Clark v. Newsome

• Decision Date: 17 January 1935
• Docket Number: 10405.
• Citation: 178 S.E. 386,180 Ga. 97
• Parties: CLARK v. NEWSOME. [a1]
• Court: Georgia Supreme Court

178 S.E. 386

180 Ga. 97

CLARK v. NEWSOME. ^[a1]

No. 10405.

Supreme Court of Georgia

January 17, 1935

Syllabus by the Court.

Where a suit was brought in a certain county, against the county and an individual residing in a different county, as alleged joint tort-feasors, and was dismissed as to the county because it did not state a cause of action, and was dismissed as to the individual because in the absence of the county as a codefendant the court had no jurisdiction of the individual defendant, each such dismissal being involuntary in respect to the plaintiff, the provisions of section 4381 of the Civil Code of 1910, as properly construed, would permit the plaintiff to renew the action against the individual defendant within six months from the dismissal as to such defendant, notwithstanding the action would be otherwise barred by the statute of limitations. The law as contained in this section 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 dismissals, where the merits are not adjudicated.

Certified Question from Court of Appeals.

Suit by Elgin Clark against John Newsome. To review the judgment plaintiff brought error to the Court of Appeals, which certifies a question.

Question answered.

O'Neal & O'Neal, of Savannah, for plaintiff in error.

Abrahams Bouhan, Atkinson & Lawrence and A. A. Lawrence, all of Savannah, for defendant in error.

BELL Justice.

The Court of Appeals certified the following question "Where a plaintiff brought an action in H. County jointly against H. County and N., a person residing in a different county of this State, to recover damages for personal injuries arising out of an automobile accident which occurred on May 29, 1930, near a bridge on a public road in H. County while plaintiff was riding in an automobile driven by N., and said suit was duly served on H. County on May 26 1931, and duly served on N. by 'second original' on May 25, 1931, and the two defendants filed separate demurrers to the petition, both of which were overruled by the trial judge, and on writ of error the Court of Appeals (46 Ga.App. 363, 167 S.E. 748), on February 8, 1933, reversed the trial court's judgment on the county's demurrer, because the petition 'failed to allege that the injuries were caused by a defective condition of a bridge,' and at the same time held: 'Since the petition set out no cause of action against the county, and since it appears from the petition that the other defendant, the operator of the automobile, was a non-resident of the county, living in this State, the court had no jurisdiction as to him, and it was error to overrule his demurrer to the petition, which was upon the ground that the court had no jurisdiction as to him' (thus passing upon the merits of the case alleged against the county, but merely holding that the trial court had no jurisdiction as to N.); and after the remittitur of the Court of Appeals went to the trial court the petition was amended, the demurrer was renewed, and the presiding judge sustained the demurrer and dismissed the case; and on June 23, 1933, within six months after the decision of the Court of Appeals and the subsequent dismissal of the case by the trial court, but not within two years after the right of action accrued (Civil Code 1910, § 4497), the same plaintiff filed the same cause of action against N. alone, in a county which had jurisdiction of both N. and the subject-matter: Under the facts stated, did the Civil Code (1910), § 4381, so toll the statute of limitations as to allow the plaintiff to renew the original action?"

We answer this question in the affirmative. Section 4381 of the Civil Code of 1910 is as follows: "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 clause." In 1847 the Legislature passed an act providing as follows: "Whenever any case now or hereafter pending in any of the courts of this State, either at law or in equity, commenced within the time limited by law, shall be discontinued, dismissed, or the plaintiff therein become nonsuited, and the plaintiff's claim may be barred during the pending thereof by any law now in force in this State, the plaintiff may, at any time within six months from such termination of the case, and not after, renew or recommence the same, in any court having jurisdiction thereof in this State, any law, usage, or custom to the contrary notwithstanding; provided, that nothing in this act shall be construed so as to authorize the renewal of any case after a second discontinuance, dismissal, or nonsuit." Ga. Laws 1847, p. 217. In 1856 the Legislature passed another act, upon the same subject, in the following terms: "That when any suits shall be commenced within the times limited by this act, and the same shall be discontinued, dismissed, or the Plaintiff nonsuited, or judgment be arrested, and during the pending of such suit, the time within which such suit is to be brought by the provisions of this act shall expire. It shall be lawful for the plaintiff to renew said suit at any time within six months after such termination of the case, but this right shall only extend to one renewal." Ga. Laws 1855-56, p. 237, § 33. In the Code of 1863 (section 2873), the language of these statutes was changed to the form which now appears in the Code of 1910, § 4381, and which likewise appeared in each of the intermediate Codes. The Code of 1863 was "adopted" and made "of force" as the Code of Georgia. Laws 1860, p. 24. Central of Ga. Ry. Co. v. State, 104 Ga. 831 (5), 840, 31 S.E. 531, 42 L.R.A. 518. It is contended by counsel for the defendant that in the codification of the acts of 1847 and 1856 the language was so changed as to result in an amendment of the law, and that now a suit cannot be renewed unless the plaintiff shall have been nonsuited or the action was voluntarily dismissed or discontinued by him. In the present case the suit was dismissed by the court on demurrer, though without judgment on the merits, and the question is: Does the right of renewal exist in case of such involuntary dismissal? In the adoption of the Code of 1863 it was the evident intention of the Legislature to enact into law every provision contained in such Code, "including such new matter as was introduced, as well as such changes and modifications as were clearly made in existing laws." Central of Ga. Ry. Co. v. State, 104 Ga. 831, 841, 31 S.E. 531, 534, 42 L.R.A. 518. Where such intention as to change appears, it must be given effect, not because of any power of legislation vested in the codifiers, but because of the adopting statute. The rule is, however, that, "unless the contrary manifestly appears from the words employed, the language of a Code section should be understood as intending to state the existing law, and not to change it." Lamar v. McLaren, 107 Ga. 591, 599, 34 S.E. 116, 119.

In Cox v. Berry, 13 Ga. 306, before the Code of 1863, this court had under consideration the act of 1847, and in that decision it was said: "We are not held to a narrow and technical construction of this Act, but are bound to give effect to the manifest intention of the Legislature. It gives relief in any case which may be brought in any of the Courts of the State. That is, in all instances, where the plaintiff is, in the exercise of a proper diligence, attempting by judicial proceeding, to assert his right and enforce his remedy. The Legislature meant to say, that the dismissal discontinuance or non-suit of any proceeding which has for its object the assertion of a right, should not prejudice that right so far as the Statute of Limitations is concerned, if that proceeding is renewed in the same or in any other form within six months. If we consider the mischief, we must extend the construction of the remedy thus far, else the mischief is not covered by it. The Act is remedial and is to be literally construed." From the whole decision it is apparent that the word ""literally" was a typographical error, and that the word "liberally" was intended. Some twenty years following the adoption of the Code of 1863, and after noting the verbal changes made in codification, this court, in Rountree v. Key, 71 Ga. 214, had the following to say touching the law here under consideration: "An examination of the rulings of this court on the act of 1847, substantially re-enacted on this point by the act of 1856-acts of 1856, p. 237-convinces us that this court has gone great lengths in permitting the renewal of suits within six months, so as not to be barred, if the original suit was not barred, so as to extend the provisions to almost any case where the suit was dismissed not on its merits. See [ Jordan v....