368 F2d 329 Fricks v. Carroll L

368 F.2d 329

Johnny Bruce FRICKS, Appellant,
v.
Margaret Mae Smalley CARROLL and James L. Carroll, Appellees.

No. 23393.

United States Court of Appeals Fifth Circuit.

Oct. 3, 1966.

L. Paul Cobb, Jr., Atlanta, Ga., Glyndon C. Pruitt, Buford, Ga., for appellant.

Paul L. Millirons, Roscoe Roberts, Jr., Huntsville, Ala., for appellees.

Before RIVES, BELL, and THORNBERRY, Circuit Judges.

PER CURIAM:

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1

Appellant, a resident of Georgia, sued appellees, residents of Alabama, claiming damages for personal injuries sustained in an automobile accident which occurred in Georgia. The District Court dismissed the action on the basis that it affirmatively appeared from the complaint that it was barred by the Alabama statute of limitations of one year. Code of Ala., Tit. 7, 26. This ruling was proper. The Alabama statute of limitations was applicable rather than the two year Georgia statute of limitations. Guaranty Trust Company of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231; Wells v. Simonds Abrasive Company, 1953, 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211; 2 Moore's Federal Practice, pp. 740, 743-746; 1 Barron and Holtzoff, Federal Practice and Procedure, pp. 590-604.

2

The judgment of the District Court should, however, be modified to provide that the complaint rather than the action be dismissed. This will avoid any res judicata problem, and the judgment is vacated and the case remanded so that the judgment may be modified accordingly.

3

Affirmed in part; vacated and remanded with direction.