Laine v. Wright

586 F.2d 607, 1978 U.S. App. LEXIS 6988

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 15, 1978
• Docket: No. 78-2139
• Status: Published

Opinion

PER CURIAM:

The judgment of the district court dismissing the case of each of the appellants (consolidated here) is affirmed based upon the opinion of the district judge dated February 7, 1978 and that court’s order on reconsideration dated March 28, 1978. The pertinent parts of those orders (the court having also considered some contentions in another related case not before us) are attached hereto as an Appendix.

AFFIRMED.

APPENDIX

“UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION

MRS. JOHANNA S. LAINE v. EFFIE LOUISE WRIGHT

GRETE ANN LAINE v. EFFIE LOUISE WRIGHT

CIVIL ACTION FILE NUMBER C77-128R

CIVIL ACTION FILE NUMBER C77-129R

ORDER

These cases concern an automobile accident which occurred on September 7, 1973. Pending before the court is defendant’s motions to dismiss. No response was filed and the motions stand unopposed. Local Rule 91.2, Northern District of Georgia.

The complaints in these cases were filed on October 4, 1977, more than four years after the occurrence of the accident giving rise to this litigation. Civil Actions C77-128R and C77-129R are necessarily barred by the two year statute of limitations for personal injuries, Ga.Code Ann. § 3-1004, and the four year statute of limitations for injuries to personalty, Ga.Code Ann. § 3-1002. See, Leggett v. Benton Brothers, 138 Ga.App. 761, 227 S.E.2d 397 (1976); Sharpe v. Seaboard Coast Line Railroad Company, 528 F.2d 546 (5th Cir. 1976).

Accordingly, the motions to dismiss in Civil Actions C77-128R and C77-129R are GRANTED.....

This 7th day of February, 1978.

/s/ Harold L. Murphy_

UNITED STATES DISTRICT JUDGE

On February 7, 1978, the court entered an order granting the unopposed motions for summary judgment of the defendant in the above-styled cases. Pending before the court are plaintiffs’ motions for reconsideration.

Plaintiffs contend the provisions of Ga.Code Ann. § 3-808 protect them from a defense concerning the statute of limitations. It is clear, however, that this renewal statute is not applicable where the original suit was filed in federal court. Hudnall v. Kelley, 388 F.Supp. 1352, 1356 (N.D.Ga.1975). See also, Webb v. Southern Cotton Oil Co., 131 Ga. 682, 63 S.E. 135 (1908); The Constitution Publishing Company v. DeLaughter, 95 Ga. 17, 18, 21 S.E. 1000 (1894); Nevels v. Detroiter Mobile Homes, 124 Ga.App. 112, 183 S.E.2d 77 (1971).

Accordingly, the motion for reconsideration is DENIED.

SO ORDERED, this the 28th day of March, 1978.

/s/ Harold L. Murohv_

UNITED STATES DISTRICT JUDGE”