Robinson v. Simpson

Quillian, Presiding Judge.

This case is controlled by Little v. Walker, 250 Ga. 854 (301 SE2d 639) wherein it was held: “We granted certiorari to answer the question whether the payment of costs in a previous action under OCGA § 9-11-41 (Code Ann. § 81A-141) is a condition precedent to filing a second suit, as indicated in Couch v. Wallace, 249 Ga. 568 (292 SE2d 405) (1982), or whether payment of costs in the prior suit may be made after the second suit is filed. We adhere to our rule in Couch v. Wallace, supra, and find that the payment of costs in the dismissed suit is a precondition to the filing of the second suit. McLanahan v. Keith, supra, is hereby overruled to the extent that it is in conflict with Couch v. Wallace, supra. We believe that this holding is required by the plain meaning of the words of the statute.”

We are not persuaded by plaintiff’s argument that since he relied on McLanahan v. Keith, 239 Ga. 94 (236 SE2d 52), to apply a converse rule retroactively would be prejudicial to him. Without question the losing side in Little v. Walker, 250 Ga. 854, supra, also relied on McLanahan and suffered harm from such reliance. The Supreme Court in construing OCGA § 9-11-41 attributed to the statute the “plain meaning” of its language. There is no valid reason to make the holding in the Little case prospective and applicable only to cases arising thereafter. See Foster v. Bowen, 253 Ga. 33 (315 SE2d 656).

Judgment affirmed.

Birdsong and Carley, JJ., concur. Decided June 22, 1984. Laurie C. Davis, for appellant. J. Al Cochran, Albert E. Jones, for appellees.