Carmack v. Oglethorpe Co.
| Decision Date | 22 April 1968 |
| Docket Number | Nos. 1,2,No. 43448,3,43448,s. 1 |
| Citation | 117 Ga.App. 664,161 S.E.2d 357 |
| Parties | Mae CARMACK v. The OGLETHORPE COMPANY |
| Court | Georgia Court of Appeals |
E. T. Hendon, Jr., Decatur, for appellant.
Eugene G. Partain, Richard H. Vincent, Jack M. McLaughlin, Decatur, for appellee.
Syllabus Opinion by the Court
1. Where the plaintiff is nonsuited and files a timely appeal from that judgment which is affirmed by the appellate court, he may, within 6 months of the date of affirmance, recommence his action upon complying with the conditions imposed by Code § 3-808. Central of Georgia Ry. Co. v. Macon Ry. and Light Co., 140 Ga. 309(2), 78 S.E. 931. Where, on the other hand, after a judgment of nonsuit the plaintiff attempts an abortive appeal which is dismissed by the appellate court because it does not meet the statutory requirements, such attempt will not toll the statute of limitation, and the new action must be recommenced within six months of the judgment of nonsuit. Southern Bell Tel. & Tel. Co. v. Freeman, 22 Ga.App. 166(2), 95 S.E. 740.
2. Chance v. Planters Rural Tel. Co-op., 219 Ga. 1, 5, 131 S.E.2d 541, 544. Crow v. Mothers Beautiful Co., Inc., 115 Ga.App. 747, 748, 156 S.E.2d 193, 194; Chambliss v. Hall, 113 Ga.App. 96, 97, 147 S.E.2d 334; Smith v. McMichael, 203 Ga. 74(5), 45 S.E.2d 431.
3. Applying the foregoing law to the facts of this case, where it appears that this plaintiff was nonsuited on September 20, 1965, and that an abortive appeal attempted to be taken from that judgment was dismissed for failure to prepare a transcript of evidence (see Oglethorpe Co. v. Carmack, 223 Ga. 128, 153 S.E.2d 541, conformed to in Carmack v. Oglethorpe Co., 115 Ga.App. 368, 154 S.E.2d 743, and that the present action was not brought until March 15, 1967, more than six months after the judgment of nonsuit, and after the statute of limitation had run on the cause of action, this action was filed too late. The trial court sustained a plea denominated a plea in abatement (which as such would be insufficient because not filed within 30 days after the service of the petition) but which was really a plea in bar because it alleged: 'No proper appeal was perfected from the judgment of DeKalb Superior Court, dated September 20, 1965, granting the defendant's motion for nonsuit, and that judgment, therefore, stands as the law of this case and as a final adjudication of the plaintiff's cause of action.' There was also a prayer that the defendant be discharged with costs on the plaintiff. Since it raised the issue that the judgment of nonsuit had become a final determination of the case, it was in bar of the action and was not required to be filed at the first term. Gamble v. Gamble, 204 Ga. 82, 86, 48 S.E.2d 540; Krasner v. O'Dell, 89 Ga.App. 718(3, 4), 80 S.E.2d 852; Loveless v. Carten, 64 Ga.App. 54(1), 12 S.E.2d 175.
The trial court's order sustaining the plea recites that it was entered after hearing evidence. The plaintiff's amended petition and affirmative answers to the defendant's request for admissions establish that there is no controversy as to the facts.
The trial court did not err in overruling the motion to strike the plea and in thereafter sustaining it and dismissing the action.
Judgment affirmed.
I disagree with the majority (a) in construing the plea in abatement to be a plea of res judicata so as to preclude its dismissal because of a late filing; (b) in ruling that the trial judge was correct in sustaining the plea as a plea of res judicata when absolutely no evidence was introduced in support thereof; (c) in ruling that a prior judgment of nonsuit is res judicata as to, and requires a dismissal of, a subsequent suit brought on the same cause of action prior to the introduction of any evidence upon the trial of the case or the introduction of any evidence upon a motion for summary judgment to which the judgment of nonsuit may be applied; and (d) in ruling that the second suit was filed too late and is barred by the statute of limitation when that question was raised only by demurrer to the petition which has not been ruled upon by the trial judge and is not raised on appeal.
In my opinion, the majority of this court has strayed far afield from the record, the pleadings, and the law in this case in an effort to dispose of it by construing as a plea of res judicata a plea in abatement (based upon nonpayment of costs in a prior action dismissed on nonsuit) and in sustaining this supposed plea of res judicata as a sufficient and timely pleading, and as sufficiently proved at a hearing had thereon, and in order to so sustain it, ruling that the second suit was barred by the statute of limitation when this latter question was not before us on the appeal.
There is a plea of res judicata on file in the case and even though a determination favorable to the plea might end this litigation, this court is not a court of original jurisdiction and until that plea is disposed of in the lower court in some manner or by some ruling the trial judge made thereon, we cannot do anything about it here. Nor do I think it proper that we misconstrue another plea in order to reach this question so as to finally dispose of the case as is done by the majority. A history of, and a proper consideration of, the pleadings in the present case, and a consideration of the evidence adduced at the hearing on the merits of the plea involved will disclose the magnitude of the error.
(a) The present action was brought on March 15, 1967, seeking damages for tortious injuries sustained by the plaintiff on June 16, 1962. The defendant, after the time was extended, and on May 15, 1967, filed demurrers, an answer, and a plea of res judicata. The plea of res judicata had attached thereto copies of a previous suit between the same parties based upon the same cause of action showing that a nonsuit was granted, and an appeal to this court therefrom where it was dismissed for failure to perfect the appeal and alleging that this was 'a full and final adjudication of the cause of action sued upon.' This plea of res judicata has never been heard or passed upon in the lower court. The demurrer in the present case raised the question that the petition showed on its face that the present suit was barred by the statute of limitation. The demurrer has not been ruled on. However, in order to meet this demurrer, the petition was amended on May 18, 1967, to show the history of the prior case, and to present the plaintiff's contention that the present case having been re-brought within six months of the dismissal of the appeal of the prior case, was not barred by the statute of limitation. On July 12, 1967, the following plea, denominated a plea in abatement, was filed by the defendant (this is the plea which is the crux of the decision in this case): 'Now comes the defendant in the above styled case, following the amendment to the plaintiff's petition, and files this its plea in abatement and shows to the court as follows:
'1. A judgment was rendered on the 20th day of September, 1965, in the DeKalb Superior Court sustaining the defendant's motion for nonsuit, on the same cause of action and between the same parties as in the above styled cause, said court having jurisdiction of said matter.
'2. A copy of the pleadings and the above mentioned judgment in said case is attached as Exhibit 'A' to the defendant's plea of res judicata, heretofore filed, and it is hereby incorporated by reference as part of this pleading.
'3. An appeal from the judgment referred to in paragraph 1 was taken by the plaintiff, and by order of the
Court of Appeals of Georgia, dated March 10, 1967, the said appeal was dismissed. A copy of said order is
attached as Exhibit 'B' to the defendant's plea of res judicata, heretofore filed, and it is hereby incorporated by reference as part of this pleading.
'Wherefore, the defendant prays that the present suit abate, that it be discharged and that the cost of this action be cast upon the plaintiff.'
The plaintiff made a motion to strike the 'plea in abatement' on the ground that it was not filed within time as required by Code § 81-301 as amended. On September 7, 1967, the trial judge overruled the motion to strike the 'plea in abatement.' A hearing was had on the plea...
To continue reading
Request your trial
-
Gottschalk v. Woods
...on other grounds as stated in Marchman & Sons, Inc. v. Nelson, 251 Ga. 475, 475–477, 306 S.E.2d 290 (1983) ;6 Carmack v. Oglethorpe Co., 117 Ga.App. 664(1), 161 S.E.2d 357 (1968) (under Ga.Code § 3–808, an action may be recommenced “within six months from the date of the affirmance” of the ......
-
Sadi Holdings, LLC v. Lib Properties, Ltd.
...of the plaintiffs' renewal action pursuant to OCGA § 9-2-5(a) and 9-2-44(a) was not error. See id. at 850, 60 S.E.2d 402. Citing Carmack v. Oglethorpe Co.,10 plaintiffs argue that they were authorized to file the renewal action while the appeal of the prior case was still pending in order t......
-
Atkins v. Bituminous Cas. Corp., 45876
...226 Ga. 763, 177 S.E.2d 237; Hardy v. George C. Murdock Freight Lines, 99 Ga.App. 459(4), 108 S.E.2d 739; Carmack v. Oglethorpe Company, 117 Ga.App. 664(2), 161 S.E.2d 357. Estoppel by judgment may arise although the present and former acions were not based upon the same cause of action, if......
-
Hayes v. Superior Leasing Corp., 51069
...Department of Transportation, 128 Ga.App. 221, 196 S.E.2d 171; Jones v. Spindel, 128 Ga.App. 88, 196 S.E.2d 22; Carmack v. Oglethorpe County, 117 Ga.App. 664, 161 S.E.2d 357. 'It matters not by what name any pleading is called, the court will look to the substance rather than to the name. I......