisons of Sec. 41 (b) of the Civil Practice Act (Code Ann. § 81A-141 (b); Ga. L. 1966, pp. 609, 653). The Supreme Court holds such dismissal was not a dismissal "on the merits,” despite the language of Code Ann. § 81A-141 (b), to wit: "Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this section, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication upon the merits.” (Emphasis supplied.) It was pointed out that Code § 110-503 was not repealed by the Civil Practice Act and that it must be given effect, its language being as follows: "A former recovery on grounds purely technical, and where the merits were not and could not have been in question, shall not be a bar to a subsequent action brought so as to avoid the objection fatal to the first. For the former judgment to be a bar, the merits of the case shall have been adjudicated.” (Emphasis supplied.) Stated another way, The Supreme Court here says that even though the Civil Practice Act tried to include a great number of adjudications as "adjudications on the merits,” unless the merits were actually adjudicated, the Civil Practice Act was simply "spinning its wheels.”
¶3As an additional reason for specially concurring with the majority opinion, Code § 38-1204 (Ga. L. 1889, p. 87) has not been repealed by the Civil Practice Act, and failure to properly respond to discovery may be penalized thereunder by dismissal of plaintiff’s case; and I am unable to find any authority which holds that dismissal under that statute is an "adjudication on the merits.” To the contrary, see Floyd & Beasley Transfer Co. v. Copeland, 107 Ga. App. 304 (130 *202SE2d 143). There is nothing in the judge’s order which shows whether he was proceeding under Code § 38-1204 or under Code Ann. § 81A-141.