52 Ga. App. 118 | Ga. Ct. App. | 1935
The petition of an administrator, suing in behalf of a dependent brother of the decedent, for an alleged tortious homicide, under the provisions now embodied in the Code of 1933, § 105-1309, was filed on November 3, 1932, on account of an injury alleged to have occurred on January 17, 1930, more than two years prior to the filing of the petition. The petition alleged that the estate was not represented until the plaintiff was appointed administrator on January 6, 1932. The plaintiff’s contentions were that the action was one for an injury to a property right, with a limitation of four years; and further that if the action, were to be construed as for an injury to the person, with a limitation of only two years, the action was not barred, for the reason that under the provisions of the Code, § 3-803, the statute had been tolled during the period subsequent to the accident up to the time of the appointment and qualification of the administrator. The court sustained a demurrer to the petition on the ground that it showed that “the suit was barred by the statute of limitations;” holding that the cause of action accrued at the death of the decedent, and that the statute ran against the administrator from the date of the death, with the result that the action was barred by the lapse of more than two years between that date and the date of the filing of the petition. When this case was first before this court (48 Ga. App. 389, 172 S. E. 921), only the first contention was dealt with. It was in effect held, that, just as the provisions of Code, §§ 105-1302-105-1308 created and established a new per
1. The amendment to the constitution establishing the Court of Appeals, ratified in 1916, provides that “it shall also be competent for the Supreme Court to require, by certiorari or otherwise, any case to be certified to the Supreme Court from the Court of Appeals for review and determination with the same power and authority as if the case had been carried by writ of error to the Supreme Court.” Code, § 2-3005. In Gulf Paving Co. v. Atlanta, 149 Ga. 114 (99 S. E. 374), the Supreme Court in construing this provision declared its own jurisdiction to rule on any assignment of error made by the bill of exceptions to the Court of Appeals, with the right and power to dispose of all questions arising in the record of this court. The Supreme Court, however, while thus declaring its jurisdiction to pass on any question raised by the record of this court in any case certioraried from it to the Supreme Court, did not adjudicate that it was its duty so to do, and subsequently, on January 1, 1923, adopted a rule of court, which provides that, “in considering the question of the grant of the petition for certiorari, and, if granted, in disposing of the case, this court will only consider the questions raised in such petition.” Rule 45, Code, § 24-4549, 153 Ga. 890. See Mitchell v. Owen; 159 Ga. 690 (5), 701 (127 S. E. 122). In the instant case, the Court of Appeals originally held that the four-year period of limitation obtained. The Supreme Court on certiorari reversed this ruling, and held that the two-year period applied. In making this ruling, the Supreme Court held as follows: “An action for damages for a homicide, instituted by an administrator of the deceased, under the Code of 1910„ §§ 4424, 4425, as amended by sections 1 and 2 of the act approved August 18, 1924 (Ga. L. 1924, p. 60), to recover for the benefit of a dependent brother of the deceased, is an action for injury done to the person, and must be brought within two years from the time of the injury.” It is argued with great earnestness by counsel for defendant that this ruling is conclusive of the question that the action must be brought “within two years from the time of the injury,” irrespective of the statutory rule as to the tolling of the statute contained in the Code, § 3-803, invoked by plaintiff in the trial court and before
It is urged by counsel for the defendant that his interpretation of the decision by the Supreme Court is fortified by the fact that the Supreme Court in its opinion brings out the facts that the petition alleged that “the homicide occurred in the operation of an automobile on the evening of January 17, 1930,” that “the estate of . . deceased was not represented until the petitioner’s appointment as administrator on January 6, 1932,” and that the petition was filed on November 3, 1932. It is stated in his brief, that, in the application for certiorari from the judgment of this court, the applicant, who was the defendant in the trial court, alleged in his petition for certiorari that “the decision of the Court of Appeals, reversing the decision of city court of Decatur, DeKalb County, Georgia, is erroneous for the following reasons: . . In ruling that it was unnecessary to determine if the provisions of Code section 4376 [Code of 1933, § 3-803] were applicable to this suit, for the reason that this question is raised by respondent; and if this court holds that the suit is one for a personal injury, this question must necessarily be decided, to determine whether or not the action of the city court of Decatur was proper in sustaining the general demurrer and dismissing the case, for the reason that the suit showed a lapse of two years and eleven months between the date of the homicide and the date of the filing of the suit.” Counsel for defendant therefore .urge, that, notwithstanding the opinion of the Supreme Court shows on its face that the court was cognizant of this lapse of time between the date of the homicide and the date of appointment of an administrator, the court nevertheless held that the suit would have to be filed “within two years from the time of the injury;” and that, too, in a case where the petition for certiorari had specifically based one of its assignments of error on the ground that the Court of Appeals had erred in holding it unnecessary to determine whether or not the statute was tolled during the period between the homicide and the appoint
Undoubtedly there is much force in these contention's. However, assuming that this court could properly examine counsel’s petition for certiorari, as a part of the Supreme Court record, in order to determine the scope of its decision, the assignment of error in that petition, as embodied in the briefs of counsel, went merely to the effect that this court erred in ruling that, in view of our decision as to the period of limitation, it was unnecessary to pass on the question as to the tolling of the statute. If we had been correct in holding that the four-year -period was applicable, it was manifestly true that we would have been correct in holding that it was unnecessary to determine whether the several months period in excess of the two years should be deducted on account of the tolling of the statute. If, however, we had properly ruled, as the Supreme Court subsequently did, that the period of limitation was two years, it would then have been equally manifest that it was necessary for us to have passed on the question as to the tolling of the statute. This in substance, as we understand it, is all that the assignment of error in the petition for certiorari means. The assignment does not, and could not, complain of any erroneous ruling on the question itself, but merely complains of the failure to make any ruling thereon. If the Supreme Court had specifically dealt, which it did not, with the assignment of error on the failure of this- court to rule on the question of the tolling of the statute, and if it had sustained the assignment as made, it would have done nothing more than hold that this court, in view of our erroneous
2. We turn now, from the contention made here by the defendant that the decision of the Supreme Court adjudicated not only the period of limitation, but also the question as to the tolling of the statute, to the only controversy now remaining, which constitutes the only contention made to this court by the plaintiff. This sole contention is that the two-year limitation provided by the Code, § 3-1004, was by virtue of the provisions of § 3-803, tolled by the time elapsing between the death of the deceased and the appointment of an administrator. Although statutes of limitation may in times past have been regarded as a somewhat technical and questionable defense, the attitude of the .courts has long since been to view such statutes, not with disfavor, but with encouragement. As was said in McWhorter v. Cheney, 121 Ga. 541, 547 (49 S. E. 603), “The statute of limitations is a statute of repose.” Every citizen is interested in the policy of repose which prevents the enforcement of stale demands. The authorities seem to recognize the general rule that in the construction of statutes of limitation general words are to have a general operation, and the courts will not be authorized to engraft thereon exceptions or qualifications not clearly provided for. Adams v. Davis, 47 Ga. 339; Moore v. Moore, 103 Ga. 517 (30 S. E. 535); 37 C. J. 689-691, § 9. There is ample authority for the proposition that in a suit such as the instant one, brought by the administrator for the benefit of designated relatives of a deceased, the recovery does not become a part of the estate of the deceased, that the administrator in bringing the
It would seem that no injustice would result by the rule here adopted; for, as was said by Justice Gilbert in Seaboard Air-Line Ry. Co. v. Brooks, supra, “representation of the estate may be had at any time upon the application of the beneficiaries;” and the defendant ‘“owes no duty to move for such appointment.” The ruling in that case, while planted partly on the ground that
Judgment affirmed.