Briеfly, the facts of this case are as follows: Respondents brought suit against petitioners in Elbert County in October, 1973, seeking damаges for trespass; respondents voluntarily dismissed that suit in September/ 1975, and without first paying all the accrued costs in that suit, refiled the suit in Fulton County the same day; three days before the expiration of the six month period for refiling allowed by Code Ann. § 3-808, rеspondents "suggested” to the trial court that, due to their failure to *95 pay the costs of the prior suit as required by Code Ann. § 81A-141 (d), thе court lacked "jurisdiction” of the action and should dismiss the action "sua sponte” under the authority of Code Ann. § 81A-112 (h) (3); taking the suggеstion, the court dismissed the action, without prejudice, and without giving the petitioners notice or an opportunity to be heard; the respondents then immediately paid the costs in both suits and again filed the suit, for the third time, in Fulton County.
On appeаl brought by petitioners, the Court of Appeals affirmed
(McLanahan v. Keith,
Code Ann. § 81A-112 (h) (3) provides: "Whеnever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter,
the court shall dismiss the action.” (Emphasis supplied.) The Court of Appeals held that the plaintiff’s failure to comply with Code Ann. § 81A-141 (d) deprived the court of the "power to proceed.” The statement quoted by the Court of Appeals from this court’s opinion in
O’Kelley v. Alexander,
Subject matter jurisdiction has a unique attribute. It can never be waived. Failure to pay сosts, lack of jurisdiction over the person, improper venue, and in *96 sufficiency of process are all defеnses available to a defendant which do not reach the merits. However all of these defenses are waived if not timely raised. Code Ann. § 81A-112 (h) (1).
Code Ann. § 81A-112 (h) (3) deals solely with the duty of the trial court to dismiss an action when it appears that subject-matter jurisdiction, a nonwaivable defect which would render any judgment in the action void, is absent. It does not authorize a triаl court judge to enforce, over the objection of the defendant, a waivable defense held by that defendаnt. This was error. The question remains, was the error harmful? We think not.
It is clear that what the respondents were attempting to gain by effecting an involuntary dismissal was avoid the provision of Code Ann. § 3-808 which provides that: "this privilege of dismissal and renewal shall be exercised only once under this section.” Respondents feared that a voluntary dismissal of their second suit would tаke them outside of the protection from the statute of limitation afforded by this Code section. On the other hand they whеre faced with the fact that the six-month grace period was about to expire, and they feared that immediately after its expiration they would face a motion to dismiss for failure to pay costs. They would then get their involuntary dismissal, but tоo late to refile within the grace period. At the heart of the respondent’s plight, was the rule that the failure to pay costs in a previous action is fatal to the plaintiffs cause of action, if timely objection is raised. See
Wright v. Jeff,
By requiring a party to dismiss his present action, pay *97 the costs in that action and all previous actions, and then refile the same action again, the "no cure” rule places an unnecessary burden on оur overcrowded trial courts; it delays the determination of an action on its merits; and it increases the expense, to both courts and litigants. It is not possible to construe Code Ann. § 81A-141 (d) so as to "secure the just, speedy, and inexpensive dеtermination of every action” and find that the "no cure” rule is still viable. Therefore, the holding to this effect, in Sparks v. Sparks, supra, is disapproved and will not be followed. We believe that, upon timely objection by the defendant that the costs in a prеvious action have not been paid, the trial court may stay the proceedings in the pending action for a reasonable time to allow the plaintiff to pay the costs of the previous action. Upon payment of suсh costs, there is no reason why the pending action should not then be allowed to proceed to a determinаtion of the case.
Because the "no cure” rule is no longer viable, there was nothing in the dismissal which could have hаrmed the petitioners. Had no dismissal been entered, respondents could have cured their failure to pay the costs if a timely objection was raised, and the petitioners would be facing the very same lawsuit as they are presently facing, on the same footing as regards the statute of limitation. The dismissal therefore, although error, was harmless and thе judgment of the Court of Appeals must be affirmed.
Judgment affirmed.