13 S.E.2d 734 | Ga. Ct. App. | 1941
1. If it affirmatively appears that if the judgment were reversed the plaintiff in error would receive some benefit, the writ of error will not be dismissed on the ground that the question raised by the bill of exceptions is moot.
2. Here the judge sustained the defendant's demurrer to the petition, and overruled the plaintiff's demurrer to the plea of the statute of limitations. The plaintiff excepted only to the sustaining of the demurrer to her petition; and the overruling of her demurrer to the defendant's plea, being unexcepted to, was a solemn adjudication that the plea was good if proved, and became the law of the case so far as the sufficiency of the plea as against the demurrer is concerned; but still, if the judgment were reversed, the plaintiff, as to the proceeding on the trial of the plea, would be entitled to introduce evidence, and if such evidence defeated the plea, could then proceed to the trial of the issues involved under the petition and answer. Thus the plaintiff would receive a benefit by a reversal; and the motion to dismiss the writ of error is overruled.
3. In determining whether or not a party to the first suit is a necessary party in the second suit which is a renewal of the first, under the Code, § 3-808. "If they were parties to a joint contract, or entitled to rights one against another by way of contribution in the event the plaintiff recovered, then they or their personal representatives must all be parties to the second suit." In the instant case the plaintiff in the first suit elected to sue the defendants jointly; and if the plaintiff had recovered against them as alleged in the petition, the defendants would have been entitled to contribution. Hence, when such a suit against joint tortfeasors was instituted, and a subsequent suit was instituted against one who it was alleged was one of the defendants formerly sued, the latter action, although commenced within six months from the dismissal of the former suit, will not prevent the bar of the statute of limitations from attaching to the cause of action, under the Code, § 3-808. The judge properly dismissed the action on demurrer, it appearing from the face of the petition that the cause of action was barred by the statute of limitations.
It is the rule that "This court will in no case undertake to pass upon questions presented by a bill of exceptions, when it affirmatively appears that, even if the judgment of the court below were reversed, the plaintiff in error would derive no benefit from the adjudication." Davis v. Jasper,
According to the brief for the plaintiff, the only point involved is whether or not T. C. Barnett was a necessary party to the instant case. If he was, the case was properly dismissed on demurrer, the petition showing on its face that it was barred by the statute of limitations. The Code, § 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." With reference to nonsuits and dismissals and recommencement of the plaintiff's suit under this section the Supreme Court has said: "If the cause of action is the same in both cases; if by the same party or his legal representative, and against a person from whom relief was prayed in the first suit, the second action may be renewed. Of course the substantial rights of the plaintiff, or liability of the defendant to him or to one another, can not be enlarged beyond that indicated by the pleadings in the first case. But to the second only those parties are needed who are necessary to enforce and preserve the rights of the respective litigants existing at the time the running of the statute was interrupted by the filing of the first suit. The second suit must be for substantially *496
the same cause of action, though it need not be a literal copy of the petition dismissed. Hudgins v.Crow,
In the instant case the defendants were jointly and severally liable *497
for the alleged tort; and although at common law no right of contribution existed between joint tort-feasors, yet by legislative enactment this common-law rule has been changed, and now, "Under the provisions of sections 4588 and 5971 of the Civil Code (1910) [Code of 1933, §§ 37-303, 39-608], the right of contribution extends equally to actions ex contractu and actions ex delicto `where all are equally bound to bear the common burden, and one has paid more than his share.'" Southern Ry. Co. v. Rome,
Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.