Covil v. Stansell , 113 Ga. App. 179 ( 1966 )

113 Ga. App. 179 (1966) 147 S.E.2d 479

COVIL et al.
v.
STANSELL et al.

41666.

Court of Appeals of Georgia.

Argued January 5, 1966. Decided February 23, 1966.

Smith, Ringel, Martin & Lowe, Ralph H. Witt, for appellants.

Crespi & Mildon, Joseph S. Crespi, for appellees.

NICHOLS, Presiding Judge.

1. The Act of 1953 (Ga. L. 1953, Nov. Sess., p. 342; Code Ann. § 3-512), provides for the dismissal of all cases wherein no order of continuance or otherwise is entered for a period of five years, and such Act is mandatory. See Swint v. Smith, 219 Ga. 532 (134 SE2d 595).

2. A dismissal under the Act of 1953, supra, is not a dismissal deciding the merits of the plaintiffs case so as to bar another suit upon the same cause of action. City of Chamblee v. Village of North Atlanta, 217 Ga. 517 (123 SE2d 663).

3. Under the decision of the Supreme Court in Clark v. Newsome, 180 Ga. 97 (178 S.E. 386), a plaintiff who has had his action dismissed other than on the merits may refile within six months under Code § 3-808 where the original action was not barred by the statute of limitation.

4. The plaintiff's petition in the present case was not subject to defendant's general demurrer which alleged that the refiling of the action was barred by the statute of limitation.

Judgment affirmed. Hall and Deen, JJ., concur.