Carmack v. Oglethorpe Company

Deen, Judge.

1. Where the plaintiff is nonsuited and files a timely appeal from that judgment which is affirmed by the appellate court, he may, within 6 months of the date of affirmance, recommence his action upon complying with the *665conditions imposed by Code § 3-808. Central of Ga. R. Co. v. Macon R. &c. Co., 140 Ga. 309 (2) (78 SE 931). Where, on the other hand, after a judgment of nonsuit the plaintiff attempts an abortive appeal which is dismissed by the appellate court because it does not meet the statutory requirements, such attempt will not toll the statute of limitation, and the new action must be recommenced within six months of the judgment of nonsuit. Southern Bell Tel. & Tel. Co. v. Freeman, 22 Ga. App. 166 (2) (95 SE 740).

2. “Of course, it is elementary that the substance and not mere nomenclature controls in determining the nature of pleadings. Girtman v. Girtman, 191 Ga. 173, 180 (11 SE2d 782); Waller v. Morris, 78 Ga. App. 821, 822 (52 SE2d 583); Ga. Marine Salvage Co. v. Merritt, 82 Ga. App. 111, 116 (60 SE2d 419).” Chance v. Planters Rural Tel. Co-op., 219 Ga. 1, 5 (131 SE2d 541). “We are not concerned with the label a pleader fastens upon any proceedings. The court will look to the substance of the plea.” Crow v. Mothers Beautiful Co., 115 Ga. App. 747, 748 (156 SE2d 193); Chambliss v. Hall, 113 Ga. App. 96, 97 (147 SE2d 334); Smith v. McMichael, 203 Ga. 74 (5) (45 SE2d 431).

3. Applying the foregoing law to the facts of this case, where it appears that this plaintiff was nonsuited on September 20, 1965, and that an abortive appeal attempted to be taken from that judgment was dismissed for failure to prepare a transcript of evidence (see Oglethorpe Co. v. Carmack, 223 Ga. 128 (153 SE2d 541), conformed to in Carmack v. Oglethorpe Co., 115 Ga. App. 368 (154 SE2d 743)), and that the present action was not brought until March 15, 1967, more than six months after the judgment of nonsuit, and after the statute of limitation had run on the cause of action, this action was filed too late. The trial court sustained a plea denominated a plea in abatement (which as such would be insufficient because not filed within 30 days after the service of the petition) but which was really a plea in bar because it alleged: “No proper appeal was perfected from the judgment of DeKalb Superior Court, dated September 20, 1965, granting the defendant’s motion for nonsuit, and that judgment, therefore, stands as the law of this case and as a final adjudication of the plaintiff’s cause of action.” There was also a prayer that the defendant be discharged with costs on the plaintiff. Since it raised the issue that the judgment of nonsuit had become a *666final determination of the case, it was in bar of the action and was not required to be filed at the first term. Gamble v. Gamble, 204 Ga. 82, 86 (48 SE2d 540); Krasner v. O’Dell, 89 Ga. App. 718 (3, 4) (80 SE2d 852); Loveless v. Carien, 64 Ga. App. 54 (1) (12 SE2d 175).

Argued February 7, 1968 Decided April 22, 1968. E. T. Hendon, Jr., for appellant. Eugene G. Partain, Richard H. Vincent, Jack M. McLaughlin, for appellee.

The trial court’s order sustaining the plea recites that it was entered after hearing evidence. The plaintiff’s amended petition and affirmative answers to the defendant’s request for admissions establish that there is no controversy as to' the facts.

The trial court did not err in overruling the motion to strike the plea and in thereafter sustaining it and dismissing the action.

Judgment affirmed.

Felton, C. J., Bell, P. J., Jordan, P. J., Hall, Eberhardt and Quillian, JJ., concur. Pannell and Whitman, JJ., dissent.