Nevels v. Detroiter Mobile Homes , 124 Ga. App. 112 ( 1971 )

124 Ga. App. 112 (1971) 183 S.E.2d 77

NEVELS
v.
DETROITER MOBILE HOMES et al.

46035.

Court of Appeals of Georgia.

Argued March 1, 1971. Decided June 22, 1971.

Lewis O. Nevels, for appellant.

Perry, Walters, Langstaff, Lippitt & Campbell, Evans J. Plowden, Jr., for appellees.

BELL, Chief Judge.

The appellant as administrator filed suit on August 7, 1970, for damages arising out of an alleged malicious arrest and prosecution of the intestate. The warrant was dismissed on November 3, 1967. The administrator was appointed on March 4, 1968. The trial judge granted the defendants' motion to dismiss the complaint on the ground that the case was barred by the statute of limitation. Appellant contends that the case was saved by the renewal statute as a prior suit had been brought in federal district court and there dismissed. Held:

1. The cause alleged in the complaint is of the type that is subject to the two-year statute of limitation. Code Ann. § 3-1004. McCullough v. Atlantic Refining Co., 50 Ga. App. 237 (1) (177 S.E. 601).

2. Even if a suit for the same cause had previously been filed in a federal district court and there dismissed, the statute of limitation is not tolled by the Georgia renewal statute (Code Ann. § 3-808) as the latter is not applicable to suits commenced in federal courts. Anderson v. Southern Bell Tel. &c. Co., 108 Ga. App. 314 (132 SE2d 820). See Lillibridge v. Riley, 316 F2d 232.

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