Rheem Manufacturing Company v. Hutcheson

Full title: RHEEM MANUFACTURING COMPANY v. HUTCHESON

Court: Court of Appeals of Georgia

Date published: Apr 12, 1966

149 S.E.2d 157 (Ga. Ct. App. 1966)

149 S.E.2d 157

Opinion

41956.

ARGUED APRIL 5, 1966.

DECIDED APRIL 12, 1966. REHEARING DENIED APRIL 29, 1966.

Refiling of action; costs, etc. Fulton Civil Court. Before Judge Camp.

Long, Weinberg Ansley, Gregg Loomis, for appellant.

Nall, Miller, Cadenhead Dennis, Lynn A. Downey, for appellee.

NICHOLS, Presiding Judge.

1. Where a petition is voluntarily dismissed by the plaintiff and before refiling the plaintiff obtains a statement from the clerk of the court as to the costs due and pays the amount of costs as shown on such statement, a plea in abatement will not lie to such refiled action because the clerk made a mistake in figuring such costs. See McDonald v. Wimpy, 204 Ga. 617 ( 50 S.E.2d 347); Whitsett v. Hester-Bowman Enterprises, Inc., 94 Ga. App. 78 ( 93 S.E.2d 788).

2. In the present case the plaintiff paid the costs (which the clerk of the court said were due) accruing from the filing of the first petition which he voluntarily dismissed before the second petition was filed, and the trial court did not err in overruling the defendant's plea in abatement based upon the ground that all the costs arising from the filing of the first petition had not been paid.

Judgment affirmed. Hall and Deen, JJ., concur.

ARGUED APRIL 5, 1966 — DECIDED APRIL 12, 1966 — REHEARING DENIED APRIL 29, 1966 — CERT. APPLIED FOR.