Opinion
34298.
DECIDED NOVEMBER 13, 1952.
Complaint on insurance policy; from Clarke Superior Court — Judge West. August 15, 1952.
O. J. Tolnas, for plaintiff in error.
Lokey, Bowden Rolleston, contra.
1. "A writ of error will be dismissed if while it is pending an event occurs which makes the determination of it unnecessary." Akerman v. Mayor c. of Cartersville, 119 Ga. 27 (1) ( 45 S.E. 725): Turner v. Hill, 17 Ga. App. 257 ( 86 S.E. 460); Drury v. Cameron Barclay Co., 25 Ga. App. 15 ( 102 S.E. 373).
2. Where, as here, a suit is dismissed on demurrer for a defect not going to the merits, and Prior to the tendering of the bill of exceptions another suit is instituted by the plaintiff against the same defendant, based on the same cause of action, in a court of this State having jurisdiction of the subject matter, the bringing of the second action amounts to an acquiescence in the ruling on demurrer and is a relinquishment of the right to except thereto. Hall v. Alford, 34 Ga. App. 753 ( 131 S.E. 95).
3. This decision is not changed by the further fact — appearing from a verified answer to the motion to dismiss on behalf of the plaintiff in error — that a plea in abatement was filed to the second suit in the City Court of Athens, since the dismissal of this action is without prejudice to the prosecution of the renewed action, and must necessarily result in a judgment adverse to such plea. Hall v. Alford, supra.
Writ of error dismissed. Gardner, P.J., and Carlisle, J., concur.
DECIDED NOVEMBER 13, 1952.
The present action is a suit on an insurance policy, filed in the Superior Court of Clarke County, wherein the plaintiff, as administrator, sought to collect fire insurance issued upon certain property of the estate. The petition was filed on April 6, 1951. However, on April 2, 1951, the defendant Northern Assurance Company Ltd., filed a petition against this plaintiff and others, in the Superior Court of Warren County, which was denominated an interpleader, and sought and obtained an order restraining the plaintiff here from seeking to collect any amount claimed due it under said fire-insurance policy "by any means other than the above-stated interpleader proceedings." Apparently this restraining order was brought to the attention of the plaintiff here immediately after the petition in this case was filed, and after it had been given a docket number, but before the clerk had attached a process thereto, and he informed the clerk not to proceed further. In consequence no process was attached to this petition until June 28, 1952, when by amendment the plaintiff alleged that the interpleader proceedings in Warren County, in which the injunctive order had been passed, had been dismissed, and obtained an order that process issue. The defendant demurred to the petition as amended on the ground that the court was without authority to order a process to be issued fourteen months after the filing of the action, no process having issued during that time. The general demurrer was sustained on August 15, 1952, and the petition dismissed. The plaintiff appealed from the order of dismissal to this court, the bill of exceptions in this case having been signed by the court on August 22, 1952.
The defendant in error then filed a motion to dismiss the appeal in this court, alleging that on the same day the general demurrer was sustained, and prior to the tender of the bill of exceptions, the plaintiff renewed his action by filing suit against the same defendant on the same cause of action in the City Court of Athens. Attached to the motion to dismiss and made a part thereof are certified copies of the pleadings so filed, together with an affidavit reciting these facts, given by E. J. Crawford, Clerk of the Superior Court of Clarke County and also ex officio Clerk of the City Court of Athens, the keeper of records of both courts. From the attached copies of pleadings it appears that, although the second suit contains some new matter (such as prayers for penalties and attorney fees), it also contains all matter of substance, is against the same defendant, and sets out a cause of action based on the same policy of insurance, as does the petition here. The facts contained in the motion to dismiss are not denied by the plaintiff in error, who seeks, by answer to the motion to dismiss the writ of error here, to bring forward by way of exhibit a plea in abatement filed by the defendant to the renewed action in the City Court of Athens on the ground of another suit pending.