Bagley v. Stephens , 80 Ga. 736 ( 1887 )

Simmons, Justice.

1. There was no error in the grant of a new trial in this case by the court below, even though the plaintiffs offered to. write off from the verdict the recovery had in favor of Mrs. Bagley, who ivas clearly barred by the statute of limitations. It appears from this record that John Bagley, one of the plaintiffs in the court below, was also barred when the last suit was instituted. The first suit was filed August 23d, 1884, and dismissed by the plaintiffs March 24th, 1885, and was renewed September 28th, 1885, making six months and four days between the dismissal of the first suit and. the filing of the second. The code, §2932, provides that “if a plaintiff shall be nonsuited or ‘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.” The statute of limitations had not fully run against John Bagley when he brought the first suit, but he was barred before the second suit was instituted, and not having recommenced the same within six months, the statutory bar applied to him; and therefore the court was right in granting a new trial on that ground.

2. Besides, even if the statute had not run against-John Bagley, the evidence being conflicting and .this being the first grant of a new trial, this court will not interfere.

Judgment affirmed.