Fagan v. Mctier

• Decision Date: 27 April 1888
• Citation: 6 S.E. 177,81 Ga. 73
• Parties: Fagan v. McTier.
• Court: Georgia Supreme Court

6 S.E. 177

(81 Ga. 73)

Fagan

v.McTier.

Supreme Court of Georgia.

April 27, 1888.

Appeal—Dismissal—When not a Bar to Another Suit.

Code Ga. 1882, § 3627, declares that "an appeal to the superior court is a de novo investigation " of the case. Section 3447 authorizes a plaintiff to dismiss his action at any time, and section 3446 authorizes him to recommence his action on certain conditions. Plaintiff, having appealed to the superior court from a judgment of the county court, had the case dismissed when it was called in the superior court, and afterwards recommenced it in the superior court. Held, that defendant cannot plead the judgment on the former trial in bar of the plaintiff's action.

Error from superior court, Jefferson county; Hines, Judge.

Action in the county court by Fagan against McTier. Judgment for defendant. Plaintiff appealed to the superior court, and, when the case was called, it was dismissed on his motion by order of the court. Plaintiff re-commenced the suit in the superior court, and defendant pleaded a former recovery, which the court held was no bar in the second action, and the defendant appealed. Code Ga. 1882, § 3627, declares that "an appeal to the superior court is a de novo investigation" of the case.

Gamble & Hunter, for plaintiff in error.

W. L, Phillips, for defendant in error.

Simmons, J. The only complaint made by this bill of exceptions is that the court erred in striking the plea of the defendant in the court below of a former recovery. The court below held that where a plaintiff instituted his suit in the county court, and the judgment in that court was for the defendant, and the plaintiff appealed to the superior court, and the case, when called in the superior court, was dismissed on the plaintiff's motion, and the plaintiff afterwards brought the same action in the superior court, a plea by the defend-ant of a former recovery was not a good plea to the second action. We think this ruling of the court below was right. When the plaintiff lost his case in the county court, and entered an appeal from the judgment of that court to the superior court, the whole case was transferred from the county court to the superior court. Code, § 3627. It was the same, in effect, as if it had been commenced originally in the superior court. The case was then pending in the superior court. The Code, § 3447, declares that "the plaintiff in any action in any court may dismiss his action either in vacation or in term-time." The whole case...