Tucker v. Mitchell , 252 Ga. 545 ( 1984 )

252 Ga. 545 (1984) 314 S.E.2d 896

TUCKER
v.
MITCHELL.

40857.

Supreme Court of Georgia.

Decided April 24, 1984. Rehearing Denied May 15, 1984.

Bovis, Kyle & Burch, Steven J. Kyle, John C. Bach, for appellant.

Johnson, Griffin & Jones, Gregory A. Griffin, Gray D. L. Smith, for appellee.

CLARKE, Justice.

Plaintiff (appellee here) dismissed an action against defendant (appellant) and on the same day filed another action against him. Plaintiff did not pay costs in the dismissed action until some three weeks after the second action was filed. Defendant did not raise plaintiff's failure to pay costs in his answer. He subsequently filed a motion to dismiss which was denied by the trial judge on the basis that defendant's failure to raise the affirmative defense of failure to pay costs in the answer and for seventeen months thereafter constituted a waiver pursuant to McLanahan v. Keith, 239 Ga. 94 (236 SE2d 52) (1977) and OCGA § 9-11-12(h)(1) (Code Ann. § 81A-112). We granted certiorari from the Court of Appeals' refusal to grant defendant's application to appeal and reverse.

We held in Little v. Walker, 250 Ga. 854 (301 SE2d 639) (1983), that our decision in Couch v. Wallace, 249 Ga. 568 (292 SE2d 405) (1982), overruled the holding of McLanahan v. Keith that failure to pay costs is a curable defect. Under our holdings in Couch v. Wallace, supra, and Little v. Walker, supra, and pursuant to the plain language of OCGA § 9-11-41(d), former Ga. Code Ann. § 81A-141(d), payment of costs in a dismissed action is not an affirmative defense but a jurisdictional matter which may never be waived. OCGA § 9-11-12(h)(3) (Code Ann. § 81A-112). There is no necessity for defendant to raise the matter at all since in the absence of prior payment of costs there is no suit pending.

Judgment reversed. All the Justices concur.