Chance v. Planters Rural Tel. Co-op., Inc., 21951

Decision Date09 May 1963
Docket NumberNo. 21951,21951
Citation131 S.E.2d 541,219 Ga. 1
PartiesKermit J. CHANCE v. PLANTERS RURAL TELEPHONE COOPERATIVE, INC.
CourtGeorgia Supreme Court

Syllabus by the Court

Where the defendant corporation improperly raises the issue of lack of service in a suit against it, while at the same time appearing and obtaining a favorable ruling on its demurrer as to venue jurisdiction, objections pertaining to service are waived. If after such waiver the plaintiff dismisses his action in one county and within six months from the dismissal institutes suit against the defendant on the same cause of action in the proper county, the provisions of Code § 3-808 will apply, and the latter action will not be barred by the statute of limitation.

On May 5, 1960, Kermit J. Chance sued the Planters Rural Telephone Cooperative, Inc., in the amount of $5000 for services rendered by Chance to the corporation. The action was brought in the City Court of Millen and the return of service recited: 'To the defendant upon whom this petition is served: This copy of petition and process was served upon you by leaving a copy at the office of Planters Electric Membership Corporation, the office in which the Planters Rural Telephone Cooperative, Inc., had their office in 1956. This the 6th day of May, 1960.'

To the petition the defendant corporation filed its plea to the jurisdiction, alleging that the defendant did not reside in Jenkins County but was a resident of Screven County, and its demurrers, both general and special. The applicable portions of the general demurrers are as follows: that the petition shows on its face the defendant was not a resident of Jenkins County; that the petition did not allege the defendant resided in Jenkins County; that no cause of action was set out; finally, 'that said petition shows on its face that it was not served on an officer or agent of the corporation or its place of business or upon any person upon whom service was authorized or in a manner upon which service may be made upon a corporation and in particular upon said defendant.'

Afterwards, according to an affidavit included in the record, counsel for the plaintiff wrote opposing counsel a letter stating: 'I am of the opinion that Jenkins County cannot be made the venue of the suit, so I am conceeding as to your demurrer as to jurisdiction, and am herewith authorizing you to prepare an order for Judge Strickland to sign and dismiss the case for want of jurisdiction in Jenkins County.' Pursuant to this letter, the following order issued: 'The general demurrer filed by the defendant, Planters Rural Telephone Cooperative, Inc., in said case coming on to be heard, and it appearing to the court that the City Court of Millen is without jurisdiction to hear and determine said cause, it is considered, ordered, and adjudged that said cause be stricken and dismissed from the docket on the ground of jurisdiction only.'

Subsequently, the plaintiff filed suit against the defendant corporation in Screven County on February 28, 1961. Among the allegations of the petition was paragraph 9 which set out that the plaintiff had filed a prior suit in the City Court of Millen, against the same defendant, on the same cause of action, for the same sum of money due, and that the case 'was dismissed by the judge of said court solely on the ground of jurisdiction--that is, that the said Planters Rural Telephone Cooperative, Inc., was not a resident of Jenkins County, Georgia.'

The defendant filed its demurrers, which were overruled by the trial court and affirmed by the Court of Appeals in Planters Rural Telephone Cooperative v. Chance, 105 Ga.App. 270, 124 S.E.2d 300, and its answer which admitted the above quoted paragraph 9. Later, on September 8, 1961, a special plea of the statute of limitation was filed. The plea pointed out: that the action was predicated upon a resolution passed by the board of the defendant corporation on August 17, 1956, to the effect that the plaintiff receive compensation for certain services; that the suit filed on February 28, 1961, was more than four years thereafter and would be barred by the statute of limitation; that the first action brought on May 5, 1960, was dismissed by the sustaining of a general demurrer solely on jurisdictional grounds; that the return of service in such suit shows that there was no service at all and that no service was ever perfected upon the defendant; that as a result plaintiff could not recommence his action under Code § 3-808 so as to toll the running of the statute of limitation.

The trial judge denied the defendant's motion for summary judgment, granted the plaintiff's motion for summary judgment, and overruled the defendant's special plea of the statute of limitations. On writ of error brought by the defendant, the Court of Appeals reversed the judgment of the trial court, Planters Rural Telephone Cooperative v. Chance, 107 Ga.App. 116, 129 S.E.2d 384, holding that the mere filing of a suit where the return shows there is no proper service does not act to toll the statute of limitation and that the trial judge erred in overruling the defendant's special plea of the statute of limitation. We granted the plaintiff's application for certiorari to review the questions presented.

Harold W. Hollingsworth, Sylvania, for plaintiff in error.

W. C. Hawkins, Sylvania, for defendant in error.

QUILLIAN, Justice.

Code § 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 * * *.' Since this is a remedial statute and to be construed liberally, Cox v. Berry, 13 Ga. 306; Rountree v. Key, 71 Ga. 214, this court has held that where venue is improperly laid in the first suit the code section does not require that the suit shall be renewed in the same court or in the same county, for the section is but a codification of the act of 1847 which allowed the plaintiff to renew in any court having jurisdiction thereof in this state. Cox v. Strickland, 120 Ga. 104, 108(4), 47 S.E. 912; Lamb v. Howard, 150 Ga. 12, 102 S.E. 436. 'Where the plaintiff begins an action in a court of this state having jurisdiction of the subject-matter, and, after the bar of the statute has attached, the same is dismissed because of a ruling indicating that the court has no jurisdiction of the person, such action may be renewed within six months in another court of this state having jurisdiction of the person and the subjectmatter.' Atlanta, K. & N. Ry. Co. v. Wilson, 119 Ga. 781(5), 47 S.E. 366. Further, the fact that one is involuntarily dismissed rather than voluntarily dismissing his suit is of no consequence so long as the grounds for dismissal do not go to the merits of the case. As was held in Clark v. Newsome, 180 Ga. 97, 178 S.E. 386: 'The law as contained in this section (now Code § 3-808) must be construed in conformity with the specific legislative enactments from which it was taken; and when thus interpreted it applies to involuntary as well as voluntary dismissal, where the merits are...

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    ...points. See Murray Chevrolet Co., Inc. v. Godwin, 129 Ga.App. 153, 156, 199 S.E.2d 117. Compare Chance v. Planters Rural Telephone Cooperative, Inc.,219 Ga. 1, 4, 131 S.E.2d 541, 544 ('the mere filing of the petition will not of itself operate to toll the statute of limitation. For, service......
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    ...operate to toll the statute of limitation. For, service is also a vital ingredient. (Citations).' Chance v. Planters Rural Telephone Cooperative, 219 Ga. 1, 4, 131 S.E.2d 541, 544. 3. While the bar of the statute of limitation is a personal defense, and as a general rule can be interposed o......
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    ...of the pleadings and not mere nomenclature. Girtman v. Girtman, 191 Ga. 173, 180(4), 11 S.E.2d 782; Chance v. Planters Rural Tel. Cooperative, 219 Ga. 1, 5, 131 S.E.2d 541, and cits. Issues of negligence, simple or gross, or wilful and wanton conduct, all lie peculiarly within the province ......
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    ...S.E. 901. And see Planters Rural Telephone Co-operative v. Chance, 107 Ga.App. 116, 129 S.E.2d 384, reversed on other grounds in 219 Ga. 1, 131 S.E.2d 541. See also Bennett v. Taylor, 36 Ga.App. 752, 138 S.E. 273; Bell v. Stevens, 100 Ga.App. 281, 111 S.E.2d The evidence here demanded a fin......
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1 books & journal articles
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