Milam v. Mojonnier Bros. Co., 50671

• Decision Date: 04 June 1975
• Docket Number: No. 1,No. 50671,50671,1
• Citation: 135 Ga.App. 208,217 S.E.2d 355
• Parties: R. W. MILAM v. MOJONNIER BROTHERS COMPANY
• Court: Georgia Court of Appeals

Page 355

217 S.E.2d 355

135 Ga.App. 208

R. W. MILAM v. MOJONNIER BROTHERS COMPANY.

No. 50671.

Court of Appeals of Georgia, Division No. 1.

June 4, 1975.

Rehearing Denied June 19, 1975.

Neely, Freeman & Hawkins, Paul M. Hawkins, John E. Sawhill, III, Atlanta, for appellant.

Smith, Cohen, Ringel, Kohler & Martin, Fred W. Ajax, Jr., Atlanta, for appellee.

MARSHALL, Judge.

This is an appeal from the granting of a motion for summary judgment in favor of the appellee, defendant in the lower court.

Appellant Milam originally filed his complaint on October 18, 1963, in Fulton Superior Court against Miss Georgia Dairies, Inc., and appellee. Miss Georgia Dairies, Inc., filed an answer and a general demurrer. Appellee also filed an answer. Subsequently, Miss Georgia Dairies, Inc., filed its motion for summary judgment, and a hearing was held on August 21, 1968, and the trial court granted summary judgment on that same day. Appellant filed an appeal to this court on August 27, 1968, as to the summary judgment which had been granted in favor of Miss Georgia Dairies, Inc. This court affirmed the trial court's granting of the summary judgment on December 5, 1968, and on December 18, 1968, notice from this court of the affirmance of the granting of the summary judgment was forwarded to Fulton Superior Court and filed therein on December 19, 1968. On January 10, 1969, the trial judge in Fulton Superior Court signed and attached to the notice the order of the trial court allowing the remittitur as previously decided by this court to be entered on record, but this order was never entered on the record of the trial court, nor was the order of the trial court marked filed after the trial judge signed it.

On May 28, 1974, appellant, having employed new counsel, refiled the action against appellee, the basis for the action being an incident which occurred on November 24, 1961. This same incident formed the basis for the prior suit brought against both Miss Georgia Dairies, Inc., and appellee. Subsequent to the refiling of the suit, appellee brought its motion for summary judgment, and the trial court entered judgment on the motion. This is the judgment from which appellant appealed.

Appellee's brief contained the following 'note of clarification': 'The parties agree that appellant's cause of action is one for personal injury and is thus subject to a two-year statute of limitation. The parties agree also that appellant's first suit asserting this cause of action was dismissed automatically pursuant to the 'five-year rule' found at Georgia Code § 3-512 and Georgia Code § 81A-141(e). The dispute which forms the gravamen of the issue presented in this appeal is when it became dismissed, appellant contending that the present action was refiled within six months of said dismissal, as allowed by Georgia Code § 3-808, and appellee contending that it was not so refiled and is therefore barred by the applicable two-year statute of limitation, as asserted in appellee's fourth defense.' Since appellant has not disputed the statement in appellee's brief, we treat it as true.

Appellee's brief goes on to assert the following: 'It is appellee's contention that the last written order in the previous action (the date from which the five-year rule dismissal is calculated), at the latest, is the court's order of August 21, 1968, the record reflecting that to be the last order which was both signed and filed or entered of record. Appellee's version of the facts, then, is that the plaintiff's original lawsuit was automatically dismissed on August 21, 1973 (five years from the last order properly entered); thus appellant's present action, not having been refiled within six months, or by February 21, 1974, is barred by the statute of limitations.' Held:

With the foregoing contention of appellee, we agree.

Code Ann. § 3-1004, as amended, provides that an action for personal injury must be brought within two years from its accrual. Code Ann. § 3-808, as amended, allows a plaintiff who has timely filed such an action to refile it within six months from a dismissal without prejudice. CPA § 41(e) (Code Ann. § 81A-141(e)) provides that 'Any suit in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.' See also, Ga.L.1967, pp. 557, 558 (Code Ann. § 3-512). The 'five-year rule' is mandatory and places squarely upon the plaintiff the duty to comply with the law and to obtain a written order of continuance or other written order at some time during a five year period and to make sure the same is entered in the record. Norton v. Brady, 129 Ga.App. 753, 201 S.E.2d 188; Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595; Dupriest v. Reese, 104 Ga.App. 805, 123 S.E.2d 161. Dismissal is automatic on expiration of five years, acts on the part of the clerk in that regard being purely ministerial. Freeman v. Ehlers, 108 Ga.App. 640, 134 S.E.2d 530. Further, to avoid the operation of these sections and thus automatic dismissal, a plaintiff must obtain a written order and have it entered or filed within five years. Swint v. Smith, supra. Bridger...