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Plea in bar. Before Judge Moore. Fulton Superior Court. February 11, 1955.
In the present action the trial court erred in overruling the plaintiff's demurrer to the defendant's plea in bar, and all further proceedings were nugatory.
Mrs. Alma S. Burks brought an action in the Superior Court of Fulton County on August 8, 1951, against Mrs. Leonora L. Wheeler, West Peachtree Motors, Inc., and Ralph Greene for injuries and damages sustained by her on March 19, 1951, while riding as a passenger in an automobile being driven by Miss Wheeler, and owned by West Peachtree Motors, Inc. Greene was a salesman employed by the corporation. The defendants Greene, and West Peachtree Motors, Inc., filed to the petition general demurrers which were sustained by the trial court. The trial court's ruling on the general demurrers was reversed by this court in the case of Burks v. Green, 85 Ga. App. 327 (69 S. E. 2d 686). Upon the return of the remittitur to the trial court the case came on for hearing. After the plaintiff had presented her evidence the defendants made a motion for nonsuit which Was granted on January 15, 1953. Within six months, on July 14, 1953, the plaintiff again brought her suit against the same defendants as provided by Code 3-808. After the suit was filed but before the trial thereon, the plaintiff amended her petition by striking therefrom the defendants West Peachtree Motors, Inc., and Ralph Greene and also by striking all acts of negligence which were charged to these defendants in the original petition and in the renewed action as originally filed so as to leave the defendant Mrs. Wheeler as the sole defendant. The defendant Mrs. Wheeler filed her plea in bar in which she alleged that the plaintiff's action as amended was barred by the statute of limitations, Code 3-808 and 3-1004, in that the action as originally instituted was brought against her, Ralph Greene, and West Peachtree Motors, Inc.; that such action was nonsuited on January 15, 1953, and rebrought within six months from the date of the nonsuit, July 14, 1953, against all three defendants, but after the statute of limitations had run on the cause of action (Code 3-1004); and that, when the petition was amended by striking two of the defendants, necessary parties were omitted. To this plea in bar the plaintiff filed a general demurrer in which she alleged that no grounds were set forth in the plea showing why the statute of limitations applied to the present action. The trial court overruled the plaintiff's demurrer and when the plea in bar came on for hearing a verdict for the defendant's plea in bar was directed. The plaintiff filed a motion for new trial on the general grounds which was later amended so as to assign error on the rejection of certain evidence and on the direction of the verdict by the trial court. The motion for new trial was overruled and the plaintiff excepted. The plaintiff also excepted to the overruling of the demurrer to the defendant's plea in bar.
The defendant's plea in bar to the plaintiff's amended petition was predicated upon the ground that necessary parties to the action had been omitted when the plaintiff amended her petition by striking two of the defendants. Code 3-808 provides, "If a plaintiff shall be nonsuited, . . . and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case." It has been consistently held that the renewed action must be on the same cause of action and against the same essential parties. Cox v. Strickland, 120 Ga. 104 (47 S. E. 912, 1 Ann. Cas. 870); Sheldon & Co. v. Emory University, 184 Ga. 440 (1) (191 S. E. 497). The question here is whether or not the parties stricken by the plaintiff were essential parties to the action. The defendant in error relies heavily on this court's decision in Chapman v. Lamar-Rankin Drug Co., 64 Ga. App. 493 (13 S. E. 2d 734). Any conflict between this case and Stevens v. Wood, 17 Ga. App. 756 (88 S. E. 413) must yield to the older case. "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." Stevens v. Wood, supra; and see Cox v. Strickland, supra. This would be true even when the action was timely brought before the statute of limitations had run (Code 3-1004) and the parties were stricken more than two years after the alleged tort was alleged to have been committed. Therefore any of the defendants in the present action could have been stricken over objection during the renewed action. Accordingly, the trial court erred in overruling the plaintiff's demurrer to the defendant's plea in bar.
The above error rendered further proceedings nugatory, and the other assignments of error need not be considered.
Judgment reversed. Felton, C. J., and Quillian, J., concur.
Marvin G. Russell, Turner Paschall, contra.
Geo. Starr Peck, for plaintiff in error.
Saturday May 23 02:49 EDT

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