W. T. Raleigh Co. v. Barnes , 143 Miss. 597 ( 1926 )

^* Corpus Juris-Cyc References: Dismissal and Nonsuit, 18CJ, p. 1201, n. 1; Limitation of Actions, 37CJ, p. 1083, n. 43. The appellant was denied a recovery in the court below on the ground that its cause of action was barred by the statute of limitation. This was its second suit on this cause of action against the appellees. The first was begun before the bar of the statute attached, but was dismissed by an order reading as follows:

"This cause came on to be heard on motion to dismiss said cause, the motion is sustained, and cause dismissed without prejudice, with cost on the plaintiff, for which let execution issue."

The second suit, the one here on appeal, was begun within one year after the dismissal of the first. The grounds on which counsel for the appellant contend that this second suit can be maintained are:

First, it is within the provisions of section 3116, Code of 1906 (Hemingway's Code, section 2480), which is as follows:

"If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein." . . .

Second, that the appellant's right to institute another suit was expressly reserved to it by the provision in the order by which the first suit was dismissed that the dismissal should be "without prejudice."

When the case was tried by this court, both of these contentions were overruled, and counsel for the appellant now suggests that we erred in so doing.

The motion on which the first suit was dismissed does not appear in the record, and there is nothing in the order of dismissal indicating that it was a mere abatement of the action, or that the dismissal was "for any matter of form," but in an agreement of counsel the dismissal is referred to as a nonsuit. The statute invoked, therefore, can afford the appellant no relief.

The only effect of the words "without prejudice" in the order by which the first suit was dismissed is to prevent the dismissal of that suit in operating as a bar to any new suit which plaintiff might therefore desire to bring on the same cause of action. 34 Cyc. 894; Cole v. Fagan, 108 Miss. 100, 66 So. 400. The dismissal of a suit without prejudice "does not deprive the defendant of any defense he may be entitled to make to the new suit, nor confer any new right or advantage on the complainant [plaintiff], and hence it will not have the effect of excepting from the period prescribed by the statute of limitations, the time during which that suit was pending."Nevitt v. Bacon, 32 Miss. 212, 66 Am. Dec. 609.

The cases of Hawkins v. Scottish Union National InsuranceCo., 110 Miss. 23, 69 So. 710, and Cossar v. Grenada OilCo., 138 Miss. 890, 103 So. 509, relied on by counsel for appellant, are not here in point. In the first the former suit was dismissed for matter of form, and in the second it not only did not appear that the former suit had been dismissed, but it also did not appear that the former suit was on the same cause of action on which the second was being prosecuted.

The case of La Follette Coal, Iron Ry. Co. v. Minton,117 Tenn. 415, 101 S.W. 178, 11 L.R.A. (N.S.) 478, and Harrison v.Remington Paper Co., 140 F. 385, 72 C.C.A. 405, 3 L.R.A. (N.S.) 954, 5 Ann. Cas. 314, are also not here in point. The statute on which the first was decided provides that — "If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action." Shannon's Ann. Code of Tennessee 1917, section 4446, p. 4535.

And the pertinent provision in the statute on which the second was decided is:

"If the plaintiff fail in such action otherwise than upon the merits." Revised Statutes of Kansas Ann. 60-311.

A nonsuit or a dismissal without prejudice is, of course, within both of these statutes, but under our statute the dismissal must be for a matter of form, and, as hereinbefore stated, it does not appear that the appellant's prior suit was dismissed for that reason.

The request of counsel that the case be remanded to the docket for oral argument must be denied.

Suggestion of error will be overruled.

Overruled.