Bourquine v. City of Patterson

151 Ga. App. 232 (1979) 259 S.E.2d 214

BOURQUINE et al.
v.
CITY OF PATTERSON.

58146.

Court of Appeals of Georgia.

Argued July 11, 1979. Decided September 6, 1979.

Jack P. Friday, Jr., Bobby L. Hill, Robert E. Robinson, for appellants.

Francis Houston, for appellee.

BANKE, Judge.

Appellant appeals the dismissal of his wrongful death action as being barred by the statute of limitation.

Appellant's son died on July 26, 1970; and suit was originally commenced on July 25, 1972. The case was voluntarily dismissed on April 29, 1976, and was refiled on October 11, 1976, within the six months allowed under Code Ann. § 3-808 (Ga. L. 1967, pp. 226, 244). The trial court dismissed this complaint because it did not show on its face that it was a renewal of the earlier action. The appellant moved to amend this facial deficiency; however, the motion was denied. Held:

"If a plaintiff 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; but this privilege of dismissal and renewal shall be exercised only once under this section." Code Ann. § 3-808, supra. "A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pre-trial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Code Ann. § 81-115. "In exercising this discretion, the judge should balance possible prejudice to the nonmoving party with the moving party's reason for delay." Leslie, Inc. v. Solomon, 141 Ga. App. 673, 674 (234 SE2d 104) (1977). "This provision is to be liberally construed in favor of the allowance of amendments, particularly when the party opposing the amendment is not prejudiced thereby." MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41 (2) (230 SE2d 26) (1976). There being no suggestion of prejudice to appellee, we hold that the trial court erred in failing to allow the amendment and in dismissing the complaint.

Judgment reversed. McMurray, P. J., and Underwood, J., concur.