Jernigan v. Collier

205 S.E.2d 450, 131 Ga. App. 162, 1974 Ga. App. LEXIS 1358

• Court: Court of Appeals of Georgia
• Decided: March 6, 1974
• Docket: 48778
• Status: Published

Opinions

Hall, Presiding Judge.

On December 18, 1970, Shirley Jernigan filed suit against Lena B. Collier for damages arising out of their March 1, 1969 automobile collision. After answering the suit, Lena B. Collier died on January 14, 1972. Pursuant to Code Ann. § 81A-125 (a) (1), on July 11,1972 her former counsel suggested her death upon the record. One hundred and eighty days thereafter, no proper defendant had been substituted as allowed by the statute. However, no motion was made nor order taken dismissing the suit.

Thereafter, on April 13, 1973 — well over a year following the death of the original defendant — plaintiff Jernigan paid the costs in the first action and brought a new suit, substantially like the original suit, against Frank S. Collier as executor under the will of Lena B. Collier, deceased. The defendant answered, pleading estoppel, laches, failure to state a claim, the statute of limitation, and asserting that the action was barred because brought after the expiration of the time allowed by the statute for the substitution of parties, and no substitution having been made, the first suit automatically stood dismissed upon the merits. The defendant then moved for judgment on the pleadings and plaintiff moved to strike certain defenses. The trial court, by order dated August 11, 1973 overruled the plaintiffs motion and granted defendant’s motion for judgment on the pleadings. Plaintiff appeals from both orders.

The sole question here is the proper construction of Code Ann. § 81A-125 (a) (l).¹ The defendant contends that where no substitution is made within 180 days after service of a suggestion of death the action automatically stands dismissed and the dismissal is on the merits. The plaintiff agrees that an automatic dismissal occurred, but contends that the dismissal is not on the merits, citing decisions interpreting former Code Ann. § 3-512 and Code Ann. § 81A-141 (e) (providing for automatic dismissal of cases after five years where no written order is taken.) Both positions are in error to the extent to which they assume that an automatic dismissal occurred.

For reasons detailed below, in the absence of an order dismissing the original suit, it is still pending. The Clerk of the Superior Court of Henry County in response to our inquiry has certified that no order of dismissal has been entered in the original suit filed by Shirley Jernigan against Lena B. Collier. It follows therefore that the original action is pending, and the defendant was not entitled to a judgment on his theory of res judicata, although an affirmative defense on the ground of the pendency of the original suit would require that the second suit be dismissed. Code § 3-601.

Code Ann. § 81A-125 (a) (1) is practically identical to Federal Rule 25 except for the fact that the period is 90 days under the federal rule whereas it is 180 days under the CPA.

Under the federal rule, "If there is no motion for substitution made within the 90 day period, the action may be dismissed. Dismissal is not mandatory, despite the use of the word 'shall’ in the amended rule, even under these circumstances.” 7A Wright & Miller, Federal Practice and Procedure: Civil, p. 659, § 1955. Therefore, dismissal is not automatic. Any dismissal which is not automatic but which may be obtained, necessarily requires, to effect a dismissal, the entry of an order of dismissal. Should such an order be sought and granted, and a dismissal effected, the next question is the effect of the dismissal.

"Does a dismissal for failure to make substitution in a timely fashion under present Rule 25 (a) (1) operate as a dismissal upon the merits, which precludes another suit on the same cause of action? What little authority there was under original Rule 25 (a) (1) was in conflict, mainly because of the confused status of the original rule. We believe that a dismissal under present Rule 25 (a) (1) for failure to make timely substitution should operate as a dismissal on the merits. Present Rule 25 (a) (1), unlike original Rule 25 (a) (1), operates to give notice to all interested persons of the fact of the death of a party, and there is no time limit upon substitution until such notice has been given. And even this time limit is now subject to enlargement for good cause shown in the discretion of the court. Thus we think it fair to require that substitution be made in accordance with Rule 25 (a) (1) at pain of a judgment on the merits for failure to comply. This is consistent with other situations where a judgment upon the merits can ensue for failure to comply with one of the Federal Rules.” 3B Moore’s Federal Practice (2d Ed.) 25-278, § 25.06[3],

Under Code Ann. § 81A-125 (a) (1), therefore, there is no dismissal until the entry of an order to that effect, and the dismissal is an adjudication on the merits. A dismissal under this section is different in both respects from dismissal under Code Ann. § 81A-141 (e), which is automatically obtained and does not operate as an adjudication on the merits. Kalin v. Pfarner, 124 Ga. App. 816 (186 SE2d 365).

However, if no notice of substitution is made within a period of 180 days after service of suggestion of death, and a defendant moves for a dismissal on this ground giving notice to the plaintiff (City of Cedartown v. Pickett, 194 Ga. 508, 512 (22 SE2d 318 )), and the trial judge after a hearing dismisses the petition under Code Ann. § 81A-141 without specifying that it is "without prejudice,” the dismissal would be a bar to any subsequent suit. See Cranford v. Carver, 124 Ga. App. 767 (186 SE2d 150).

Argued November 7, 1973 Decided March 6, 1974. Albert B. Wallace, William R. L. Latson, for appellant. Long, Weinberg, Ansley & Wheeler, Arnold Wright, Jr., for appellee.

But it should be noted that an order of dismissal for failure to make timely substitution need not necessarily be granted. Under the federal rule, "the court may extend the period for substitution if a request is made before the expiration of 90-day period. The court also may allow substitution on motion made after the expiration of the 90-day period on a showing that the failure to act earlier was the result of excusable neglect.” 7A Wright & Miller, 659, supra.

There being no order of dismissal in the previous action, the trial court was in error in its reasons for granting defendant’s motion for a judgment on the pleadings; however, a judgment right for any reason will be affirmed by the appellate courts (Hill v. Willis, 224 Ga. 263, 267 (161 SE2d 281)). Because the original suit is still pending, its pendency provides grounds for granting defendant’s motion and the trial court’s order so granting it, being right for this reason, will be affirmed. Af-firmance leaves the parties in the original suit to seek such belated substitution or dismissals as their interests may direct. The dismissal here (of the second suit) is, of course, without prejudice to the pending case and cannot be considered an adjudication on the merits.

Because we reach the result that the second suit must be dismissed, plaintiffs appeal from the denial of her motion to strike certain defenses in the second suit has been mooted and we need not consider it.

Judgment affirmed in part without prejudice to the rights of the parties in pending Case No. 5240, Henry County Superior Court.

Bell, C. J., Eberhardt, P. J., Quillian and Stolz, JJ., concur. Pannell, J., concurs in the judgment. Deen, Evans and Clark, JJ., dissent.

1 "If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representative of the deceased party and, together with the notice of the hearing, shall be served on the parties as provided in section 81A-105 and upon persons not parties in the manner provided in section 81A-104 for the service of a summons. Unless the motion for substitution is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.”