McGhee v. Mayor, etc. of City of Gainesville
Decision Date | 02 April 1887 |
Citation | 3 S.E. 670,78 Ga. 790 |
Parties | McGHEE v. MAYOR, ETC., OF GAINESVILLE. |
Court | Georgia Supreme Court |
Error from superior court, Hall county; ESTES, Judge.
Action against the mayor and council of the city of Gainesville. Section 2932 of the Georgia Code 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. Other material facts appear in the opinion.
C. D Hill, H. C. Glenn, and W. F. Findley, for plaintiff in error.
H. H Perry, for defendants.
Just before his alleged cause of action was barred, McGhee brought suit against the mayor and council of Gainesville, for a personal injury sustained by him in consequence of a hole having been negligently left in the street, not protected by boards or lights so as to give warning of its dangerous condition. The declaration was filed in office and the filing marked on it by the clerk. Nothing was done with it at the appearance term; but at the trial term it was dismissed for want of process, and of service on the defendant. Within six months of the dismissal another suit for the same cause of action was instituted. When that case was called for trial a demurrer was filed to it, upon the ground that it appeared from the face of the declaration that the action was barred by the statute of limitations. The court sustained this demurrer, and dismissed the action; and that judgment on the demurrer makes the question we are called upon to decide.
1. There is no doubt that the dismissal of the first action was proper. Under section 3490 of the Code, it is provided that void process, or where there is no process or waiver thereof, cannot be amended; but if service be acknowledged by the defendant, and upon hearing testimony the court becomes satisfied that process was waived by the defendant, and that, at the time such service was acknowledged, by accident or mistake, the entry of such waiver was omitted, such omission may be supplied by amendment nunc pro tunc. There was no service of this writ; there was no attempt to serve it; nor was there any attempt to supply the omission of this process by amendment. And if there had been, the amendment could not have been allowed. We think the first suit was void, for the want of process, or the waiver thereof. This question was considered by two judges in the case of Mitchell v. Long, 74 Ga. 94; and although we differed as to its application to that case, the process being defective in one respect, yet we held that want of process, and the failure to waive the service, or to appear and plead, was not amendable; that it rendered the suit void, and the deficiency could not be supplied. We there said: We hold in this case that want of process rendered the proceeding void.
2. It is only...
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