Johnny Bruce Fricks v. Margaret Mae Smalley Carroll and James L. Carroll

Fifth Circuit

Johnny Bruce Fricks v. Margaret Mae Smalley Carroll and James L. Carroll

368 F.2d 329, 1966 U.S. App. LEXIS 4842

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 3, 1966

Docket23393

StatusPublished

Cited by6 cases

This text of 368 F.2d 329 (Johnny Bruce Fricks v. Margaret Mae Smalley Carroll and James L. Carroll) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnny Bruce Fricks v. Margaret Mae Smalley Carroll and James L. Carroll, 368 F.2d 329, 1966 U.S. App. LEXIS 4842 (5th Cir. 1966).

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Opinion

PER CURIAM:

Appellant, a resident of Georgia, sued appellees, residents of Alabama, claiming damages for personal injuries sustained in an automobile accident which occurred in Georgia. The District Court dismissed the action on the basis that it affirmatively appeared from the complaint that it was barred by the Alabama statute of limitations of one year. Code of Ala., Tit. 7, § 26. This ruling was *330 proper. The Alabama statute of limitations was applicable rather than the two year Georgia statute of limitations. Guaranty Trust Company of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231; Wells v. Simonds Abrasive Company, 1953, 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211; 2 Moore’s Federal Practice, pp. 740, 743-746; 1 Barron and Holtzoff, Federal Practice and Procedure, pp. 590-604.

The judgment of the District Court should, however, be modified to provide that the complaint rather than the action be dismissed. This will avoid any res judicata problem, and the judgment is vacated and the case remanded so that the judgment may be modified accordingly.

Affirmed in part; vacated and remanded with direction.

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PER CURIAM:

Appellant, a resident of Georgia, sued appellees, residents of Alabama, claiming damages for personal injuries sustained in an automobile accident which occurred in Georgia. The District Court dismissed the action on the basis that it affirmatively appeared from the complaint that it was barred by the Alabama statute of limitations of one year. Code of Ala., Tit. 7, § 26. This ruling was *330 proper. The Alabama statute of limitations was applicable rather than the two year Georgia statute of limitations. Guaranty Trust Company of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231; Wells v. Simonds Abrasive Company, 1953, 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211; 2 Moore’s Federal Practice, pp. 740, 743-746; 1 Barron and Holtzoff, Federal Practice and Procedure, pp. 590-604.

The judgment of the District Court should, however, be modified to provide that the complaint rather than the action be dismissed. This will avoid any res judicata problem, and the judgment is vacated and the case remanded so that the judgment may be modified accordingly.

Affirmed in part; vacated and remanded with direction.

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368 F.2d 329, 1966 U.S. App. LEXIS 4842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnny-bruce-fricks-v-margaret-mae-smalley-carroll-and-james-l-carroll-ca5-1966.

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