Almand v. Northern Assurance Co. Ltd.

Court of Appeals of Georgia

Almand v. Northern Assurance Co. Ltd.

73 S.E.2d 101, 87 Ga. App. 193, 1952 Ga. App. LEXIS 648

Court of Appeals of Georgia·Decided November 13, 1952·No. 34298·Published·Cited by 6 cases

Opinion

Townsend, J.

1. “A writ of error will be dismissed if while it is pending an event occurs which makes the determination of it unnecessary.” Akerman v. Mayor &c. of Cartersville, 119 Ga. 27 (1) (45 S. E. 725); Turner v. Hill, 17 Ga. App. 257 (86 S. E. 460); Drury v. Cameron & Barclay Co., 25 Ga. App. 15 (102 S. E. 373).

2. Where, as here, a suit is dismissed on demurrer for a defect not going to the merits, and prior to the tendering of the bill of exceptions another suit is instituted by the plaintiff against the same defendant, based on the same cause of action, in a court of this State having jurisdiction of the subject matter, the bringing of the second action’ amounts to an acquiescence in the ruling on demurrer and is a relinquishment of the right to except thereto. Hall v. Alford, 34 Ga. App. 753 (131 S. E. 95).

*194 Decided November 13, 1952. O. J. Tolnas, for plaintiff in error. Lokey, Bowden & Rolleston, contra.

3. This decision is not changed by the further fact—appearing from a verified answer to the motion to dismiss on behalf of the plaintiff in error—that a plea in abatement was filed to the second suit in the City Court of Athens, since the dismissal of this action is without prejudice to the prosecution of the renewed action, and must necessarily result in a judgment adverse to such plea. Hall v. Alford, supra.

Writ of enor dismissed.

Gardner, P.J., and Carlisle, J., concur.

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Townsend, J.

1. “A writ of error will be dismissed if while it is pending an event occurs which makes the determination of it unnecessary.” Akerman v. Mayor &c. of Cartersville, 119 Ga. 27 (1) (45 S. E. 725); Turner v. Hill, 17 Ga. App. 257 (86 S. E. 460); Drury v. Cameron & Barclay Co., 25 Ga. App. 15 (102 S. E. 373).

2. Where, as here, a suit is dismissed on demurrer for a defect not going to the merits, and prior to the tendering of the bill of exceptions another suit is instituted by the plaintiff against the same defendant, based on the same cause of action, in a court of this State having jurisdiction of the subject matter, the bringing of the second action’ amounts to an acquiescence in the ruling on demurrer and is a relinquishment of the right to except thereto. Hall v. Alford, 34 Ga. App. 753 (131 S. E. 95).

*194 Decided November 13, 1952. O. J. Tolnas, for plaintiff in error. Lokey, Bowden & Rolleston, contra.

3. This decision is not changed by the further fact—appearing from a verified answer to the motion to dismiss on behalf of the plaintiff in error—that a plea in abatement was filed to the second suit in the City Court of Athens, since the dismissal of this action is without prejudice to the prosecution of the renewed action, and must necessarily result in a judgment adverse to such plea. Hall v. Alford, supra.

Writ of enor dismissed.

Gardner, P.J., and Carlisle, J., concur.

Almand v. Northern Assurance Co. Ltd., 73 S.E.2d 101, 87 Ga. App. 193, 1952 Ga. App. LEXIS 648 (Ga. Ct. App. 1952).

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