Combel v. Wickey

Court of Appeals of Georgia

Combel v. Wickey

332 S.E.2d 18, 174 Ga. App. 758, 1985 Ga. App. LEXIS 1950

CourtCourt of Appeals of Georgia

DecidedMay 14, 1985

Docket70000

StatusPublished

Cited by1 cases

This text of 332 S.E.2d 18 (Combel v. Wickey) 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

Combel v. Wickey, 332 S.E.2d 18, 174 Ga. App. 758, 1985 Ga. App. LEXIS 1950 (Ga. Ct. App. 1985).

Pincite

Opinion

Benham, Judge.

This appeal follows the entry of judgment in the amount of $12,984.21 against appellant based on a jury verdict. In his sole enumeration of error, appellant maintains that the trial court erred in failing to grant his motion to dismiss the complaint as barred by the statute of limitation.

In January 1979, appellee Wickey filed a complaint in the Superior Court of Fulton County alleging malicious prosecution and assault and battery on the part of appellant Combel. The incident giving rise to the lawsuit occurred on July 28, 1978, and the criminal prosecution against appellee was dismissed on September 8, 1978. Aware of a procedural defect in his Fulton County lawsuit, appellee filed a complaint for malicious prosecution and assault and battery against appellant in the Superior Court of Cobb County on February 24, 1981. Approximately ten days later, on March 6, 1981, appellee paid the costs and voluntarily dismissed his Fulton County lawsuit. Appellant subsequently moved to dismiss the Cobb County action against him on the ground that the action was barred by the two-year statute of limitation on injuries to the person. See OCGA § 9-3-33. Appellant’s sole enumerated error on appeal is the denial of his motion to dismiss.

“[T]he payment of costs in the dismissed suit is a precondition to the filing of the second suit.” Little v. Walker, 250 Ga. 854, 855 (301 SE2d 639) (1983). Payment of costs in a dismissed action is a jurisdictional matter which cannot be waived. Tucker v. Mitchell, 252 Ga. 545 (314 SE2d 896) (1984). “[S]ince the payment of costs is a precondition to the filing of a new suit, there is no viable action presently pending, making dismissal ... for defendant appropriate. [BJecause of the failure of [appellee] to pay the costs of the first action, the statute of limitations was not tolled by OCGA § 9-2-61.” Little v. Walker, supra. Therefore, the trial court erred when it denied appellant’s motion to dismiss.

Judgment reversed.

Banke, C. J., and McMurray, P. J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Benham, Judge.

This appeal follows the entry of judgment in the amount of $12,984.21 against appellant based on a jury verdict. In his sole enumeration of error, appellant maintains that the trial court erred in failing to grant his motion to dismiss the complaint as barred by the statute of limitation.

In January 1979, appellee Wickey filed a complaint in the Superior Court of Fulton County alleging malicious prosecution and assault and battery on the part of appellant Combel. The incident giving rise to the lawsuit occurred on July 28, 1978, and the criminal prosecution against appellee was dismissed on September 8, 1978. Aware of a procedural defect in his Fulton County lawsuit, appellee filed a complaint for malicious prosecution and assault and battery against appellant in the Superior Court of Cobb County on February 24, 1981. Approximately ten days later, on March 6, 1981, appellee paid the costs and voluntarily dismissed his Fulton County lawsuit. Appellant subsequently moved to dismiss the Cobb County action against him on the ground that the action was barred by the two-year statute of limitation on injuries to the person. See OCGA § 9-3-33. Appellant’s sole enumerated error on appeal is the denial of his motion to dismiss.

“[T]he payment of costs in the dismissed suit is a precondition to the filing of the second suit.” Little v. Walker, 250 Ga. 854, 855 (301 SE2d 639) (1983). Payment of costs in a dismissed action is a jurisdictional matter which cannot be waived. Tucker v. Mitchell, 252 Ga. 545 (314 SE2d 896) (1984). “[S]ince the payment of costs is a precondition to the filing of a new suit, there is no viable action presently pending, making dismissal ... for defendant appropriate. [BJecause of the failure of [appellee] to pay the costs of the first action, the statute of limitations was not tolled by OCGA § 9-2-61.” Little v. Walker, supra. Therefore, the trial court erred when it denied appellant’s motion to dismiss.

Judgment reversed.

Banke, C. J., and McMurray, P. J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

332 S.E.2d 18, 174 Ga. App. 758, 1985 Ga. App. LEXIS 1950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/combel-v-wickey-gactapp-1985.

Opinion

Related

Cite This Page — Counsel Stack