33 S.E.2d 41 | Ga. Ct. App. | 1945
The court properly sustained the special demurrer to the petition, and did not err in then dismissing the action on oral motion.
The Code, § 3-508, provides that "a nonsuit, dismission, or discontinuance is negative, and the plaintiff may recommence his suit *64
on the payment of costs." § 3-808 provides: "If a plaintiff shall be nonsuited, or shall discontinue, or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this section." This section (3-808) has reference to the tolling of the statute and applies only where there has been a valid pending suit. Southern Flour Grain Co. v.Simmons,
It is true that a plaintiff may dismiss and refile his suit any number of times, after the dismissal of the first one, without paying *66
the costs in that case, so long as the action is not barred by the statute of limitations, and the only penalty he will suffer each time will be a dismissal of his suit. But where the statute has expired, as it had in the present case, before the filing of the last suit, the plaintiff has not the right to renew his case by paying the costs at or before the time of filing the same, unless the statute has been tolled by a valid pending suit, which has been dismissed. Furthermore, it does not appear from the petition how the two former suits were dismissed; and the petition is to be construed most strongly against the plaintiff. If the first suit was dismissed on demurrer, the plaintiff would have had no right to renew it, and the same would be true as to the second suit. See Ternest v. Georgia Coast c. R. Co.,
Judgment affirmed. Felton and Parker, JJ., concur.