Harris v. Gray

• Decision Date: 31 July 1873
• Citation: 49 Ga. 585
• Parties: JOSHUA HARRIS et al., plaintiffs in err0r. v. JAMES M. GRAY, executor, defendant in error.
• Court: Georgia Supreme Court

49 Ga. 585

JOSHUA HARRIS et al., plaintiffs in err0r. v. JAMES M. GRAY, executor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Statute of limitations. Before Judge Robinson. Jones Superior Court. October Adjourned Term, 1872.

Gray, as executor of Nancy T. Parrish, deceased, brought complaint to the April term, 1872, of Jones Superior Court, against Joshua Harris and Arthur Harris, on a note made by said defendants on December 2d, 1862, whereby they promised to pay to the plaintiff, on December 1st, 1864, $1,445 20, with interest from date.

The defendants moved to dismiss the suit on the following grounds: That an action upon said note was first brought to the April term, 1870, of said Court, and dismissed, as appears from the entry made by the presiding Judge upon his docket, "for want of jurisdiction." That a second suit was broughtto the October term, 1871, which was again dismissed at the April term, 1872, by the following order:

"It appearing to the Court that the note sued upon in this action was given for the purchase of slaves; that it was given in 1862, and that this action has been brought since the adoption of the Constitution of 1868; it is, on motion of defendant's counsel, ordered, that said cause be dismissed upon the ground that this Court has no jurisdiction thereof."

It was admitted by plaintiff's counsel that these facts were true, and that no exceptions had ever been filed to the decisions of the presiding Judge in dismissing the two suits aforesaid.

Under this statement of facts the defendants contended that this suit was barred by the Act of March 16th, 1869. The motion was overruled, and the defendants excepted.

*Lyons & Irvin; W. A. Lofton, for plaintiffs in error.

Blount & Hardeman, for defendant.

McCAY, Judge.

This was a motion to dismiss the plaintiff's suit, because, upon the face of his writ, it appeared that the debt was barred by the Limitation Act of March, 1869. The debt was due before the 1st of June, 1865, and this suit not brought until after January 1st, 1870. The reply to the motion was, first, that suit had been brought before the 1st of January, 1870; that at the October term, 1870, said suit was dismissed; that another suit had been brought within six months, which also was dismissed, and that the present suit was within six months of the dismissal of the second suit. It was stated, also, and does not seem to have been denied, that the note sued on was given for negroes. The present suit should have been brought by the 1st of January, 1870. Even if section 2972 of the Code should be held to be of force as to the Act of 1869, the present suit is not brought within six months from the dismissal of the first suit, and by the express terms of the Code, this privilege of suing again in six months can only be exercised once, if the debt be otherwise barred.

But it is said that as this was a negro debt, the plaintiff was prohibited from suing by the Constitution of 1868, and that the Act of 1869 cannot apply to his case. Assuming that the Act of 1869 does not apply to a case where plaintiff was pohibited...