Barber v. City of Rome , 39 Ga. App. 225 ( 1929 )

Stephens, J.

1. Where a petition seeks to renew a former suit within' six months of the dismissal of the suit, which would otherwise be barred by the statute of limitations, as provided in §§ 4381, 5626 of the Civil Code of 1910, it must appear from the renewal petition that the new suit is substantially the same cause of action as that of the former ' suit. Where it appears from the renewal petition that the former suit was brought in another court from that in which the renewal suit is brought, and where the renewal petition fails to contain allegations showing that it is brought on substantially the same cause of action as that in the former suit, either by containing a copy of the petition in the former suit or alleging its substance, and the renewal petition is brought beyond the period of the statute of limitations, the petition is subject to demurrer upon these grounds. Atlanta, Knoxville & Northern Railway Co. v. Wilson, 119 Ga. 781 (47 S. E. 366).

Decided February 6, 1929. Henry Walker, for plaintiff. Paul H. Doyal, for defendant.

2. An allegation in the renewal petition to the effect that prior to the institution of the former suit, which was against a municipal corporation, the plaintiff had served upon the defendant a written notice of claim, as provided by section 910 of the Political Code of 1910, in .which the plaintiff claimed damages arising out of the same cause of action as that sued on in the renewal petition, is not an allegation as to the cause of action sued on in the former suit.

3. The judge of one court can not take judicial notice of the contents of the records of another court. Ellis v. Mills, 99 Ga. 490 (2) (27 S. E. 740). Where the renewal suit is brought in'the city court, and it appears from the petition that the suit sought to be renewed was brought in the superior court, the judge of the city court can not, on demurrer to the petition upon the ground that it fails to contain allegations showing the cause of action sued on in the former suit, take notice of the allegations in the petition in the former suit.

4. The renewal petition in this case was properly dismissed on demurrer.

Judgment affirmed.

Jenkins, P. J., amd Bell, J., concur.