Southern Flour & Grain Co v. Simmons

• Citation: 49 Ga.App. 517,176 S.E. 121
• Decision Date: 19 September 1934
• Docket Number: No. 23398.,23398.
• Parties: SOUTHERN FLOUR & GRAIN CO. v. SIMMONS et al.
• Court: United States Court of Appeals (Georgia)

49 Ga.App. 517

176 S.E. 121

SOUTHERN FLOUR & GRAIN CO.

v.SIMMONS et al.

No. 23398.

Court of Appeals of Georgia,

Division No. 1.

Sept. 19, 1934.

Syllabus by the Court.

1. The provision of section 4381 of the Civil Code of 1910, that, "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 theoriginal case, " applies only in cases where the suit dismissed or nonsuited was a valid one.

2. The fudge of the superior court did not err in overruling the certiorari and sustaining the judgment of the municipal court.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by the Southern Flour & Grain Company against J. W. W. Simmons and others. Demurrer of defendant Ed Rhodes to the petition was sustained, the superior court overruled plaintiff's certiorari, and plaintiff brings error.

Affirmed.

On the 8th of July, 1929, the Southern Flour & Grain Company filed suit in the city court of Hall county against J. W. W. Simmons, Ed Rhodes, and Glenn Puett doing "business under the partnership name of Puett, Rhodes and Simmons, " upon an account for merchandise alleged to have been bought in October, 1920. At the time of the filing of that suit Simmons was a resident of Hall county, Puett a resident of De Kalb, and Rhodes a resident of Milton. Simmons (the resident defendant) filed a special plea alleging that the partnership "was dissolved in the year 1925, anterior to the date of the account sued on, " and "that he was not a member of the partnership of Puett, Rhodes and Simmons at the time said account was made, and for that reason is not liable for said account." The jury found in favor of Simmons' special plea, and the verdict of the jury was made the judgment of the court. Puett and Rhodes (the nonresident defendants) did not appear or plead, and judgment was rendered against them. A levy was made on the property of Rhodes, who filed an affidavit of illegality which was dismissed by the judge of the city court of Hall county. This judgment of the city court of Hall county was reversed by the Court of Appeals. Before the remittitur of the Court of Appeals was made the judgment of the court below, the plaintiff dismissed its original suit on account against all of the defendants. In August, 1932, and within six months from the dismissal of said suit, the plaintiff filed a new suit on the same account against the same parties, alleging that they "were partners operating under the business or firm of Puett, Rhodes and Simmons." This second suit was filed in the municipal court of Atlanta, the county of Milton, the residence of defendant Rhodes, having become a part of Fulton county since the filing of the first suit. Simmons demurred on the ground that the petition showed on its face that the cause of action had been adjudicated as to him, and a consent order sustaining the demurrer was signed by the judge of the municipal court of Atlanta. Rhodes demurred on the ground of no cause of action and on the ground that the cause was barred by the statute of limitations. Rhodes' demurrer was sustained, and plaintiff appealed to the appellate division of the municipal court, which sustained the judgment of the trial court. The plaintiff carried the case by certiorari to the superior court, and the judge of the superior court overruled the certiorari. On this judgment the plaintiff assigns error.

W. A. McClain and John D. Stewart, both of Atlanta, for plaintiff in error.

John F. Echols, of Atlanta, and G. Fred Kelley, of Gainesville, for defendants in error.

BROYLES, Chief Judge (after stating the foregoing facts).

The account sued on is alleged to have been incurred in October, 1926. The suit in the municipal court of Atlanta was filed in August, 1932. Was the statute of limitations tolled, under section 43S1 of the Civil Code 1910, by the suit filed in the city court of Hall county in July, 1929? We think not. Simmons was the only defendant who gave the city court of Hall county jurisdiction of the original suit. The other two defendants did not waive jurisdiction of the person by appearing or pleading in that court. In Ford v. Clark, 75 Ga. 612, it was held that: "If one sues a partnership and is non-suited, he cannot re-commence his action against one of the partners individually within six months after such non-suit, so as to prevent the statute of limitations from attaching, under section 2932 of the Code [section 4381 of the Civil Code of 1910]."

Under this ruling it was necessary for the plaintiff, in order to maintain the second suit, to include therein the same defendants that he had in the first suit, and, although it had been judicially determined, in a court that had jurisdiction of Simmons, that Simmons was not a member of the partnership, and this judgment was never altered or excepted to, the plaintiff again sued him as a member of the partnership on the same account, and then consented for Simmons' demurrer to the petition to be sustained and the case dismissed as to him. This is contrary to the spirit of the law. In the opinion in the Ford Case, supra (page 613 of 75 Ga.), Justice Blandford, speaking for...