Frommel & Brother v. Cox , 158 Ga. 310 ( 1924 )

Gilbert, J.

1. The court did not err in overruling the general demurrer to the petition.

2. The suit was not barred by laches nor by the statute of limitations.

(а) The running of the statute of limitations was tolled by the pendency of a former suit.

(b) 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. White v. Bryant, 136 Ga. 423 (71 S. E. 677); Wright v. Jett, 120 Ga. 995 (48 S. E. 345). Unless the failure to pay costs appears on the face of the petition, demurrer is not the proper remedy to raise that issue.

3. The court did not err in overruling the grounds of special demurrer-based upon duplicity, multifariousness, and misjoinder of causes of action.

No. 3960. May 14, 1924.

4. The court did not err in directing a verdict for the plaintiff. Under the undisputed evidence the property sought to be recovered was the separate property of the wife, conveyed for the purpose of being used to pay or to secure the debt of the husband, with full knowledge of all the facts on the part of the creditor. No other verdict could have been rendered. Compare Jackson v. Reeves, 156 Ga. 802 (120 S. E. 541). The evidence on the question of duress was conflicting, and if the plaintiff had depended solely upon that issue it would have been error for the court to direct a verdict. Such, however, was not the ease. The verdict for the plaintiff, which was directed by the court, was fully authorized for the reasons stated above, that the property was the separate estate of the wife, and that the conveyances to the husband and to the creditor to secure the husband’s debt were with full knowledge of all the facts on the part of the creditor, and at the instance and request of the latter. Furthermore, when the property was sold under the judgment obtained by the creditor, the disputed issue as to notice on the part of the wife of such sale became immaterial, because the property was bought in by the creditor, the defendant in this case, and no rights of innocent third parties are involved.

Judgment affirmed.

All the Justices concur, except Atkinson, J., dissenting. IF. Carroll Latimer and Albert L. Mayer, for plaintiff in error. Lari Sims and J. B. McCollum, contra.