Foster v. Bowen, 40872

• Decision Date: 30 May 1984
• Docket Number: No. 40872,40872
• Citation: 253 Ga. 33,315 S.E.2d 656
• Parties: FOSTER v. BOWEN et al.
• Court: Georgia Supreme Court

Page 656

315 S.E.2d 656

253 Ga. 33

FOSTER v. BOWEN et al.

No. 40872.

Supreme Court of Georgia.

May 30, 1984.

Robert Lee Todd, IV, Greenville, for William M. Foster.

Douglas L. Breault, Columbus, for Theodore C. Bowen et al.

MARSHALL, Presiding Justice.

The appellant-plaintiff brought suit against the appellees-defendants in the Harris Superior Court in May of 1977. In this suit, the appellant alleged breach of an agreement entered into in 1971, under which the plaintiff was to have received a 55% ownership interest in a nursing home in Waverly Hall, Georgia. The appellant sought damages and various forms of equitable relief.

On July 10, 1981, the appellant voluntarily dismissed that suit. The appellant refiled the suit in the Meriwether Superior Court on August 12, 1981, without first paying costs in the Harris Superior Court. On September 9, the appellees filed a motion to dismiss on the ground that the costs in the previous action had not been paid. On September 16, the appellant paid these costs. Subsequently, on November 3, 1983, a hearing was held on the appellees' motion to dismiss. The motion to dismiss was granted by order entered on December 21, 1983. This appeal follows.

In this appeal, the appellant's primary argument is that this court's decision in McLanahan v. Keith, 239 Ga. 94, 236 S.E.2d 52 (1977), which abolished the "no cure" rule, should govern the present case. However, our later decision in Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983), overruled McLanahan's abolition of the "no cure" rule, based on our intervening decision in Couch v. Wallace, 249 Ga. 568, 292 S.E.2d 405 (1982). The appellant's argument is that under McLanahan he had a vested right to reinstate his Meriwether County action by paying costs in the Harris County action, so long as this was done within six months after the latter action was filed. We disagree with this argument.

We hold that although the "no cure" rule most assuredly affects the assertion of substantive rights, it nonetheless falls within the category of procedural law. The rule is that there are no vested rights in any course of procedure. Pritchard v. Savannah etc. R. Co., 87 Ga. 294, 299, 13 S.E. 493 (1891); Scott v. Oxford, 105 Ga.App. 301, 304, 124 S.E.2d 420 (1962); accord Enger v. Erwin, 245 Ga. 753, 267 S.E.2d 25 (1980) and cits. And, when no vested rights are involved, the general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation. Beecher v. Dept. of Transportation, 151 Ga.App. 355, 356, 259 S.E.2d 638 (1979) and cits. Thus, we hold that the appellant had no vested right in McLanahan's evanescent abolition of the "no cure" rule. If the appellant was correct in his argument that he did have such a vested right, then it would have had to have been held that the plaintiffs in Little v. Walker, supra, had a vested right under McLanahan to renewal of their suit by paying the costs of the earlier suit after the renewal action was filed.

In Little v. Walker, supra, it was specifically held that, "The payment of costs in the dismissed suit is a pre-condition to the filing of the...