Couch v. Wallace

Couch v. Wallace, 292 S.E.2d 405 (Ga. 1982)

Court: Supreme Court of Georgia · State Highest Courts
Decided: June 22, 1982
Docket: No. 38576
Judges: Clarke
Citations: 292 S.E.2d 405249 Ga. 5681982 Ga. LEXIS 874

Cited by 13 1 descriptions by later courts

Opinion — Clarke

Clarke, Justice.

The trial court dismissed appellant’s complaint seeking damages for trespass to land and an injunction resulting in this appeal. We affirm.

This action is the second suit dealing with the same subject matter. An earlier suit had been dismissed by operation of law in that no written order was taken within five years. Code Ann. § 81A-141 (e). A dismissal under this section is not on the merits, and the case may be refiled within six months of the automatic dismissal.

Allstate Ins. Co. v. Dobbs, 134 Ga. App. 225 ( 213 SE2d 915 ) (1975).

The trial court found that the second suit was filed within six months of the automatic dismissal but held the second suit was a nullity in that costs were not paid in the first action.

A voluntary dismissed without prejudice may be filed under Code Ann. § 81A-141 (a). Code Ann. § 81A-141 (d) requires a plaintiff *569 who dismisses an action to pay court costs in that suit prior to refiling the same claim against the same party. Even though a voluntary dismissal may be without prejudice the payment of costs is a condition precedent to filing a second suit and if costs are not paid prior to filing then the second suit is not a valid pending action.

Perry v. Landmark Finance Corp., 141 Ga. App. 62 ( 232 SE2d 399 ) (1977).

Decided June 22, 1982.

Ware & Otonicar, Richard F. Otonicar, for appellant.

G. Robert Howard, for appellee.

We agree with the holding of the trial court that the refiling of a suit after automatic dismissal must also be preceded by payment of costs. There is language to the contrary in City of Chamblee v. Village of N. Atlanta, 217 Ga. 517 ( 123 SE2d 663 ) (1962), which was construing Code Ann. §§ 3-508 and 3-512. That case was prior to the adoption of the Civil Practice Act and no longer controls on this issue. We hold the correct interpretation of Code Ann. § 81A-141 requires the same prepayment of costs in actions dismissed under subsection (e) as is required in subsection (a) dismissals.

We find the remaining enumerations of error to be without merit.

Judgment affirmed.

All the Justices concur.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

(holding that a suit dismissed by operation of law for failure to prosecute “requires the same prepayment of costs in actions dismissed” voluntarily under Georgia’s Civil Practice Act)

Hancock v. Cape, 875 F.3d 1079 (11th Cir. 2017)

Cited by 13 cases

View all citing references →

Relies on it most ⓘ

Little v. Walker301 S.E.2d 639 (Ga. 1983)
Foster v. Bowen315 S.E.2d 656 (Ga. 1984)
Robinson v. Simpson319 S.E.2d 126 (Ga. Ct. App. 1984)
Tucker v. Mitchell314 S.E.2d 896 (Ga. 1984)
Daugherty v. Norville Industries, Inc.329 S.E.2d 202 (Ga. Ct. App. 1985)
Hilliard v. Edwards315 S.E.2d 39 (Ga. Ct. App. 1984)

Most recent

Yasund Q. Hancock v. Brent Cape875 F.3d 1079 (11th Cir. 2017)
Aiken Dermatology & Skin Cancer Clinic, P.A. v. Davlong Systems, Inc.725 S.E.2d 835 (Ga. Ct. App. 2012)
Crane v. Cheeley605 S.E.2d 824 (Ga. Ct. App. 2004)
Jeff Davis Hospital Authority v. Altman416 S.E.2d 763 (Ga. Ct. App. 1992)
Cox v. Fillingim361 S.E.2d 65 (Ga. Ct. App. 1987)
Daugherty v. Norville Industries, Inc.329 S.E.2d 202 (Ga. Ct. App. 1985)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

Depth	Case	Cited by
	City of Chamblee v. Vill. of North Atlanta, 123 S.E.2d 663 (Ga. 1962)	21
	Allstate Ins. Co. v. Dobbs, 213 S.E.2d 915 (Ga. Ct. App. 1975)	10
	Perry v. Landmark Fin. Corp., 232 S.E.2d 399 (Ga. Ct. App. 1977)	4

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