Opinion
44634.
ARGUED SEPTEMBER 8, 1969.
DECIDED FEBRUARY 5, 1970. REHEARING DENIED MARCH 31, 1970.
Action for damages. Gwinnett Civil and Criminal Court. Before Judge Cheeley.
Robinson, Thompson, Buice Harben, Emory F. Robinson, for appellant.
Merritt Pruitt, Glyndon C. Pruitt, for appellee.
A pending tort action in the City Court of Buford in Gwinnett County against the defendant railroad, substantially identical to the present action, tolled the statute of limitation for personal injuries until that court dismissed the action, and for six months thereafter, thereby preserving a claim for personal injuries at the time the plaintiff renewed her claim within the six-month period in the Civil and Criminal Court of Gwinnett County.
ARGUED SEPTEMBER 8, 1969 — DECIDED FEBRUARY 5, 1970 — REHEARING DENIED MARCH 31, 1970 — CERT. APPLIED FOR.
Willie Mae Pruitt timely filed an action in the City Court of Buford against Southern Railway Company for personal injuries and property damage resulting from a train-auto collision in Gwinnett County on August 10, 1966. The City Court of Buford by order dated February 1, 1969, dismissed the action on a plea to the jurisdiction. Within six months thereafter and on March 10, 1969, plaintiff Pruitt filed a complaint against the defendant railroad in the Civil and Criminal Court of Gwinnett County based upon the same collision. The railroad company sought by summary judgment to exclude any claim except for property damage, contending that the suit in the City Court of Buford did not toll the 2-year statute with respect to personal injuries. This appeal is from the order of the Civil and Criminal Court of Gwinnett County denying the motion.
We affirm. The venue of an action against a railroad company is the "county in which the cause of action originated." Code § 94-1101. While the first suit was brought in Gwinnett County where the cause of action originated, it was dismissed by the City Court of Buford on the ground that the collision complained of occurred outside the territorial limits of that court. While we think this was an erroneous conclusion, that order was unappealed from and is not the subject of review here. Even so, under the holdings in Atlanta, Knoxville c. R. Co. v. Wilson, 119 Ga. 781 ( 47 S.E. 366) and Lamb v. Howard, 150 Ga. 12 ( 102 S.E. 436), the suit, though dismissed for lack of jurisdiction, tolled the statute of limitation during the time the action was there pending and six months thereafter.
The renewal statute ( Code Ann. § 3-808) is remedial in nature and should be liberally construed. As was pointed out in Atlanta, Knoxville c. R. v. Wilson, supra, at p. 786, "In selecting Cobb county as the venue in which her action was to be tried the plaintiff made a mistake, but was not guilty of such laches as to warrant the defendant in insisting that nothing had been done to interrupt the running of the statute. Section 3786 of the Civil Code [of 1895, now Code Ann. § 3-808] was intended to afford relief from such mistakes, accidents, and errors. If the plaintiff had brought her suit properly, there would have been no occasion to discontinue. When the reason for discontinuance appeared, or was determined by the court, the statute allowed a renewal for the very purpose of avoiding the result of the error. The mistake cannot, then, be relied on to prevent the right to renew. Unless the case is an absolute nullity, the defective or improper suit may be used to nurse the cause of action into full life in the proper form and forum."
The appellant relies on such cases as McClendon Co. v. Hernando Phosphate Co., 100 Ga. 219 ( 28 S.E. 152) and McFarland v. McFarland, 151 Ga. 9 ( 105 S.E. 596), to the effect that the renewal statute applies only where a "valid suit has been pending and subsequently dismissed." This line of cases deals primarily with suits void for want of service, nonpayment of costs, or void for similar reasons. The reasoning in these cases is not applicable to the facts in this case. See the discussion in the Atlanta, Knoxville c. R. v. Wilson and Lamb v. Howard cases, supra, which clearly distinguish this line of authority from the factual situation existing here. See also Cutliffe v. Pryse, 187 Ga. 51 ( 200 S.E. 124), citing and distinguishing cases which have been held void and those held to be "voidable — not wholly void."
Judgment affirmed. Hall and Whitman, JJ., concur.