17 Ga. App. 756 | Ga. Ct. App. | 1916
1. A nonsuit does not extinguish a cause of action; neither does the death of a plaintiff in a pending suit; and where, after the personal representative of the plaintiff has been made a party to the suit in his stead, the case is nonsuited, the personal representative can, within the statutory period, recommence the suit. Civil Code, §§ 4381, 5598, 5942; Moody v. Threlkeld. 13 Ga. 55, 60; Hackney v. Asbury, 124 Ga. 678 (52 S. E. 886). See also Sewell v. Atkinson, 14 Ga. App. 386 (80 S. E. 862).
2. While the second suit must be for the same cause of action as the first suit, it need not be an exact copy of the same, nor necessarily brought against all the defendants who were parties in the dismissed suit, unless all were necessary parties to the first suit.
(a.) Where the first suit was brought against joint tort-feasors, each of whom was jointly suable but severally liable, it was not necessary that all the defendants should be parties to either the first or the second suit. In the first action any one of them could have been stricken by the plaintiff at any time over objection. Cox v. Strickland, 120 Ga. 104, 111 (47 S. E. 912, 1 Ann. Cas. 870); Western Union Tel. Co. v. Griffith, 111 Ga. 559 (36 S. E. 859).
4. Under the ruling of the Supreme Court in Griffin v. Russell, 144 Ga. 275 (87 S. E. 10), and authorities therein cited, the petition set forth a cause of action, and was not subject to general demurrer.
5. The other questions raised by the demurrer, not having been referred to in the brief of counsel for the plaintiff in error, are deemed abandoned, and therefore will not be considered. Judgment affirmed,.
cited: As to survival of cause of action: Smith v. Jones, 138 Ga. 716; Civil Code, § 4421; Sou. Bell Tel. Co. v. Cassin, 111 Ga. 575, 581; Frazier v. Ga. R. Co., 101 Ga. 77; Peebles v. C. & W. C. Ry. Co. 279, 282; Civil Code, § 4381; Cox v. Strickland, 120 Ga. 104, 109; Civil Code, § 5598; Melson v. Phenix Ins. Co., 97 Ga. 722; Floyd v. Boyd, 16 Ga. App. 43; Civil Code, § 5625; Brown v. G., C. & N. Ry., 101 Ga. 80, 83. No cause of action: Civil Code, § 3613; Lewis v. Amorous, 3 Ga. App. 50; Fielder v. Davison, 139 Ga. 512; McIntire v. Hartfielder & Garbutt Co., 9 Ga. App. 327.
cited: As to survival of cause of action: Civil Code, §§ 4381, 4421, 5598, 5617; Stephens v. Columbus R. Co., 134 Ga. 818; A., K. & N. Ry. Co. v. Wilson, 119 Ga. 782; Cox v. Strickland, 120 Ga. 104; Gordon v. McCalla, 73 Ga. 669; Rountree v. Key, 71 Ga. 214; Cox v. Berry, 13 Ga. 306; Moody v. Threlkeld, 13 Ga. 55. As to cause of action: Civil Code, § 4413; Gallagher v. Gunn, 16 Ga. App. 600; Kayser v. Van