McMurria v. Scaife

92 S.E. 544, 20 Ga. App. 101, 1917 Ga. App. LEXIS 738

Opinion

Bboyees, P. J.

1. If the point be raised by timely special- demurrer, the plaintiff who relies on the privilege of renewal under the Civil Code (1910), § 4381, to escape the bar of the statute of limitations, may be required to attach to his petition a copy of the- petition in the first suit, so that the court may determine, as a matter of law, whether the two suits were for the same cause of action and between the same parties, and whether the first suit was brought before the bar had attached, and in a court having jurisdiction of the subjec.t-matter. Atlanta, Knoxville & Northern Ry. Co. v. Wilson, 119 Ga. 781 (47 S. E. 366).

2. In this case the court erred in not sustaining 'the special demurrer, which raised the point that a copy of the petition in the first suit was not attached to the petition in the present suit.

3. The error in the judgment upon the demurrer rendered the further proceedings in the case nugatory, and the other rulings complained of will not he considered.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.