Stinson v. Beanan

166 Ga. 752 | Ga. | 1928

Atkinson, J.

1. “ Where a suit has been dismissed by the plaintiff, in order to bring a second suit for the same cause of action the plaintiff must pay the costs or file a pauper’s affidavit showing inability to do so. A failure in this regard furnishes ground for a plea in abatement.” Frommel v. Cox, 158 Ca. 310 (2b) (123 S. E. 296); Collins v. Burkhalter, 144 Ga. 695 (2) (87 S. E. 888); White v. Bryant, 136 Ga. 423 (71 S. E. 677); Civil Code (1910), §§ 5625, 5626. After a plea in abatement has been filed to the second suit on the ground of failure to pay the costs incurred in the first suit, a subsequent offer to pay the costs will not prevent a dismissal. Wright v. Jett, 120 Ga. 995 (48 S. E. 345). The decisions of this court cited above related to cases in which the suits which were dismissed were valid suits pending in the courts. In this case it is contended that there was no valid suit pending in the court, within the meaning of the statute, because no process was issued and no process was served.

2. Under the former rulings of this court, where a petition setting out a cause of action has been filed and followed up by the issuance of process and service as provided by law, the filing of the petition and service of the process will constitute a valid suit from the date of the filing of the petition; but if no process is issued within the time required by law, and there is no waiver of process, a valid suit will not arise by reason of the filing of the petition. Nicholas v. British America Assurance Co., 109 Ga. 621 (34 S. E. 1004), and cit.; McFarland v. McFarland, 151 Ga. 9 (105 S. E. 596), and cit.; Florida Central &c. R. Co., v. Ragan, 104 Ga. 353 (30 S. E. 745).

3. Under application of the principle last stated, if a petition setting out a cause of action for injunction, receiver, and general relief is presented to the judge of the superior court, upon which he enters his sanction and issues a rule nisi, and afterwards the petition is filed in the office of the clerk of the superior court, and the clerk fails to issue a process as required by law, and the sheriff proceeds to serve the petition and rule nisi upon the defendant, without any process, such filing and service of the petition will not constitute a valid pending suit within the meaning of the Civil Code (1910), §§ 5625, 5626, and render it necessary for the plaintiff, after having dismissed his case on account of the failure of the officers to issue and serve process as required by law, to pay the costs as a condition precedent to filing another petition against the same parties upon the same cause of action. The above sections of the Code are not designed to penalize a plaintiff and enrich the officers of court for failure of the latter to perform their duties.

4. It was erroneous for the judge to sustain the plea in abatement and to dismiss the petition.

Judgment reversed.

All the Justices concur.