Atlantic Coast Line Railroad v. Harris

Court of Appeals of Georgia

Atlantic Coast Line Railroad v. Harris

88 S.E. 797, 18 Ga. App. 40, 1916 Ga. App. LEXIS 102

CourtCourt of Appeals of Georgia

DecidedMay 1, 1916

Docket6812

StatusPublished

This text of 88 S.E. 797 (Atlantic Coast Line Railroad v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atlantic Coast Line Railroad v. Harris, 88 S.E. 797, 18 Ga. App. 40, 1916 Ga. App. LEXIS 102 (Ga. Ct. App. 1916).

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Opinion

Broyles, J.

Where a suit has been dismissed by the plaintiff, in order to bring a second suit for the same cause of action the plaintiff must first pay all the costs which accrued in the former suit, Or file a pauper’s affidavit showing his inability to do so. A failure in this regard furnishes ground for a plea in abatement. White v. Bryant, 136 Ga. 423 (71 S. E. 677); Wright v. Jett, 120 Ga. 995 (48 S. E. 345); Williams v. Holland, 9 Ga. App. 494 (71 S. E. 760).

(a) The payment of the costs must be made to some person authorized to receive it. A justice of the peace is not the proper party to receive payment of the costs of a certiorari proceeding; they should be paid to the clerk of the superior court. In this ease there was some evidence showing that the costs of the certiorari were paid to the justice of the ‘peace before the second suit was begun, but the undisputed proof was that the clerk of the superior court did not receive them until several months after the new suit was filed, and, the plaintiff having filed no pauper’s affidavit of his inability to pay them, a finding in favor of the defendant on the plea in abatement was demanded, and the verdict for the plaintiff was unauthorized. The court therefore erred in overruling the motion for a new trial. Judgment reversed.

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Broyles, J.

Where a suit has been dismissed by the plaintiff, in order to bring a second suit for the same cause of action the plaintiff must first pay all the costs which accrued in the former suit, Or file a pauper’s affidavit showing his inability to do so. A failure in this regard furnishes ground for a plea in abatement. White v. Bryant, 136 Ga. 423 (71 S. E. 677); Wright v. Jett, 120 Ga. 995 (48 S. E. 345); Williams v. Holland, 9 Ga. App. 494 (71 S. E. 760).

(a) The payment of the costs must be made to some person authorized to receive it. A justice of the peace is not the proper party to receive payment of the costs of a certiorari proceeding; they should be paid to the clerk of the superior court. In this ease there was some evidence showing that the costs of the certiorari were paid to the justice of the ‘peace before the second suit was begun, but the undisputed proof was that the clerk of the superior court did not receive them until several months after the new suit was filed, and, the plaintiff having filed no pauper’s affidavit of his inability to pay them, a finding in favor of the defendant on the plea in abatement was demanded, and the verdict for the plaintiff was unauthorized. The court therefore erred in overruling the motion for a new trial. Judgment reversed.

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Bluebook (online)

88 S.E. 797, 18 Ga. App. 40, 1916 Ga. App. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-coast-line-railroad-v-harris-gactapp-1916.

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