7 Ga. App. 279 | Ga. Ct. App. | 1910
John E. Dunnington brought suit against the Charleston & Western Carolina Railway Company to recover damages for the homicide of his son, Winfield S. Dunnington. An amendment to the petition was allowed, making Peebles, as administrator of John E. Dunnington, piartj'- plaintiff; in which amendment it was alleged that the party plaintiff died on the 12th day of June, 1908, at about 1.40 p. m.; and an amendment was also allowed correcting the entry of the filing of the petition from June 13, 1908, to June 12, 1908, it being alleged that the petition was actually lodged in the clerk’s office at about 4.30 or 5 o’clock in the afternoon on the 12th of June, 1908. The railway company demurred to the petition as amended, on the ground that it appears that John E. Dunnington had no suit pending at the time of his death that could be renewed by his administrator; that John E. Dunnington having died June 12, 1908, at 1.45 p. m., he could not sue this defendant by filing a petition at 4.30 p. m. of that day; that if the suit was filed through an attorney previously employed, at 4.30 p. m. June 12, 1908, such attorney was not authorized at that time to file suit, as his authority to do so ended with the death of John E. Dunnington on June 12, 1908, at 1.45 p. m. The court sustained the demurrer, and this is assigned as error.
If we consider the suit as commenced June 12, 1908, at 4.30 p. m., the time when the petition was alleged to have been lodged in the office of the clerk of the city court of Richmond county by Dunnington’s attorney, it follows that the suit was actually filed three hours after the death of the plaintiff, and that no suit was in existence at the time that the petition was filed; and no suit was pending against the railway company prior to the death of Dunnington which-his administrator could renew or to which he could be made a party. The question is fully settled by the Supreme Court in the case of Frazier v. Ga. R. Co., 101 Ga. 77 (28 S. E. 662), the first headnote of which is as follows: “Where a parent, entitled to bring an action of tort for the homicide of a son, dies without having in
Judgment affirmed.