Ternest v. Ga. Coast & P. R. Co

• Decision Date: 16 November 1916
• Docket Number: (No. 7616.)
• Parties: TERNEST. v. GEORGIA COAST & P. R. CO.
• Court: Georgia Court of Appeals

(19 Ga.App. 94)

90 S.E. 1040

TERNEST.

v.GEORGIA COAST & P. R. CO.

(No. 7616.)

Court of Appeals of Georgia.

Nov. 16, 1916.

On Rehearing, Dec. 19, 1916.

(Syllabus by the Court.)

Error from City Court of Reidsville; J. V. Kelley, pro hac Judge.

Suit by N. S. Ternest against the Georgia Coast & Piedmont Railroad Company. There was a judgment of dismissal, and plaintiff brings error. Affirmed.

Oliver & Oliver, of Savannah, for plaintiff in error.

Hitch & Denmark, of Savannah, for defendant in error.

HODGES, J. Suit was brought against the railway company for personal injuries, alleged to have been received in 1909. The present action is a renewal of the original suit, and was filed June 3, 1912. The defendant demurred on the ground that the action was barred by the statute of limitations. The action, not having been brought within two years after the right of action accrued, was barred (Civil Code, § 4497), unless the operation of the statute of limitations was arrested under section 4381 of the Civil Code. Under that section, if a plaintiff is nonsuited, he has the right of renewal in six months; if he discontinues or dismisses his case he has the same right. A dismissal for want of prosecution is held to be a discontinuance, within the meaning of the statute (Rountree v. Key, 71 Ga. 214); but where there has been a dismissal by the court on demurrer, the right of renewal does not exist (Kimbro v. Virginia, etc., Ry. Co., 56 Ga. 185[3]). For the purpose of showing that he was entitled to renew the action, the plaintiff amended the second suit by adding the following allegation:

"Petitioner shows that before filing the suit filed in office June 3, 1912, petitioner had filed a former suit on the same cause of action on September 24, 1910, which suit was dismissed upon a date at present unknown to petitioner, but which will appear upon the docket of the city court of Reidsville; that after the said suit was dismissed, and within the period prescribed by law, petitioner, as he had a right to do, renewed his suit in the city court of Reidsville on June 3, 1912."

It will be observed from the above that it is not alleged how the suit was dismissed; and pleadings are to be construed most strongly against the pleader. If dismissed on general demurrer there was no right of renewal under the statute. If dismissed for want of jurisdiction by the court, there was no right of renewal. The allegation of the right of renewal was a mere conclusion of the pleader. There is nothing in the allegation upon which the court could determine that the renewal suit was within the statute. "Where, to prevent the bar of the statute of limitations, the plaintiff relies on the privilege of renewal within six months, conferred by the Civil Code, * * * a copy of the record in the first suit should be...