Brinson v. Kramer
| Decision Date | 31 January 1945 |
| Docket Number | 30727. |
| Citation | 33 S.E.2d 41,72 Ga.App. 63 |
| Parties | BRINSON v. KRAMER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court properly sustained the special demurrer to the petition, and did not err in then dismissing the action on the defendant's oral motion.
Louis H. Foster, John H. Payne, and A. J. Shirley, all of Cairo for plaintiff in error.
S P. Cain, of Cairo, for defendant in error.
J. L Brinson brought suit in the city court of Cairo against I. Kramer for damages for personal injuries alleged to have been sustained by the plaintiff in September, 1940. The petition, so far as is material to a decision in this case, alleged:
The defendant filed a special demurrer to paragraph 5 of the petition on the ground that it was not alleged when the cost in each of said cases was paid, and, on the date of the hearing of the case, he also made an oral motion to dismiss the petition. Counsel for plaintiff elected to stand on the suit without amending to meet the special demurrer. Whereupon, the court sustained the special demurrer and then sustained the oral motion and dismissed the action. The plaintiff excepted to said ruling and judgment and assigns error thereon.
The Code, § 3-508, provides: 'A nonsuit, dismission, or discontinuance is negative, and the plaintiff may recommence his suit on the payment of costs.' Section 3-808 provides: 'If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this section.' Section 3-808 has reference to the tolling of the statute and applies only where there has been a valid pending suit. Southern Flour & Grain Co. v. Simmons, 49 Ga.App. 517, 176 S.E. 121; McFarland v. McFarland, 151 Ga. 9, 105 S.E. 596. The petition does not allege when the costs in the two previous suits were paid, but it indicates that this was done at the time the present suit was filed. If the costs in the first case were not paid before the second suit was filed, then the second suit was not a valid pending suit, for the payment of the costs (or the filing of a pauper affidavit, Code, § 3-509) is a condition precedent to the right to file and maintain a suit which previously had been dismissed or nonsuited. As a general rule, this question can be raised only by a plea in abatement. White v. Bryant, 136 Ga. 423, 71 S.E. 677; Cicero v. Scaife, 129 Ga. 333, 58 S.E. 850; Johnson v. Central of Georgia R. Co. 119 Ga. 185(4), 45 S.E. 988; Board of Education v. Kelley, 126 Ga. 479, 55 S.E. 238; Richie v. DuBose, 6 Ga.App. 495, 65 S.E. 254; Bland v. Bird, 134 Ga. 74(2), 67 S.E. 427. But where it appears from the petition or a proper construction thereof that the costs in the first suit were not paid before the filing of the second suit which has been dismissed, then the question can be raised by demurrer. See North American Accident Ins. Co. v. Scarborough, 49 Ga.App. 833, 176 S.E. 671.
It was alleged in the petition that the costs in the two previous suits had been paid before filing of this suit. This was challenged by a special demurrer calling on the plaintiff to show when the costs were paid. The plaintiff chose to stand on his petition and declined to amend, though given an opportunity to do so. Under the allegations of the petition it is important when the costs were paid, as it appears from the petition that the statute of limitations had expired when the second suit was dismissed; and necessarily the present suit was barred, unless the statute was tolled by the second suit. In order for this to have occurred, the second suit would have had to be a valid pending suit, which it could not have been, if the costs in the first case were not paid before the second suit was filed. In Sweeney v. Malloy, 107 Ga. 80, 83, 32 S.E. 858, 859, it is said: 'The Code imposes upon him the obligation of paying these costs in full before he can maintain a second action; in other words, he had no right to renew his original suit without first paying all the costs and expenses which had accrued therein.' 'Payment of the costs was an essential condition precedent to the right to maintain the new suit * * *; or in lieu thereof, the required statutory affidavit in forma pauperis was necessary.' North American Accident Ins. Co. v. Scarborough, s...
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