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