Board of Education v. Kelley , 126 Ga. 479 ( 1906 )

Lumpkin, J.

1. Where a suit has been dismissed by the plaintiff, in order to bring a second suit for the same cause of action the plaintiff must pay the costs, or file a pauper affidavit stating his inability to do so. A failure in this regard furnishes ground for a plea in abatement. Civil Code, §5043; Langston v. Marks, 68 Ga. 435; Sweeney v. Malloy, 107 Ga. 83; Johnson v. Central Ry. Co., 119 Ga. 185; Wright v. Jett, 120 Ga. 995.

2. That the clerk of the superior court, on request of counsel for the plaintiff, charged the cost to such counsel, and released the plaintiff, stating that he also “had authority to collect for the sheriff as well as himself,” would not suffice. This was not an actual payment of the cost, at least as to the sheriff; nor did it appear that the clerk in fact had authority, as to the cost due the sheriff, to release the plaintiff and charge it to-the attorney. Authority to collect for the sheriff did not include authority to release the plaintiff and charge the cost to another.

Argued June 7, Decided August 13, 1906. Rehearing denied August 17, 1906.

Complaint for land. Before Judge Parker. Wáshington superior court. November 25, 1905.

G. H. Howard and E. W. Jordan, for plaintiff in error, Evans & Evans, contra.

Judgment reversed.

All the Justices concur, except Pish, 0, J,, absent, and Evans, J., disqualified.