Webb v. Southern Cotton Oil Co.

63 S.E. 135, 131 Ga. 682, 1908 Ga. LEXIS 178

• Court: Supreme Court of Georgia
• Decided: December 15, 1908
• Status: Published

Opinion

Eish, C. J.

1. A suit brought in a court of this State and properly removed by the defendant to the Federal court having concurrent jurisdiction thereof, and there dismissed on plaintiff’s motion, can not, under Civil Code, § 3786, be renewed' in a State fcourt, within six months of such dismissal, so as to avoid the bar of the statute of limitations. Cox v. East Tennessee etc. R. Co., 68 Ga. 446. See also Constitution Publishing Co. v. DeLaughter, 95 Ga. 17 (21 S. E. 1000) ; Cox v. Strickland, 120 Ga. 104 (47 S. E. 912).

2. In Cox v. East Tennessee etc. R. Co., 68 Ga. 446, it was held that where a case had been removed from a State court to a Federal court, and, after the time prescribed by the statute of limitations as applicable to the cause of action had elapsed, a nonsuit was granted in the latter court, the case could not be rebrought in the State court within six months so as to avoid- the. bar of the statute. As applied to such a ease, that decision, upon review, is affirmed. McIver v. Florida Central etc. R. Co., 110 Ga. 223 (36 S. E. 775, 65 L. R. A) 437).

3. Section 3786 of the Civil Code provides : “If a plaintiff shall be non-suited, or shall discontinue or dismiss his casé, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original ease; but this privilege of dismissal and renewal shall be exercised only once under this clause.” This section is a codification of the acts of 1847 (Cobb’s Dig. 569) and 1856 (Acts 1855-6, p.237). Constitution Publishing Co. v. Delaughter, supra.

4. The provisions of the Civil Code, § 3786, apply only to cases pending in the State courts, as the act of 1847 (Acts 1847, p. 569) declares: “That whenever any ease now or hereafter pending in any of the courts of this state . . shall be discontinued, dismissed,” etc., the plaintiff may renew the same within six months; Code section 3786 is a codification of this act of 1847 and of the 33d section of the act of 1856 (Cobb’s Dig. 237). Constitution Publishing Co. v. DeLaughter, supra.

Argued July 23, Decided December 15, 1908.

Action for damages. Before Judge Lewis. Greene superior court. December 2, 1907.

James Davison and Samuel H. Sibley, for plaintiff. Ronald Ransom and Evins & Spence, contra.

5. In view of the foregoing, the court did not err in dismissing the petition on general demurrer.

Judgment affirmed.

All the Justiees eoneur.