Morrison v. Bowen
| Decision Date | 02 July 1962 |
| Docket Number | No. 39584,No. 3,39584,3 |
| Parties | Ann MORRISON v. J. O. BOWEN, Trustee, et al |
| Court | Georgia Court of Appeals |
Sheats, Parker & Webb, Guy Parker, Atlanta, for plaintiff in error.
Zachary & Hunter, Decatur, for defendants in error.
Syllabus Opinion by the Court
1. A general demurrer admits as true facts properly pleaded, but not mere conclusions of the pleader where facts are not averred upon which the conclusions are supposed to rest. Huson Ice & Coal Co. v. City of Covington, 178 Ga. 6, 10, 172 S.E. 56; Yatesville Banking Co. v. Fourth Nat. Bank, 17 Ga.App. 420, 87 S.E. 606; Presley v. Presley, 77 Ga.App. 99, 47 S.E.2d 647; Dowling v. Southwell, 95 Ga.App. 29, 96 S.E.2d 903; Savannah News-Press, Inc. v. Harley, 100 Ga.App. 387, 111 S.E.2d 259.
2. In Capers v. Ball, 211 Ga. 502, 505, 87 S.E.2d 85, 88, it was held that a recital in a bill of exceptions that it had been tendered 'within the time provided by law' is a mere conclusion and not an affirmative showing of anything. Similarly, the recital in the petition that the plaintiff 'within the time provided by law renews her case pursuant to Code § 3-808' is a conclusion and fails to show affirmatively that the plaintiff has a right within the purview of that Code section to renew her action. In order to show the right to renew the suit within six months after the dismissal of a prior suit on the same cause of action, when such right is relied upon to relieve the plaintiff of the bar of the statute of limitation, it is necessary for the renewal petition to show affirmatively that the former petition was not a void suit, that it is such a valid suit as may be renewed under Code § 3-808, that it is based upon substantially the same cause of action, and that it is not a renewal of a previous action which was dismissed on its merits so that the dismissal would act as a bar to the rebringing of the petition. Talley v. Commercial Credit Co., 173 Ga. 828(2), 161 S.E. 832; Barber v. Rome, 39 Ga.App. 225, 146 S.E. 856; Ternest v. Ga. Coast, etc., R. Co., 19 Ga.App. 94, 90 S.E. 1040; Laughlin Motors, Inc v. General Finance & Thrift Corp., 101 Ga.App. 846, 115 S.E.2d 574.
3. The petition here which was filed in the Superior Court of DeKalb County merely alleges in paragraph 15 that the plaintiff 'filed this action originally on September 21, 1954, in this court against the same defendants, said case...
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Gottschalk v. Woods
...burden of affirmatively proving that his refiled lawsuit meets the criteria for renewal under OCGA § 9–2–61. See Morrison v. Bowen, 106 Ga.App. 464(2), 127 S.E.2d 194 (1962).Gottschalk has failed to carry his burden of showing that the criteria for removal have been met in this case. Contra......
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Brantley Cnty. Dev. Partners v. Brantley Cnty.
...such a showing, Defendants point to Georgia cases such as Whitesell and Morrison v. Bowen for support. 800 S.E.2d at 372; 127 S.E.2d 194, 195 (Ga.Ct.App. 1962). In a complaint stated only that “[t]his is a renewal action against [defendant] pursuant to [O.C.G.A.] § 9-261” and then provided ......
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Hudnall v. Kelly
...which was dismissed on its merits so that the dismissal would act as a bar to the rebringing of the petition. Morrison v. Bowen, 106 Ga.App. 464, 127 S.E.2d 194 (1962). Finally, the Georgia courts have stated that the Renewal Statute is not applicable where the original suit was filed in fe......
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Fulton Nat. Bank of Atlanta v. Young
...above proposition also see H. W. Ivey Constr. Co. v. Southwest Steel Products, 111 Ga.App. 527(2), 142 S.E.2d 394; Morrison v. Bowen, 106 Ga.App. 464(1), 127 S.E.2d 194; Rowland v. Rich's, Inc., 212 Ga. 640 at 641, 94 S.E.2d 688; Womble v. Georgia State Board of Examiners in Optometry, 221 ......