Nicholas v. British Am. Assur. Co
| Decision Date | 27 January 1900 |
| Citation | 34 S.E. 1004,109 Ga. 621 |
| Parties | NICHOLAS. v. BRITISH AMERICA ASSUR. CO. |
| Court | Georgia Supreme Court |
ACTION—COMMENCEMENT—PROCESS.
Where a petition setting out a cause of action has been filed, and followed up by the issu ance of process and service, the time of the commencement of the suit is the date of its filing. But where, after such filing, no process of any character was issued and annexed to the petition, nor waived, before the commencement of the term to which the petition was made returnable, there was in fact no suit pending. The filing of the petition, without more, does not operate to commence a suit; nor has the judge in such a case authority, at or after the return term, to order a new process to issue.
(Syllabus by the Court.)
Error from superior court, Fulton county; J. H. Lumpkin, Judge.
Action by Ann Nicholas against the British America Assurance Company. Judgment for defendant. Plaintiff brings error. Affirmed.
Jas. L. Key, for plaintiff in error.
Westmoreland Bros., for defendant in error.
On the 6th day of July, 1897, the plaintiff in error filed in the office of the clerk of the superior court of Fulton county a petition seeking to recover a sum of money from the defendant in error on account of the loss of certain personal goods by fire which occurred on the 26th day of March, 1897, and which was covered by a policy of fire insurance, on which the suit was based. A copy of the policy was attached to the petition, and, among others, contained the following stipulation: "No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity * * * unless commenced within twelve months next after the fire." The petition prayed process against the defendant, requiring it to appear at the fall term of the superior court, which convened on the first Monday in September, 1897. It appears from a recitation in the bill of exceptions that "through inadvertence in the clerk's office, the petition having been mislaid, process was not attached until the 1st day of October, 1897, " which process required the defendant to appear at the spring term, 1898, of said court, which convened on the first Monday in March. It further appears that, without any order of the court, the clerk on the 1st day of October, 1897, attached to the petition an original process, requiring the defendant to appear and answer at the March term, 1898; and it also appears that service of the petition and this process was made on the 4th day of October, 1897; and thus the case stood until the 8th day of March, 1898, when the defendant filed a motion to vacate the service in said case. At the hearing of this motion the presiding judge intimated a doubt as to the authority of the clerk to have attached process in the absence of an order so to do. Thereupon the plaintiff applied for an order making the spring term, 1899, which convened on the first Monday in March in that year, the return term of the case, and requiring process to be attached, returnable to that term. The order was granted, and original process, bearing date January 18. 1899, was annexed to the petition, and serv-ice was perfected on the 21st of January, 1899. After the grant of this order, the case proceeded, and during the spring term, 1899, the defendant appeared, and demurred to the plaintiff's petition on the ground that the complaint and cause of action was barred; and on the hearing it was ordered by the court that the demurrer be sustained and the complaint dismissed, and to this order and Judgment the plaintiff in error excepted.
Inasmuch as the contract on which the suit was based carried with it a stipulation, binding upon both parties, that no suit or action on the contract should be sustained in any court unless commenced within 12 months next...
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