Thornhill v. Bullock, s. 43477
| Decision Date | 03 July 1968 |
| Docket Number | 43629,Nos. 43477,No. 1,s. 43477,1 |
| Citation | 118 Ga.App. 186,162 S.E.2d 886 |
| Parties | G. W. THORNHILL v. C. C. BULLOCK. Marie WELLS v. SEABOARD CONSTRUCTION COMPANY |
| Court | Georgia Court of Appeals |
Joseph E. Cheeley, Buford, for appellant Thornhill.
Whelchel, Dunlap & Gignilliat, William R. Gignilliat, Jr., Wright Willingham, Gainesville, for appellee Bullock.
Jones & Kemp, Charles M. Jones, Hinesville, for appellant Wells.
Bouhan, Lawrence, Williams & Levy, Walter C. Hartridge, II, E. Pomeroy Williams, Frank W. Seiler, Savannah, for appellee Seaboard Construction Co.
Syllabus Opinion by the Court
These cases are considered together because of the similarity of the questions raised.
Both cases involve an application of the renewal statute, Code Ann. § 3-808, which allows a plaintiff after having filed a suit within the time required by the statute of limitation, to renew his case once within six months after it shall have been discontinued or dismissed, notwithstanding that the statute of limitation on the cause of action has since expired.
Appellant Thornhill in his original suit sought to hold Carter Bullock and Joel Massey jointly and severally liable for injuries arising out of an automobile accident. The suit was brought in Hall County where defendant Massey resided. Bullock resided in a different county. A trial was had with the jury finding in favor of the resident defendant, Massey, but against the nonresident defendant, Bullock, for a certain sum. In such a case where the resident co-defendant is found not liable by the jury, the court's jurisdiction over the nonresident defendant vanishes. Southeastern Truck Lines v. Rann, 214 Ga. 813, 108 S.E.2d 561. Hall County Superior Court thereupon properly entered an order dismissing Bullock for want of jurisdiction. The renewal suit was brought within 6 months against Bullock in Meriwether County. The appeal in this case is from an order of Meriwether Superior Court sustaining Bullock's plea of statute of limitation and sustaining certain of his demurrers to the petition. The same are enumerated as error.
Appellant Mrs. Marie Wells in her original suit sought a recovery against the Seaboard Construction Company and W. W. Bunkley for the wrongful death of her husband in an automobile accident. She charged the defendants with joint and concurrent negligence, alleging in summary that Seaboard was negligent in failing to erect various warning devices as required by its contract, to warn motorists that the road upon which it was doing construction work intersected with another road and came to a 'dead end.' Bunkley was charged with gross negligence in the operation of the car in which the decedent was a passenger.
Mrs. Wells initially brought her suit against both defendants in Liberty County, the residence of Bunkley, then voluntarily dismissed the suit without prejudice. Thereafter, within 6 months, she renewed the suit in Glynn County against Seaboard. The appeal is from an order of Glynn Superior Court sustaining Seaboard's motion for summary judgment by which Seaboard's plea of statute of limitation was sustained. This order is enumerated as error. Held:
1. 'While the second (renewal) suit must be for the same cause of action as the first suit, it need not be an exact copy of the same, nor necessarily brought against all the defendants who were parties in the dismissed suit, unless all were necessary parties to the first suit.
Stevens v. Wood, 17 Ga.App. 756(2), 88 S.E. 413.
2. The precise question before the court in both cases is whether the renewal actions were defective for failure to bring the second actions against the same defendants named in the first suits. In both the Thornhill and Wells cases the defendants named in the first suit were jointly suable but severally liable. Therefore, under the holding in the Stevens case, supra, it was not necessary that all the defendants should be parties to either the first suit or the second suit. See also Burks v. Wheeler, 92 Ga.App. 478, 88 S.E.2d 793.
The argument is advanced by the appellees in both cases that the plaintiff's election to sue two defendants for the alleged...
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