2020 Georgia Code
Title 9 - Civil Practice
Chapter 2 - Actions Generally
Article 4 - Dismissal and Renewal
§ 9-2-62. Retraxit and Dismissal or Discontinuance Distinguished

A retraxit differs from a dismissal or discontinuance in that a retraxit is the open, public, and voluntary renunciation by the plaintiff in open court of his action or cause of action. It is positive and conclusive of the plaintiff's right of action. Where a retraxit is entered by the plaintiff and a judgment is entered thereon by the defendant, the plaintiff's right of action shall be forever gone. A dismissal or discontinuance is negative, and the plaintiff may recommence his action on the payment of costs.

(Orig. Code 1863, §§ 3378, 3379; Code 1868, §§ 3397, 3398; Code 1873, §§ 3445, 3446; Code 1882, §§ 3445, 3446; Civil Code 1895, §§ 5042, 5043; Civil Code 1910, §§ 5624, 5625; Code 1933, §§ 3-507, 3-508; Ga. L. 1967, p. 226, § 38.)

- For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act," see 3 Ga. St. B.J. 383 (1967).

ANALYSIS

• General Consideration
• Retraxit
• Dismissal or Discontinuance

Cited in Justices of Inferior Court ex rel. Selman v. Selman, 6 Ga. 432 (1849); Rumph v. Truelove, 66 Ga. 480 (1881); Cunningham v. Schley, 68 Ga. 105 (1881); Langston v. Marks, 68 Ga. 435 (1882); City of Atlanta v. Wilson, 70 Ga. 714 (1883); Rountree v. Key, 71 Ga. 214 (1883); Hart v. Hatcher & Brannon, 71 Ga. 717 (1883); Stirk v. Central R.R. & Banking, 79 Ga. 495, 5 S.E. 105 (1887); Fagan v. McTier, 81 Ga. 73, 6 S.E. 177 (1888); Seals Armour Co. v. Stocks, 100 Ga. 10, 30 S.E. 278 (1896); Sweeney v. Malloy, 107 Ga. 80, 32 S.E. 858 (1899); Wright v. Jett, 120 Ga. 995, 48 S.E. 345 (1904); Hinton v. Brewer, 129 Ga. 232, 58 S.E. 708 (1907); Cicero v. Scaife, 129 Ga. 333, 58 S.E. 850 (1907); White v. Bryant, 136 Ga. 423, 71 S.E. 677 (1911); Maril v. Boswell, 12 Ga. App. 41, 76 S.E. 773 (1912); Sewell v. Atkinson, 14 Ga. App. 386, 80 S.E. 862 (1914); Poplarville Sawmill Co. v. Driver & Co., 17 Ga. App. 674, 88 S.E. 36 (1916); Council v. Stevens, 19 Ga. App. 250, 91 S.E. 286 (1917); Brock v. City of Tallapoosa, 19 Ga. App. 793, 92 S.E. 289 (1917); Stevens v. Seaboard Air-Line Ry., 24 Ga. App. 303, 100 S.E. 731 (1919); Reynolds v. Reynolds, 153 Ga. 490, 112 S.E. 470 (1922); Tufts v. Threlkeld, 31 Ga. App. 452, 121 S.E. 120 (1923); Stinson v. Branan, 166 Ga. 752, 144 S.E. 324 (1928); May Realty Co. v. Lohman, 176 Ga. 740, 168 S.E. 772 (1933); Geer v. Hunter, 50 Ga. App. 242, 177 S.E. 820 (1934); Clark v. Newsome, 180 Ga. 97, 178 S.E. 386 (1935); Clarke v. Order of United Com. Travelers of Am., 79 F.2d 564 (5th Cir. 1935); Williford v. State, 56 Ga. App. 840, 194 S.E. 384 (1937); Bishop v. Greene, 62 Ga. App. 126, 8 S.E.2d 448 (1940); Brinson v. Kramer, 72 Ga. App. 63, 33 S.E.2d 41 (1945); Peterson v. Lott, 200 Ga. 390, 37 S.E.2d 358 (1946); Zachry v. State, 81 Ga. App. 637, 59 S.E.2d 555 (1950); Lanier v. Millsap, 101 Ga. App. 713, 115 S.E.2d 199 (1960); United States Cas. Co. v. American Oil Co., 104 Ga. App. 209, 121 S.E.2d 328 (1961); Sosebee v. Steiner, 128 Ga. App. 814, 198 S.E.2d 325 (1973); Central of Ga. Ry. v. Harbin, 132 Ga. App. 65, 207 S.E.2d 597 (1974); Couch v. Wallace, 249 Ga. 568, 292 S.E.2d 405 (1982); Omark Indus., Inc. v. Alewine, 164 Ga. App. 397, 298 S.E.2d 259 (1982).

Rules in this section governing retraxit are codified from the English common law. Harvey v. Boyd, 24 Ga. App. 561, 101 S.E. 708 (1919).

Retraxit is act by which plaintiff abandons claim and withdraws the plaintiff's suit. West v. Flynn Realty Co., 53 Ga. App. 594, 186 S.E. 753 (1936).

- When retraxit is entered by one joint plaintiff without consent of the coplaintiff, the latter may continue to prosecute the claim. Harvey v. Boyd, 24 Ga. App. 561, 101 S.E. 708 (1919).

Statement of plaintiff's attorney that plaintiff was not seeking rent but was only seeking to recover possession of premises would not amount to retraxit. West v. Flynn Realty Co., 53 Ga. App. 594, 186 S.E. 753 (1936).

Dismissal of plaintiff's action on condition that defendants pay costs is not a renunciation of plaintiff's cause of action and does not amount to a retraxit. Corbin v. Goepper, 184 Ga. 559, 192 S.E. 24 (1937).

- When decree of retraxit was rendered more than three years before action on guardian's bond was filed and more than three years after plaintiff attained majority and petition alleged no facts to relieve plaintiff of bar on the ground that the plaintiff was deterred from the plaintiff's action, the court could not do otherwise than dismiss the action. Brinsfield v. Robbins, 183 Ga. 258, 188 S.E. 7 (1936).

Dismissal or Discontinuance

Intent of section.

- Evident intent of this section is to prevent harassing renewal of action which plaintiff has, after calling upon defendant to appear in court and defend it, elected to dismiss for some reason, good or otherwise. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621, 142 S.E.2d 402 (1965).

Construction of section with O.C.G.A. §§ 9-15-3 and 9-15-11. - Former Civil Code 1910, §§ 5624 and 5625 (see now O.C.G.A. § 9-2-62) must be construed in conjunction with former Civil Code 1910, § 5991 (see O.C.G.A. § 9-15-3), prohibiting officers of court from demanding costs in any civil case until judgment, except in cases of nonresident plaintiffs and attorneys, and in conjunction with former Civil Code 1910, § 5992 (see now O.C.G.A. § 9-15-11), relating to inclusion of costs in judgment against party dismissing, etc. Dickson v. Hutchinson, 173 Ga. 644, 161 S.E. 139 (1931).

Under former Civil Code 1895, §§ 5042 and 5043 and Ga. L. 1901, p. 80, § 1 (see now O.C.G.A. §§ 9-2-62 and9-2-63), plaintiff must pay costs or file affidavit showing the plaintiff's inability to do so. Wright v. Jett, 120 Ga. 995, 48 S.E. 345 (1904); White v. Bryant, 136 Ga. 423, 71 S.E. 677 (1911); Williams v. Holland, 9 Ga. App. 494, 71 S.E. 760 (1911); Collins v. Burkhalter, 144 Ga. 695, 87 S.E. 888 (1916); Morgan v. Hutcheson, 32 Ga. App. 501, 123 S.E. 904 (1924).

- It is essential to plaintiff's right to recommence action, after a dismissal, that accrued costs in former action be paid. Gheesling v. Louisville & N.R.R., 38 Ga. App. 485, 144 S.E. 328 (1928).

When plaintiff voluntarily dismisses an action, the plaintiff may recommence the action on payment of costs. Dickson v. Hutchinson, 173 Ga. 644, 161 S.E. 139 (1931).

Payment of costs is condition precedent to right to renew original dismissed action. Grier v. Wade Ford, Inc., 135 Ga. App. 821, 219 S.E.2d 43 (1975); Perry v. Landmark Fin. Corp., 141 Ga. App. 62, 232 S.E.2d 399 (1977).

- It is only when action has been dismissed or discontinued by an act of the plaintiff that, as a condition precedent to recommencing an action, the costs of the former action must be paid or an affidavit in forma pauperis in lieu thereof be made. Dowe v. Debus Mfg. Co., 52 Ga. App. 713, 184 S.E. 362 (1936), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).

- Requirement under this section that the plaintiff pay costs upon recommencement applies to voluntary dismissal by the plaintiff, not dismissal for want of prosecution. City of Chamblee v. Village of N. Atlanta, 217 Ga. 517, 123 S.E.2d 663 (1962).

Payment of costs in former action dismissed for want of prosecution is not a prerequisite to filing another action between the same parties on the same cause of action. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621, 142 S.E.2d 402 (1965) (arguing for adoption by Supreme Court of contrary rule).

Prepayment of costs was not condition of right to proceed when party was not served in former action. Hackney v. Asbury & Co., 124 Ga. 678, 52 S.E. 886 (1906).

Before it is required, as condition precedent to filing of action, that costs which accrued in former action be paid or affidavit of indigence be made, former action must have been one pending between the parties; and when, in former action, service of the defendant was not perfected, and action was dismissed on this ground, former action was never pending. Dowe v. Debus Mfg. Co., 52 Ga. App. 713, 184 S.E. 362 (1936); Register v. Sanders, 103 Ga. App. 368, 119 S.E.2d 294 (1961).

Mere filing with the clerk without issuance of process is not institution of action, and payment of costs is not condition precedent to filing at the next term of court the identical cause of action. Register v. Sanders, 103 Ga. App. 368, 119 S.E.2d 294 (1961).

- Condition imposed on the plaintiff as to payment of costs before renewing action is in the nature of a penalty for not being ready and willing to press original action to a hearing on its merits. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621, 142 S.E.2d 402 (1965).

Full payment of costs is required and no mere arrangement whereby some collecting officer gives a receipt without payment is sufficient so far as it relates to costs due other officers or private persons. McLaurin v. Fields, 4 Ga. App. 688, 62 S.E. 114 (1908); Williams v. Holland, 9 Ga. App. 494, 71 S.E. 760 (1911); German Alliance Ins. Co. v. Hawes, 18 Ga. App. 338, 89 S.E. 527 (1916).

Charging costs to counsel is insufficient. Board of Educ. v. Kelley, 126 Ga. 479, 55 S.E. 238 (1906).

This section has no application when second action is substantially different from the one that has been brought and dismissed. Ford v. Clark, 75 Ga. 612 (1885); White v. Moss & Childs, 92 Ga. 244, 18 S.E. 13 (1893); Doody Co. v. Jeffcoat, 127 Ga. 301, 56 S.E. 421 (1907); Southern Ry. v. Rowe, 2 Ga. App. 557, 59 S.E. 462 (1907); Bunting v. Hutchinson, 5 Ga. App. 194, 63 S.E. 49 (1908).

- Prepayment of costs was not condition of right to proceed in action against trustee who was formerly sued as individual. Moore v. Bower, 6 Ga. App. 450, 65 S.E. 328 (1909).

- When partnership was sued after action against partner, prepayment of costs was not condition of right to proceed. Doody Co. v. Jeffcoat, 127 Ga. 301, 56 S.E. 421 (1907).

This section does not apply if one settles action instituted against that person. Graham v. Massengale Adv. Agency, 4 Ga. App. 826, 62 S.E. 567 (1908).

- This section, imposing penalty upon those who dismiss cases, is not applicable to cases in federal court. McIver v. Florida, C. & P.R.R., 110 Ga. 223, 36 S.E. 775, 65 L.R.A. 437 (1900); Southern Ry. v. Rowe, 2 Ga. App. 557, 59 S.E. 462 (1907).

- Unchallenged entry of dismissal, as made on docket by trial judge, must be taken as conclusive proof of dismissal. Smith v. Merchants & Farmers Bank, 22 Ga. App. 505, 96 S.E. 342 (1918).

Contention that verdict and judgment for divorce were void and should be set aside for reason that plaintiff had instituted divorce action without paying court costs accrued in action for divorce which the plaintiff had previously filed and dismissed came too late when made for the first time in a petition to set aside the verdict and judgment. Crenshaw v. Crenshaw, 198 Ga. 536, 32 S.E.2d 177 (1944).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, §§ 4, 58, 90.

- 27 C.J.S., Dismissal and Nonsuit, §§ 2, 3, 6.

- Reinstatement, after expiration of term, of case which has been voluntarily withdrawn, dismissed, or nonsuited, 111 A.L.R. 767.

Statute permitting new action after failure of original action commenced within period of limitation, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043.