This is an appeal from an order and final judgment dismissing an action in the Superior Court of DeKalb County seeking review of an administrative determination by the State Personnel Board regarding the termination of employment of the plaintiff-appellant.
Appellant, Dr. Charles Keramidas, had his employment terminated by his superiors at the Georgia Retardation Center in DeKalb County, Georgia. He appealed his dismissal administratively to the State Personnel Board. From an adverse decision by the board on December 14, 1976, he sought legal review in the Superior Court of Fulton County, Georgia, under provisions of "the Administrative Procedure Act, 3A Ga. Code Ann. § 101 et seq____” He filed his action on January 11,1977 and voluntarily dismissed it on January 16,1977 and filed a similar petition in the DeKalb Superior Court on the same date.
The second action filed in DeKalb County was brought under the provisions of Code Ann. § 40-2207.1 (h) and (i) (Ga. L. 1976, pp. 1547,1550). This section requires an appeal be brought within 30 days "in the superior court of the county of the place of employment of the employee.”
The appellee filed a motion to dismiss, alleging the time for filing an appeal had expired on January 13,1978. The trial court granted the motion. Appellant brings this appeal. Held:
Appellant’s complaint was filed in the Fulton County Superior Court within the requisite 30 days, but five days thereafter he voluntarily dismissed and refiled on the *821 same day in the Superior Court of DeKalb County. Was the second action timely filed? We find that it was and reverse.
Code Ann. § 3-808 (Code § 3-808, as amended through Ga. L. 1967, pp. 226, 244) provides that "[i]f a plaintiff 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 ...” This is a remedial statute and is to be liberally construed, where the first suit is disposed of on grounds not affecting the merits of the case.
Mitchell County v. Dixon,
The voluntary dismissal in Fulton County was without prejudice (CPA § 41 (a); Code Ann. § 81A-141 (a); Ga. L. 1966, pp. 609, 653), and was not an adjudication on the merits (5 Moore’s Federal Practice 41-75, ¶ 41.05 [2]). However, "[t]he privilege of dismissal and renewal under Code § 3-808 does not apply to void cases, but does apply to allow renewal where the previous action was merely voidable.”
U. S. Cas. Co. v. American Oil Co.,
1. We will address the issue of venue first. The Supreme Court held that one of the predecessors to the current Code Ann. § 3-808 — Civil Code § 3786 (Code of 1895), "in granting the right to renew within six months, forms an exception to the statute of limitations, and has no reference to the subject of venue. The new action may be brought 'in any county having jurisdiction thereof in this State.’
” Cox v. Strickland,
2. Our Supreme Court examined this issue in depth in
Zeagler v. Zeagler,
The Supreme Court reexamined this issue in
Hopkins v. Hopkins,
Applying this law to the facts of this case we find that although the first action was filed within the requisite 30 days, it was incorrectly filed under the authority of "the Administrative Procedure Act, 3A Ga. Code Ann. § 101
et
seq....” The provisions of Code Ann. § 3A:102 (a) (Ga. L. 1964, p. 338; as amended through 1975, pp. 404, 407) excepts "... the State Personnel Board (Merit System)...” from this Act. See also
Dept. of Corrections v. Hemphill,
Stated in the abstract, as suggested by
Zeagler,
the first action was an appeal from an adverse determination by the State Personnel Board. Jurisdiction to hear that class of appeals is conferred by law (Code Ann. § 40-2207.1 (h)) on the superior courts of this state. The deficiency of the first pleadings, citing the Administrative Procedure Act, rather than Code Ann. § 40-2207.1, would not void the entire action because the "subject-matter” of the action belonged to the general class of cases in which jurisdiction was in the superior courts.
Zeagler v. Zeagler,
As the Fulton County Superior Court had jurisdiction of the "subject-matter” of the suit, Code § 3-808 was applicable and would toll the running of the period of limitation.
Cutliffe v. Pryse,
3. Inasmuch as the Fulton County Superior Court had jurisdiction of the genéral subject-matter of this appeal from the State Personnel Board under Code Ann. § 40-2207.1 (h), but lacked only venue, and the first action was filed within the requisite 30 days, and the purpose of Code § 3-808 is remedial and is to be given a broad interpretation, and the voluntary dismissal by plaintiff in Fulton County was not an adjudication on the merits, the plaintiff was authorized to refile his action in another county having venue — within the period of which the statute was tolled by Code § 3-808.
Judgment reversed.