Hendrix v. Kellogg

32 Ga. 435

• Court: Supreme Court of Georgia
• Decided: March 15, 1861
• Status: Published

Opinion

By the Court.

Lyoüt, J.,

delivering the opinion.

The plaintiff had filed his petition, for a writ of certiorari to the judgment of a Justice’s Court, within six months from the rendering of that judgment, which was dismissed on motion of counsel for the defendant, for some informality in the suing out the application.. While the application was pending in the Superior Court, the six months in which the writ was limited to be brought or allowed by statute, expired. And this second petition or application was brought within six months from the time the former was dismissed. The Court dismissed this second application on the ground that it was barred by the Statute of Limitations, to which the plaintiff excepted, and the case comes before us for the review of that judgment.

The only questiommade or argued is, whether the petition or application for certiorari is a suit in the sense of that term, as used in 23d section of the Statute of Limitations of 6th March, 1856, pam. Acts, p. .237. “That when any suits shall be commenced within the time limited by this Act, and the same shall be discontinued, dismissed, or the plaintiff non-suited 'or judgment be arrested, and during the pendency of such suit the time, within which such suit is to be brought by the provisions of this act, shall expire. It shall be lawful to renew said suit at any time within six months after such termination of the case, but this right shall only extend to one renewal.” If certioraris are suits, then the plaintiff was entitled to renew his application and the judgment of the Court below, dismissing it, erroneous. We hold that it was. A suit is defined “to be an action or process for the recovery of a right or claim ; a legal application to a Court for justice; the prosecution of a right before any tribunal.” And indeed what else is a certiorari, but a process, an ‘action, or a prosecution by petition to the Court for the recovery of a right, without which the right is gone ? It is a suit in the literal sense of the term, and to that we are disposed to confine ourselves in the construction of this statute, as all Courts are bound, or ought to be, in the construction of Statute of Limitations—a strict, literal construction—no more and no less than the statute by its letter declares. There is no hardship in this rule, and if there was, we could not help it. If parties desire a speedy hearing, and not a mere avoidance of a legal demand, they should not press a captious and unmeaning objection to the dismissal of the action when it is once before the Court.

Let the judgment be reversed.