Hiley v. McGoogan, 70959

• Decision Date: 28 January 1986
• Docket Number: No. 70959,70959
• Citation: 177 Ga.App. 809,341 S.E.2d 461
• Parties: HILEY v. McGOOGAN et al.
• Court: Georgia Court of Appeals

Page 461

341 S.E.2d 461

177 Ga.App. 809

HILEY v. McGOOGAN et al.

No. 70959.

Court of Appeals of Georgia.

Jan. 28, 1986.

Rehearings Denied Feb. 14, 1986.

Certiorari Denied March 5, 1986.

C. Edwin Rozier, Rudolph J. Chambless, Waycross, for appellant.

Terry A. Dillard, J. Baker McGee III, W. Grady Pedrick, Waycross, for appellees.

POPE, Judge.

Plaintiff Ethel Hiley, administratrix of the estate of Bennie Hiley, pursuant to OCGA § 9-2-61 brought this renewal of a medical malpractice action against defendants M.T. McGoogan and the Hospital Authority of Ware County. The trial court granted defendants' motions for summary judgment based upon plaintiff's asserted failure to pay all accrued costs prior to the filing of this renewal (see OCGA § 9-11-41(d)), thus failing to toll the applicable statute of limitation. Plaintiff appeals.

The record shows that this action was originally brought in Ware Superior Court within the two-year statute of limitation provided by OCGA § 9-3-71(a). The case was voluntarily dismissed without prejudice on July 18, 1984 but was renewed on October 5, 1984. In support of their summary judgment motions, defendants presented the affidavit of the Clerk of Ware Superior Court to the effect that costs of $35 were due as of the date of dismissal and that those costs had not been paid. Plaintiff countered with an affidavit also of the clerk who stated that "when a case is dismissed in the Superior Court the dismissal is filed and it is then ascertained if costs are owed in the case. In the event costs are owed, a bill is prepared and sent to the responsible person and the file, with a copy of the bill, is placed in a 'pending file' until such time as the costs are paid. At such time as the costs are paid the file is placed in a 'disposed file' and recorded upon the minutes of the Superior Court. Cases are not placed upon the minutes of the Superior Court if any costs are due. In the event the file remains in the pending file and the costs are not paid, the case is redocketed on the court calendar for announcement and payment of costs." The clerk averred that within 30 days of the subject voluntary dismissal, the case was placed upon the minutes of the court, thus concluding the case and showing that no costs were due. Further, the case was not returned to the calendar for announcement nor was any bill of costs sent to any person in the case. The clerk also stated that subsequent to the renewal of this action, counsel for defendant Hospital Authority came to her office and requested that she pull the originally filed action and ascertain whether or not any costs were due on the case. The deputy clerk was instructed to pull the case from the disposed files and run a cost check on the case. This procedure resulted in the discovery of a balance due for costs of $35. The clerk closed by noting that the "disposed file" of this case would not have been pulled except at the instance of counsel for the Hospital Authority. The affidavit of the deputy clerk substantially corresponds to that of the clerk. She also averred that from her records and files at the time the case was filed in the "disposed files" and placed upon the minutes of the court, there were no costs due. Further, there never has been and presently is not a delinquent bill of costs in the originally filed case.

Counsel for plaintiff, a member of the Waycross Bar since April 1955, also filed an affidavit detailing his actions in regard to the dismissal and subsequent renewal of the subject action. He stated that prior to filing the renewal he examined the records of the clerk of court to "double check" the date of the dismissal. The records indicated that the case had indeed been dismissed and spread upon the minutes of the court. He further stated: "At the time of the filing of the present action, affiant had received no cost bill from the Clerk's Office and pursuant to my investigation of the records, there appeared to be no costs due ... Affiant further states that I examined the Execution Dockets of the Clerk's Office of the Superior Court and have found no execution issued against the plaintiff in the main case or myself for any cost due. I have not received a bill for any costs nor has the Clerk's Office issued any execution against me for court costs in [the previously dismissed case.] Affiant further states that I am familiar with the procedures of the Clerk's Office in connection with costs and am aware that a case is not dismissed and spread upon the minutes of the Superior Court until all costs have been paid. I am aware that in the event costs are due, the case is placed in a 'pending file' and not a 'dead' or 'disposed file.' My examination of the records prior to the filing of this complaint showed that no costs were due and payable."

"OCGA § 9-11-41(d) provides that: 'If a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed.' Since Little v. Walker, 250 Ga. 854 (301 S.E.2d 639) [ (1983) ], this language has been clearly construed to mean that payment of the costs in the original action is a precondition to the filing of a new suit. [Cits.]" Daugherty v. Norville Indus., 174 Ga.App. 89, 329 S.E.2d 202 (1985). However, in Daugherty the plaintiff's attorney inquired of the clerk of court as to the amount of costs due upon voluntary dismissal of the original actions and was informed that no costs were due. Upon being later informed that costs were owed, plaintiffs' attorney immediately paid same. In light of these circumstances, the court held: "We decline to attribute to the legislature any intent, under the particular facts and circumstances of the cases sub judice, to foreclose plaintiffs from pursuing their respective claims. [Cit.] Such a result would be unconscionable and a provision to avoid such a result should be implied to exist within the statute so as to insure against a failure of justice. In our view, the costs which must be paid pursuant to OCGA § 9-11-41(d), as a precondition to the filing of a new suit, do not include costs unknown to plaintiff after a good faith inquiry. Of course, any unpaid costs in a previous action which are unknown after a good faith inquiry but discovered after the filing of a new action must be paid within a reasonable time in order to preserve jurisdiction." Id. at 91, 329 S.E.2d 202. See also Keramidas v. Dept. of Human Resources, 147 Ga.App. 820, 821, 250 S.E.2d 560 (1978), and U.S. Cas. Co. v. American Oil Co., 104 Ga.App. 209, 211, 121 S.E.2d 328 (1961), wherein the court noted that Code Ann. § 3-808 (now OCGA...