150 Ga. 12 | Ga. | 1920
On May 25, 1914, George P. Howard filed suit in the superior court of Fulton county, Georgia, against E. T. Lamb as receiver of the Atlanta, Birmingham and Atlantic Kailroad Company, to recover a ‘ sum of money alleged to be the value of property delivered by him to the receiver in May, 1910, for transportation from Atlanta to Senoia, Georgia, which he claimed the receiver converted at Senoia, Georgia, by an unlawful delivery. In less than fifteen days the action would have been barred by the four-year statute of limitations. A general demurrer was interposed • by the defendant, on the ground that the superior court of Fulton county, Georgia, had no jurisdiction of the case, for the reason that the conversion complained of took place, if at all, in Coweta county, and not in Fulton county. The court, upon argument, sustained the general demurrer, but allowed the plaintiff ten days in which to amend. The plaintiff did amend by alleging that his suit was for breach of contract, and not for the conversion. The defendant renewed his demurrer, which was overruled, and the amendment was allowed. Exceptions were filed by the defendant, and upon hearing the case the Supreme Court held that the action was ex delicto, and could not be changed by amendment, into an action ex contractu; that the superior court of Fulton county did not have jurisdiction of the suit, and that the court erred in not sustaining the general
On March 24, 1917 seven years after the cause of action is said to have originated, George P. Howard filed his suit in the Coweta superior court, seeking to recover for the same alleged conversion. In his petition he alleges that he had previously brought suit against the defendant in the superior court of Fulton county, that he voluntarily dismissed said suit on the sixth day of November, 1916, and that he brings the present suit within six months as a renewal of the original suit. To this new suit the defendant demurred, on the grounds: that it set out no cause of action; that it was barred by the statute of limitations; that it did not appear that the prior suit was such a suit as would have tolled the statute of limitations; that the prior suit was filed in the superior court of Fulton county, Georgia, to recover for a conversion alleged to have taken place in Coweta county, Georgia; that the superior court of Fulton county had no jurisdiction of the prior suit, that any judgment rendered therein would have been utterly void, and that a renewal suit can not be brought within six months when the court in which the first suit was filed was without jurisdiction; and that the suit in the superior court of Fulton county, Georgia, was not such a case as the plaintiff could dismiss and recommence within six months. The court, after argument, overruled this demurrer; whereupon the defendant excepted and brought the question to the Court of Appeals for review.
It is declared in section 2798 of the Civil Code, relating to the venue of suits against railroads and electric companies, that all railroad companies shall be sued in the county in which the cause of action originated, by any one whose person or property has been injured by such railroad company, its officers, agents or employees, for the purpose of recovering damages for such injuries; and that any judgment rendered in any other county than the one in which the cause so originated shall be utterly void. And it is contended by counsel. for the plaintiff in error, that, as in the proceedings against the railroad company in the suit brought in Fulton county any judgment rendered there would have been utterly void, the entire proceedings were a nullity and could not operate to toll the statute so as to prevent a bar of the statute,