Chapman v. Cent. Of Ga. Ry. Co

• Decision Date: 15 June 1917
• Docket Number: (No. 8147.)
• Citation: 92 S.E. 1025,20 Ga.App. 251
• Parties: CHAPMAN. v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Court of Appeals

(20 Ga.App. 251)

92 S.E. 1025

CHAPMAN.

v.CENTRAL OF GEORGIA RY. CO.

(No. 8147.)

Court of Appeals of Georgia,

Division No. 1.

June 15, 1917.

(Syllabus by the Court.)

Error from Superior Court, Monroe County; W. E. H. Searcy, Jr., Judge.

Suit by Mrs. A. D. Chapman against the Central of Georgia Railway Company. Demurrer to petition sustained, and petition dismissed, and plaintiff brings error. Affirmed.

Persons & Persons, of Forsyth, and R. B. Blackburn, of Atlanta, for plaintiff in error.

Willingham & Willingham, of Forsyth, and Lloyd Cleveland and L. P. Goodrich, both of Griffin, for defendant in error.

LUKE, J. Mrs. A. D. Chapman filed, with the clerk of Monroe superior court on August 26, 1913, a petition, alleging that her husband was negligently killed by the Central of Georgia Railway Company on October 8, 1911. The clerk did not attach process to the petition, and there was no service on the defendant, and on February 4, 1914, at the term of court which would have been the return term o# the suit if there had been due process and service, the court passed the following order:

"It appearing to the court that the clerk of the court failed to attach process to the within petition and caused the same to be served as re-quired by law so that the same would have been returned to this the February term, 1914, it is therefore ordered that the clerk do now attach process to said petition and process be served on the defendant, and that said ease of A. D. Chapman v. Central of Georgia Railway Company do stand returnable to the August term, 1914, of this court."

The petition with process attached, as directed by the order of the court, was served on July 12, 1914. The defendant demurred upon the following grounds that:

"The petition shows on its face that plaintiff's husband, W. L. Evans, received his injuries on the 8th day of October, 1911, and died on the same day. The petition shows on its face that it was filed in office August 26. 1913, but no process was attached to said petition until the 4th day of February, 1914. Defendant shows that said action was not commenced within two years from the time of the death of her husband, and for this reason the suit is barred by the statute of limitations. The order of the judge, dated February 4, 1914, was without authority of law, and did not stop the running of the statute, and the filing of the petition without attaching process was not the commencement of the suit as provided by law, and the petition shows on its face that it was not commenced within the time prescribed by law."

The demurrer was sustained, and the case dismissed; and the plaintiff excepted.

1. Is the mere filing of a petition in the court, without process being attached, the commencement of a suit? Did the court have authority to pass the order in question, and did the passing of that order at the term to which the cause would have been returnable had there been due service of the petition with process attached have the effect of making the day of filing the petition the day of commencement of the suit, so as to bring the suit within the statute of limitations?

All suits in the superior courts must be by petition to the court, signed by the plaintiff or his counsel, setting forth the complaint with prayer for process. Civil Code 1910, § 5538. "Upon every petition the clerk shall indorse the date of its filing in office, which shall be considered the time of the commencement of the suit." Civil Code 1910, § 5551. "To every petition the clerk shall annex a process * * * requiring the appearance of the defendant at the return term of the court." Civil Code 1910, § 5552. The mere filing of a petition without service will not suffice to authorize the action to be treated as commenced and pending. There must be service to create a suit pending between the parties dating from the date of filing. Stallings v. Stallings, 127 Ga. 467, 56 S. E. 469. 9 L. R. A. (N. S.) 593. In construing what is now section 5551 of Civil Code 1910...