O.C.G.A. § 9-2-62 (2019)

Annotations

Law reviews. For article, “The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act,” see 3 Ga. St. B.J. 383 (1967).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION RETRAXIT DISMISSAL OR DISCONTINUANCE General Consideration Intent of section. - Evident intent of this section is to prevent harassing renewal of action which plaintiff has, after calling upon defendant to appear in court and defend it, elected to dismiss for some reason, good or otherwise. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621, 142 S.E.2d 402, 1965 Ga. App. LEXIS 1044 (1965). Construction of section with O.C.G.A. §§ 9-15-3 and 9-15-11. - Former Civil Code 1910, §§ 5624 and 5625 (see now O.C.G.A. § 9-2-62) must be construed in conjunction with former Civil Code 1910, § 5991 (see O.C.G.A. § 9-153), prohibiting officers of court from demanding costs in any civil case until judgment, except in cases of nonresident plaintiffs and attorneys, and in conjunc-

tion with former Civil Code 1910, § 5992 (see now O.C.G.A. § 9-15-11), relating to inclusion of costs in judgment against party dismissing, etc. Dickson v. Hutchinson, 173 Ga. 644, 161 S.E. 139, 1931 Ga. LEXIS 374 (1931). Payment of costs or showing of inability. - Under former Civil Code 1895, §§ 5042 and 5043 and Ga. L. 1901, p. 80, § 1 (see now O.C.G.A. §§ 9-2-62 and 9-263), plaintiff must pay costs or file affidavit showing the plaintiff’s inability to do so. Wright v. Jett, 120 Ga. 995, 48 S.E. 345, 1904 Ga. LEXIS 772 (1904); White v. Bryant, 136 Ga. 423, 71 S.E. 677, 1911 Ga. LEXIS 564 (1911); Williams v. Holland, 9 Ga. App. 494, 71 S.E. 760, 1911 Ga. App. LEXIS 201 (1911); Collins v. Burkhalter, 144 Ga. 695, 87 S.E. 888, 1916 Ga. LEXIS 85 (1916); Morgan v. Hutcheson, 32 Ga.

General Consideration (Cont’d) App. 501, 123 S.E. 904, 1924 Ga. App. LEXIS 505 (1924). Payment of costs is prerequisite. - It is essential to plaintiff’s right to recommence action, after a dismissal, that accrued costs in former action be paid. Gheesling v. Louisville & N.R.R., 38 Ga. App. 485, 144 S.E. 328, 1928 Ga. App. LEXIS 305 (1928). When plaintiff voluntarily dismisses an action, the plaintiff may recommence the action on payment of costs. Dickson v. Hutchinson, 173 Ga. 644, 161 S.E. 139, 1931 Ga. LEXIS 374 (1931). Payment of costs is condition precedent to right to renew original dismissed action. Grier v. Wade Ford, Inc., 135 Ga. App. 821, 219 S.E.2d 43, 1975 Ga. App. LEXIS 1839 (1975); Perry v. Landmark Fin. Corp., 141 Ga. App. 62, 232 S.E.2d 399, 1977 Ga. App. LEXIS 1763 (1977). Requirement that costs be paid is in nature of penalty. - Condition imposed on the plaintiff as to payment of costs before renewing action is in the nature of a penalty for not being ready and willing to press original action to a hearing on its merits. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621, 142 S.E.2d 402, 1965 Ga. App. LEXIS 1044 (1965). Full payment of costs is required and no mere arrangement whereby some collecting officer gives a receipt without payment is sufficient so far as it relates to costs due other officers or private persons. McLaurin v. Fields, 4 Ga. App. 688, 62 S.E. 114, 1908 Ga. App. LEXIS 508 (1908); Williams v. Holland, 9 Ga. App. 494, 71 S.E. 760, 1911 Ga. App. LEXIS 201 (1911); German Alliance Ins. Co. v. Hawes, 18 Ga. App. 338, 89 S.E. 527, 1916 Ga. App. LEXIS 350 (1916). Charging costs to counsel is insufficient. Board of Educ. v. Kelley, 126 Ga. 479, 55 S.E. 238, 1906 Ga. LEXIS 418 (1906). This section has no application when second action is substantially different from the one that has been brought and dismissed. Ford v. Clark, 75 Ga. 612, 1885 Ga. LEXIS 188 (1885); White v. Moss & Childs, 92 Ga. 244, 18

S.E. 13, 1893 Ga. LEXIS 50 (1893); Doody Co. v. Jeffcoat, 127 Ga. 301, 56 S.E. 421, 1907 Ga. LEXIS 241 (1907); Southern Ry. v. Rowe, 2 Ga. App. 557, 59 S.E. 462, 1907 Ga. App. LEXIS 451 (1907); Bunting v. Hutchinson, 5 Ga. App. 194, 63 S.E. 49, 1908 Ga. App. LEXIS 64 (1908). Section not applicable to federal cases. - This section, imposing penalty upon those who dismiss cases, is not applicable to cases in federal court. McIver v. Florida, C. & P.R.R., 110 Ga. 223, 36 S.E. 775, 1900 Ga. LEXIS 347 (1900), writ of error dismissed, 22 S. Ct. 937, 46 L. Ed. 1265 (1902); Southern Ry. v. Rowe, 2 Ga. App. 557, 59 S.E. 462, 1907 Ga. App. LEXIS 451 (1907). Retraxit Rules in this section governing retraxit are codified from the English common law. Harvey v. Boyd, 24 Ga. App. 561, 101 S.E. 708, 1919 Ga. App. LEXIS 931 (1919). Retraxit is act by which plaintiff abandons claim and withdraws the plaintiff’s suit. West v. Flynn Realty Co., 53 Ga. App. 594, 186 S.E. 753, 1936 Ga. App. LEXIS 330 (1936). Coplaintiff not barred by retraxit entered without consent. - When retraxit is entered by one joint plaintiff without consent of the coplaintiff, the latter may continue to prosecute the claim. Harvey v. Boyd, 24 Ga. App. 561, 101 S.E. 708, 1919 Ga. App. LEXIS 931 (1919). Statement of plaintiff’s attorney that plaintiff was not seeking rent but was only seeking to recover possession of premises would not amount to retraxit. West v. Flynn Realty Co., 53 Ga. App. 594, 186 S.E. 753, 1936 Ga. App. LEXIS 330 (1936). Dismissal of plaintiff’s action on condition that defendants pay costs is not a renunciation of plaintiff’s cause of action and does not amount to a retraxit. Corbin v. Goepper, 184 Ga. 559, 192 S.E. 24, 1937 Ga. LEXIS 571 (1937). Dismissal when previous retraxit entered. - When decree of retraxit was rendered more than three years before action on guardian’s bond was filed and more than three years after plaintiff attained majority and petition alleged no

facts to relieve plaintiff of bar on the ground that the plaintiff was deterred from the plaintiff’s action, the court could not do otherwise than dismiss the action. Brinsfield v. Robbins, 183 Ga. 258, 188 S.E. 7, 1936 Ga. LEXIS 212 (1936). Dismissal or Discontinuance Costs paid only when action is dismissed or discontinued by plaintiff’s act. - It is only when action has been dismissed or discontinued by an act of the plaintiff that, as a condition precedent to recommencing an action, the costs of the former action must be paid or an affidavit in forma pauperis in lieu thereof be made. Dowe v. Debus Mfg. Co., 52 Ga. App. 713, 184 S.E. 362, 1936 Ga. App. LEXIS 232 (1936). Cost requirement inapplicable when first action dismissed for want of prosecution. - Requirement under this section that the plaintiff pay costs upon recommencement applies to voluntary dismissal by the plaintiff, not dismissal for want of prosecution. City of Chamblee v. Village of N. Atlanta, 217 Ga. 517, 123 S.E.2d 663, 1962 Ga. LEXIS 311 (1962). Payment of costs in former action dismissed for want of prosecution is not a prerequisite to filing another action between the same parties on the same cause of action. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621, 142 S.E.2d 402, 1965 Ga. App. LEXIS 1044 (1965) (arguing for adoption by Supreme Court of contrary rule). Prepayment of costs was not condition of right to proceed when party was not served in former action. Hackney v. Asbury & Co., 124 Ga. 678, 52 S.E. 886, 1906 Ga. LEXIS 584 (1906). Before it is required, as condition precedent to filing of action, that costs which accrued in former action be paid or affidavit of indigence be made, former action must have been one pending between the parties; and when, in former action, service of the defendant was not perfected, and action was dismissed on this ground,

former action was never pending. Dowe v. Debus Mfg. Co., 52 Ga. App. 713, 184 S.E. 362, 1936 Ga. App. LEXIS 232 (1936); Register v. Sanders, 103 Ga. App. 368, 119 S.E.2d 294, 1961 Ga. App. LEXIS 942 (1961). Mere filing with the clerk without issuance of process is not institution of action, and payment of costs is not condition precedent to filing at the next term of court the identical cause of action. Register v. Sanders, 103 Ga. App. 368, 119 S.E.2d 294, 1961 Ga. App. LEXIS 942 (1961). Action against trustee formerly sued as individual. - Prepayment of costs was not condition of right to proceed in action against trustee who was formerly sued as individual. Moore v. Bower, 6 Ga. App. 450, 65 S.E. 328, 1909 Ga. App. LEXIS 339 (1909). Action against partnership after action against partner. - When partnership was sued after action against partner, prepayment of costs was not condition of right to proceed. Doody Co. v. Jeffcoat, 127 Ga. 301, 56 S.E. 421, 1907 Ga. LEXIS 241 (1907). This section does not apply if one settles action instituted against that person. Graham v. Massengale Adv. Agency, 4 Ga. App. 826, 62 S.E. 567, 1908 Ga. App. LEXIS 544 (1908). Proof of dismissal. - Unchallenged entry of dismissal, as made on docket by trial judge, must be taken as conclusive proof of dismissal. Smith v. Merchants & Farmers Bank, 22 Ga. App. 505, 96 S.E. 342, 1918 Ga. App. LEXIS 579 (1918). Contention that verdict and judgment for divorce were void and should be set aside for reason that plaintiff had instituted divorce action without paying court costs accrued in action for divorce which the plaintiff had previously filed and dismissed came too late when made for the first time in a petition to set aside the verdict and judgment. Crenshaw v. Crenshaw, 198 Ga. 536, 32 S.E.2d 177, 1944 Ga. LEXIS 430 (1944).

RESEARCH REFERENCES Am. Jur. 2d. 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, §§ 1, 3, 6. C.J.S. 27 C.J.S., Dismissal and Nonsuit, § 5 et seq. ALR. Reinstatement, after expiration of term,

of case which has been voluntarily withdrawn, dismissed, or nonsuited, 111 A.L.R. 767. Statute permitting new action after failure of original action commenced within period of limitation, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043.