Haas v. Blake
Haas v. Blake
Opinion of the Court
Haas, the appellant, filed an action against Blake et al., the appellees, in the Superior Court of Fulton County two days before the expiration of the applicable statute of limitation. It is not disputed that service of process, as to the Fulton County action, was never made upon appellees. Within six months of the filing of the Fulton County suit, appellant filed an identical action in the
Code Ann. § 3-808 provides: "If a plaintiff shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case...” However, in Cutliffe v. Pryse, 187 Ga. 51, 53-54 (200 SE 124), it was stated that Code Ann. § 3-808 ". . .does not apply to void suits. [Cits.] It will apply to suits that are voidable — not wholly void. [Cits.] The first-mentioned class (suits that are void) includes suits where the petition has been filed but not served upon the defendant. [Cits.]” The rationale underlying this rule was elucidated in Chance v. Planters Rural Tel. Cooperative, 219 Ga. 1, 4 (131 SE2d 541), where it was stated that, as to Code Ann. § 3-808: ". . .the mere filing of the petition will not of itself operate to toll the statute of limitation. For, service is also a vital ingredient. [Cits.]”
The relationship between service and the operation of revival statutes such as Code Ann. § 3-808 is firmly established. "Without service it amounts to nothing. It would scarcely be contended that a plaintiff, whose right of action lacks but a few days of being barred by the statute of limitation, could, by simply filing his petition in the clerk’s office, with the clerk’s entry thereon, and then dismissing it without service, gain six months longer time to recommence an action for the same cause.” Branch v. Mechanics’ Bank, 50 Ga. 413, 416. It is thus very clear that, in order to invoke the privilege of the revival statute, as to "an action which has been dismissed, so as to make the same stand upon the same footing as to limitation as the original case, it is essential that the declaration filed in the first instance should have been served upon the defendant. Mere filing, without service, will not be
Judgment affirmed.
Reference
- Full Case Name
- HAAS v. BLAKE
- Cited By
- 1 case
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- Published