Gilmore v. Georgia Railroad & Banking Co. , 93 Ga. 482 ( 1893 )

Bleckley, Chief Justice.

The first suit was terminated by a judgment of non-suit in the court below, before the second was brought. That judgment was final in its nature, and the writ of error which was pending when the second suit was commenced, was so defective that no reversal upon it could possibly have been had without an express or implied waiver of the defects by the defendant in error. Pendley v. The State, 87 Ga. 186. No such waiver took place while the writ of error was pending. Consequently at no time previous to its withdrawal could any judgment' have been rendered upon it except one of affirmance, the pro forma judgment always rendered when a writ of error is either dismissed or withdrawn. In point of fact, this writ of error was withdrawn and such a judgment rendered on -the day after the second action was brought, and before the plea in abatement was filed. By withdrawing it, the plaintiff in error conclusively admitted that no recovery upon it could be had. The judgment of affirmance consequent upon the withdrawal, took effect, not from its own date, but from the date of the judgment below, which was the subject of the affirmance. It results that in adjudicating upon the plea in abatement, the court should have treated the first action as terminated before the second was brought. The writ of error was too defective to create any legal extension in its term of existence. Applying to the writ of error the principle of sec. 3476 of the code, it was no obstacle to the second suit, that section declaring that' “ If the first action is so defective that no recovery can be possibly had, the pendency of the former suit will not abate the action.”' The court erred in sustaining the plea and dismissing the action. Judgment reversed.