Blaustein v. Harrison

160 Ga. App. 256 (1981)

286 S.E.2d 758

BLAUSTEIN v. HARRISON.

62569.

Court of Appeals of Georgia.

Decided October 14, 1981.

Rehearing Denied October 30, 1981.

Robert John White, for appellant.

Robert G. Tanner, for appellee.

BANKE, Judge.

This medical malpractice action was initially field in the United States District Court for the Northern District of Georgia, where it was dismissed for lack of diversity jurisdiction. Within six months of *257 this dismissal, but more than two years after accrual of the cause of action, the plaintiff refiled the suit in the Superior Court of Fulton County. The trial court granted summary judgment to the defendant based on the running of statute of limitation (Code Ann. § 3-1102; Ga. L. 1976, pp. 1363, 1364). The plaintiff appeals, contending that she was authorized under Code Ann. § 3-808 to refile the suit within six months of the dismissal in federal court. Held:

Code Ann. § 3-808 (as amended through Ga. L. 1967, pp. 226, 244) provides as follows: "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." It has been held repeatedly that this rule does not apply where the original filing is in federal court. See Henson v. Columbus Bank &c. Co., 144 Ga. App. 80 (4) (240 SE2d 284) (1977), and cases cited therein. We reject the plaintiff's contention that such an interpretation of the statute is unconstitutional, given that it is based upon Supreme Court precedent. See, e.g., Constitution Pub. Co. v. DeLaughter, 95 Ga. 17 (21 SE 1000) (1894); Webb v. Southern Cotton Oil Co., 131 Ga. 682 (63 SE 135) (1908).

Judgment affirmed. Deen, P. J., and Carley, J., concur.