71 Ga. 214 | Ga. | 1883
The sole question made in this record is this: When a case is dismissed by the court for want of prosecution by the plaintiff, is it a discontinuance of the case by the plaintiff, so as to allow him to renew the action within six months? “A discontinuance,” according to Blackstone,
So in 1 Bouvier’s Law Dictionary, p. 481, under the head of “Discontinuance in pleading and in practice,” the same definition is given, and Blackstone, among other authorities, such as Oomyn’s Digest, “Pleader,” and Bacon’s Abridgment “Plea,” p. 5, and several reported cases, is cited.
So that it would seem that a discontinuance is where the plaintiff fails to follow up his case and leaves a chasm in the proceedings by his laches. There the defendant need attend no longer with counter pleadings, but would be entitled to have the case discontinued, and the only question seems to have been one of costs, which was determined on the facts of each case.
Where the common law rule of strict pleadings prevails, or did prevail, action was taken by the court at the instance of the other party because of the chasm left in the cause by his adversary failing to reply or rejoin or surrejoin, or do any other act necessary to follow up his case because thereby he had discontinued it.
It would seem that in this state, where no such strict links of pleading are necessary to make the chain at the end of which issue is joined, a failure to appear and prosecute, and thus follow up his case, or continue to prosecute, would operate as a discontinuance by the plaintiff's action, and the court might order that it be discontinued at the motion of the defendant, or do what is the same thing under our practice, in effect and substance,—dismiss the plaintiff’s suit for want of prosecution.
Nor does that case conflict at all with this. There, there was judgment on demurrer, because “ the allegations in the petition do not make a case upon which plaintiffs can recover”; here is a mere failure to prosecute or continue to follow up suit. In that case, the judgment of dismissal-on demurrer to the merits is just as effectual res judicata as a judgment oh a verdict. In the one case the jury finds facts, and the law is applied to the facts so found; in the other, the facts are admitted by the demurrer, and the law is applied. So that the case in the 56th could no more be renewed than after verdict and judgment thereon; in this case it can, not having been at all adjudicated on the
An examination of the rulings of this court on the act of .1847, substantially re-enacted on this point by the act of 1856—acts of 1856, p. 237—convinces us that this court
Upon principle and authority, therefore, we feel constrained to reverse the judgment, and hold that the case was not barred, and the grant of the non-suit therefore erroneous.
Judgment reversed.