Sparks v. Sparks

186 S.E.2d 780, 125 Ga. App. 198, 1971 Ga. App. LEXIS 779

• Court: Court of Appeals of Georgia
• Decided: November 23, 1971
• Docket: 46442
• Status: Published

Opinions

Per curiam.

This case, an action to enforce the payment of promissory notes, comes here from Houston Superior Court on appeal from the grant of a summary judgment for the plaintiff following the refusal of the trial judge to sustain a motion to dismiss based on the premise that the plaintiff commenced the action in Houston Superior Court while the same action against the same defendant, which the defendant had answered, was pending in Jones Superior Court. After commencing this action the plaintiff dismissed the action in Jones Superior Court and paid the costs. The foregoing facts are undisputed. Held:

1. The motion of the plaintiff to dismiss the appeal before this court is denied.

The dissent is correct in pointing out that the motion to dismiss is based on the failure of the appellant to include a statement of jurisidiction as required by our rules and a failure to make specific reference in the brief to support the enumerated error. The dissent further correctly states that the wording of these rules indicates that they are of a mandatory nature. However, under the many decisions of this court interpreting these rules we have not construed them to be of such a mandatory nature as will support a motion to dismiss.

In Myers v. Johnson, 113 Ga. App. 648 (149 SE2d 378), we said that a failure to include a jurisdiction statement required by Rule 13 (c) does not deprive the court of jurisdiction and that such statement can be added by amendment.

In Kitchens v. Hall, 116 Ga. App. 41 (156 SE2d 920), we said that although Rule 13 (c) requires a statement of jurisdiction, failure to do so will not result in a dismissal.

In Byrd v. Moore Ford Co., 116 Ga. App. 292 (157 SE2d 41), we again said that the failure of the appellant to include the statement required by Rule 13 (c) affords no basis for dismissal.

In Rainey v. Housing Authority of City of Atlanta, 114 Ga. App. 333 (151 SE2d 534), we again said that failure to include the jurisdictional statement is not a ground for dismissal. It was also said in this case that where the entire record is 18 pages the failure of appellant to point out the pages in the record will not constitute an abandonment of the enumeration under the rules of this court.

In American Liberty Ins. Co. v. Sanders, 120 Ga. App. 1 (169 SE2d 342), we said that while there should have been compliance with our rule requiring pagination, failure to do so will not preclude our consideration where the inconvenience occasioned is insubstantial.

In Satcher v. James H. Drew Shows, Inc., 122 Ga. App. 548 (177 SE2d 846), there was a motion to dismiss based on failure to specify pages of the record, Rule 18 (c). We held the motion to be without merit since the appeal was from the dismissal of a petition and "is easily found in the record.” See also Jenkins v. Raiford, 117 Ga. App. 658 (1) (161 SE2d 405); Wooten v. State of Ga., 118 Ga. App. 366 (1a) (163 SE2d 870).

See Judge Pannell’s dissent in Cohen v. Garland, 119 Ga. App. 333, 340 (167 SE2d 599), for a collection of cases holding that failure to meet the pagination rule will result in an abandonment of the enumeration of error. In such cases the result would be an affirmance and not a dismissal.

Based on the cases cited above we therefore conclude that the motion to dismiss in this case was without merit especially in view of the very brief record involved.

2. The pending action in Jones Superior Court afforded the defendant good cause for abatement when the plaintiff commenced the same action against the same defendant in Houston Superior Court. Code §3-601. But could the plaintiff preserve the second action by thereafter voluntarily dismissing the action in Jones Superior Court and paying the costs? We think not. The defendant relies on Code Ann. § 3-508, as amended, which purports to recognize that after voluntarily dismissing, the plaintiff may recommence only upon payment of costs. Additionally, subsection d of CPA § 41 requires that to commence "an action based upon or including the same claim against the same defendant the plaintiff shall first pay the court costs of the action previously dismissed.” (Emphasis supplied). In applying the antecedents in this state of the present statutes the requirement that the costs of the first action must be paid before the plaintiff has any right to commence a second action is treated as an absolute condition precedent. In 1904, in an opinion in which all the justices concurred, the Supreme Court stated: "The evident intent of our statute is to prevent the harassing renewal of a suit which the plaintiff has, after calling upon the defendant to appear in court and defend it, elected to dismiss for some reason, good or otherwise. And the condition imposed upon him as to the payment of costs, before renewing his action, is in the nature of a penalty for not being ready and willing to press his original suit to a hearing on its merits. The expense incurred in bringing the dismissed action is thus thrown upon the plaintiff, and the costs thereof can not be recovered by him from the defendant, even though the former may, upon a final determination of his second suit, prevail in the cause. In other words, a plaintiff may arbitrarily and over the protest of the defendant dismiss a suit, his reasons for dismissing it can not be inquired into by the court; but he must in any event pay for this privilege, and can not, without first making payment of the costs of that suit, exercise his conditional statutory right to renew it.” Wright v. Jett, 120 Ga. 995, 1001 (48 SE 345).

Argued September 13, 1971 Decided November 23, 1971 Rehearing denied December 14, 1971. Joel A. Willis, Jr., for appellant. Adams, O’Neal & Hemingway, Thomas W. Talbot, for appellee.

In our opinion the present law reflects a clear intent to continue the previous practice, and under the undisputed facts the trial judge erred in refusing to dismiss the second action. See O’Kelley v. Alexander, 225 Ga. 32 (165 SE2d 648) and Kalin v. Pfarner, 124 Ga. App. 816, however, for the effect of such a dismissal.

3. The action being subject to dismissal on motion as duly made, the trial judge erred in granting summary judgment-for the plaintiff.

Judgment reversed.

Bell, C. J., Eberhardt and Quillian, JJ., concur. Jordan, P. J., Hall, P. J., and Deen, J., concur specially. Pannell, J., concurs in the judgment only. Evans, J., dissents. Whitman, J., not participating because of illness.