2020 Georgia Code
Title 9 - Civil Practice
Chapter 2 - Actions Generally
Article 4 - Dismissal and Renewal
§ 9-2-63. Affidavit of Indigence for Renewal of Action

Universal Citation: GA Code § 9-2-63 (2020)

When any action is dismissed or discontinued and the plaintiff desires to recommence his action, if he will make and file with his complaint, summons, or other proceedings an affidavit in writing stating that he is advised and believes that he has good cause for recommencing his action and that because of his indigence he is unable to pay the costs that have accrued in the case, he shall have the right to renew the action without payment of the cost as aforesaid.

(Ga. L. 1901, p. 80, § 1; Civil Code 1910, § 5626; Code 1933, § 3-509.)

Cross references.

- Constitutional guarantee of access to courts, Ga. Const. 1983, Art. I, Sec. I, Para. XII.

Filing of affidavit of indigence generally, § 9-15-2.

JUDICIAL DECISIONS

It is condition precedent to renewal of action after voluntary dismissal that plaintiff pay costs or file affidavit of indigence before or at time of renewing the action. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621, 142 S.E.2d 402 (1965).

Payment of costs prerequisite only when first action is dismissed by act of plaintiff.

- It is only when action has been dismissed or discontinued and dismissal or discontinuance is by act of plaintiff that, as condition precedent to recommencing action, costs of 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).

Service must have been had in first action.

- Before it is required as condition precedent to filing of action that costs which accrued in former action between same parties for same cause be paid or an affidavit in forma pauperis 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 an action was dismissed on this ground, the former action was never pending. 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); Register v. Sanders, 103 Ga. App. 368, 119 S.E.2d 294 (1961).

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

No further affidavit of indigence when affidavit filed in prior action.

- Provision in O.C.G.A. § 9-15-2(a) that an affidavit of indigence relieves a party of "any deposit, fee, or other cost" requires that, when a plaintiff files such an affidavit upon bringing an action, takes a voluntary dismissal, then seeks to renew the action, no payment of accrued costs and no further affidavit of indigence are required for the filing of the renewal action. McKenzie v. Seaboard Sys. R.R., 173 Ga. App. 402, 326 S.E.2d 502 (1985).

Two actions must be identical as to parties and causes of action before this section applies. May Realty Co. v. Lohman, 176 Ga. 740, 168 S.E. 772 (1933).

Affidavit under this section must be filed at time of commencement of second action. Johnson v. Central of Ga. Ry., 119 Ga. 185, 45 S.E. 988 (1903).

Affidavit in this section is considered part of petition with which it is filed and must be filed with petition at time of its filing. Southern Grocery Stores, Inc. v. Kelly, 52 Ga. App. 551, 183 S.E. 924 (1936).

Timing of filing of petition and affidavit.

- When affidavit and petition appear separately and are not physically attached to each other, but are at the same time filed with the court clerk, filing of the affidavit is in compliance with this section. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529, 173 S.E. 196 (1934).

Affidavit need not be attached to the petition in order to be considered filed therewith. North Am. Accident Ins. Co. v. Scarborough, 49 Ga. App. 833, 176 S.E. 671 (1934).

Amendment of venue statement in affidavit.

- When state and county in heading of venue of affidavit made under this section were by mistake incorrectly stated, and it appeared from the jurat that the affidavit was actually signed and sworn to in the proper jurisdiction, the judge did not err in allowing the affidavit to be amended. Southern Grocery Stores, Inc. v. Kelly, 52 Ga. App. 551, 183 S.E. 924 (1936).

Affidavit by next friend.

- Affidavit in forma pauperis in renewed action brought by minor through the minor's next friend should be made and filed by the next friend. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529, 173 S.E. 196 (1934).

This section has no application when former action was pending in federal court. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529, 173 S.E. 196 (1934).

Action against partnership composed of two partners was not subject to abatement when former action on same account had been brought by the plaintiff against one partner as an individual, which action had been dismissed, and the plaintiff had failed to pay costs of the action or file an affidavit of indigence before institution of an action against the partnership. May Realty Co. v. Lohman, 176 Ga. 740, 168 S.E. 772 (1933).

Cited in Wright v. Jett, 120 Ga. 995, 48 S.E. 345 (1904); Seaboard Air-Line Ry. v. Randolph, 126 Ga. 238, 55 S.E. 47 (1906); Holmes v. Huguley, 136 Ga. 758, 72 S.E. 38 (1911); City of Manchester v. Beavers, 38 Ga. App. 337, 144 S.E. 11 (1928); Young v. Western & A.R.R., 43 Ga. App. 257, 158 S.E. 464 (1931); Dickson v. Hutchinson, 173 Ga. 644, 161 S.E. 139 (1931); Underwood Elliott Fisher Co. v. Evans, 53 Ga. App. 673, 186 S.E. 858 (1936); Quinn v. O'Neal, 58 Ga. App. 628, 199 S.E. 359 (1938); Brinson v. Kramer, 72 Ga. App. 63, 33 S.E.2d 41 (1945); Zachry v. State, 81 Ga. App. 637, 59 S.E.2d 555 (1950); Davis v. Holt, 108 Ga. App. 280, 132 S.E.2d 796 (1963); Sosebee v. Steiner, 128 Ga. App. 814, 198 S.E.2d 325 (1973); Bell v. Figueredo, 190 Ga. App. 163, 378 S.E.2d 475 (1989).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, § 97 et seq.

C.J.S.

- 20 C.J.S., Costs, §§ 146, 147, 426. 27 C.J.S., Dismissal and Nonsuit, §§ 13, 62, 89.

ALR.

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

Nolle prosequi or discontinuance of prosecution in one court and instituting new prosecution in another court of coordinate jurisdiction, 117 A.L.R. 423.

Right to sue or appeal in forma pauperis as dependent on showing of financial disability of attorney or other nonparty or nonapplicant, 11 A.L.R.2d 607.

What costs or fees are contemplated by statute authorizing proceeding in forma pauperis, 98 A.L.R.2d 292.

CHAPTER 3 LIMITATIONS OF ACTIONS Article 1 General Provisions.
  • 9-3-1. Limitations against the state.
  • 9-3-2. Limitations against municipalities.
  • 9-3-3. Applicability of limitation statutes; equitable bar.
  • 9-3-4. Limitations as to trusts [Repealed].
  • 9-3-5. Beneficiaries barred along with trustee.
  • 9-3-6. Applicability of limitations to setoffs.
  • 9-3-7. When mutual accounts postpone running of limitations.
Article 2 Specific Periods of Limitation.
  • 9-3-20. Actions on foreign judgments.
  • 9-3-21. Proceedings to set aside judgments [Repealed].
  • 9-3-22. Enforcement of rights under statutes, acts of incorporation; recovery of wages, overtime, and damages.
  • 9-3-23. Sealed instruments.
  • 9-3-24. Actions on simple written contracts; exceptions.
  • 9-3-25. Open accounts; breach of certain contracts; implied promise; exception.
  • 9-3-26. Other actions on contracts; exception.
  • 9-3-27. Actions against fiduciaries.
  • 9-3-28. Actions by informers.
  • 9-3-29. Breach of restrictive covenant.
  • 9-3-30. Trespass or damage to realty.
  • 9-3-30.1. Actions against manufacturers or suppliers of asbestos or material containing asbestos.
  • 9-3-30.2. Actions against persons engaged in land surveying.
  • 9-3-31. Injuries to personalty.
  • 9-3-32. Accrual of actions for recovery of personal property or loss of timber; damages for conversion or destruction.
  • 9-3-33. Injuries to the person; injuries to reputation; loss of consortium; exception.
  • 9-3-33.1. Actions for childhood sexual abuse.
  • 9-3-34. Article not applicable to malpractice.
  • 9-3-35. Actions by creditor seeking relief under Uniform Voidable Transactions Act.
  • 9-3-36. (Effective January 1, 2021) Limitations on claims arising before decedent's death.
Article 3 Limitations on Recovery for Deficiencies Connected with Improvements to Realty and Resulting Injuries. Article 4
  • 9-3-50. Definitions.
  • 9-3-51. Limitations on recovery for deficiency in planning, supervising, or constructing improvement to realty or for resulting injuries to property or person.
  • 9-3-52. Limitation not available to owner or tenant.
  • 9-3-53. Period of limitations not extended.
Limitations for Malpractice Actions. Article 5
  • 9-3-70. "Action for medical malpractice" defined.
  • 9-3-71. General limitation.
  • 9-3-72. Foreign objects left in body.
  • 9-3-73. Certain disabilities and exceptions applicable.
  • 9-3-74. Barred actions not revived.
Tolling of Limitations. Article 6
  • 9-3-90. Individuals under disability or imprisoned when cause of action accrues.
  • 9-3-91. Disabilities suffered after accrual of cause.
  • 9-3-92. Five-year tolling for unrepresented estate - In favor of estate.
  • 9-3-93. Five-year tolling for unrepresented estate - In favor of creditors.
  • 9-3-94. Removal of defendant from state.
  • 9-3-95. Disability of one or more with joint right of action; effect of severability.
  • 9-3-96. Tolling of limitations for fraud of defendant.
  • 9-3-97. Limitations extended for counterclaims and cross-claims.
  • 9-3-97.1. Tolling of limitations for medical malpractice.
  • 9-3-98. Applicability of article.
  • 9-3-99. Tolling of limitations for tort actions while criminal prosecution is pending.
Revival. Cross references. - Limitation of action which is renewed after discontinuance or dismissal, § 9-2-61.
  • 9-3-110. New promise to be in writing.
  • 9-3-111. Written promise following discharge in bankruptcy.
  • 9-3-112. Payment or written acknowledgment equivalent to new promise.
  • 9-3-113. Effect of new promise.
  • 9-3-114. Whom new promise by joint contractor binds.
  • 9-3-115. Effect of new promise by partner.

Laches, § 23-1-25.

Time limitation on enforcement of right to workers' compensation, § 34-9-82.

Time limitation on bringing of action against rural telephone cooperatives, § 46-5-97.

Time limitation on bringing of actions by common carriers for recovery of charges, § 46-9-5.

Time limitation on bringing of action for refund of taxes or fees erroneously or illegally assessed and collected, § 48-2-35.

ARTICLE 1 GENERAL PROVISIONS

JUDICIAL DECISIONS

Statutes of limitations are intended to embrace all causes of action not specially excepted from operations and should not be so construed as to defeat that object. Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 245 S.E.2d 297 (1978).

Courts cannot engraft on statutes of limitations exceptions not contained therein, however inequitable enforcement of statute, without such exceptions, may be. Harrison v. Holsenbeck, 208 Ga. 410, 67 S.E.2d 311 (1951).

Except as provided therein, statutes of limitations should not be evaded, as they are considered beneficial and resting in principles of sound public policy. Harrison v. Holsenbeck, 208 Ga. 410, 67 S.E.2d 311 (1951).

Statute of limitations begins to run on any given claim on the date claim accrues, in other words, on the date that action on the claim can first be brought. Hoffman v. Insurance Co. of N. America, 241 Ga. 328, 245 S.E.2d 287 (1978).

Period within which action may be brought is measured from date upon which the plaintiff could have successfully maintained the action. Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 273 S.E.2d 16 (1980).

Bar of statute of limitations is a personal privilege and is not available to the defendant unless specially asserted. Burch v. Wofford-Terrell Co., 52 Ga. App. 685, 184 S.E. 419 (1936).

Use of state limitations when foreign substantive law controls.

- In this state, statutes of limitations are remedial and procedural, rather than substantive; hence, courts in this state apply state statutes of limitations even when substantive law of another jurisdiction controls. Cash v. Armco Steel Corp., 462 F. Supp. 272 (N.D. Ga. 1978).

Application of state limitations to federal actions.

- When Congress creates a federal right without prescribing a period for enforcement, the applicable period of limitations is that which the state itself would enforce had the action seeking similar relief been brought in a court of that state. United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973).

Violation of federal antitrust laws.

- In cases involving violation of antitrust statutes, Georgia statutes of limitations apply; federal authorities, however, determine the question as to when cause of action accrued. Service Stages, Inc. v. Greyhound Corp., 170 F. Supp. 482 (N.D. Ga. 1959), aff'd, 268 F.2d 739 (5th Cir. 1959).

Right of purchaser to plead statute against mortgagee.

- One who purchases land covered by a mortgage acquires such a privity of relationship to the debtor as to entitle the purchaser to plead statute of limitations against mortgagee, so far as the subjection of the land itself is sought, whether the mortgagor pleads it or omits to plead it. Krauss v. National Bank, 184 Ga. 456, 192 S.E. 12 (1937).

RESEARCH REFERENCES

ALR.

- Depreciation in market value of land as affecting the general rule that cause of action arises when injury is inflicted, and not when cause is created, 3 A.L.R. 682.

Statutory or contractual limitation where presumption of death of the insured from seven years' absence is relied upon, 34 A.L.R. 91; 61 A.L.R. 686; 119 A.L.R. 1308.

"De minimis non curat lex," 44 A.L.R. 168.

Reasonableness of period allowed for existing causes of action by statute reducing period of limitation, 49 A.L.R. 1263; 120 A.L.R. 758.

Right of foreign corporation to plead statute of limitations, 59 A.L.R. 1336; 122 A.L.R. 1194.

State statute of limitations as affecting action or proceeding by federal government or its officials, 61 A.L.R. 412.

Construction of statutes of limitation as regards their retrospective application to causes of action already barred, 67 A.L.R. 297.

Construction, application, and effect of statute of forum which admits bar of statute of limitation of other state, 75 A.L.R. 203; 149 A.L.R. 122.

When statute of limitations commences to run against action for breach of warranty on sale of chattels, 75 A.L.R. 1086.

Applicability of statutes of limitation to defenses, 78 A.L.R. 1074.

Anticipatory breach of executory contract as starting running of statute of limitations, 94 A.L.R. 455.

Applicability of statute of nonclaim or limitation statute as between surviving partner and estate of deceased partner, 96 A.L.R. 441; 157 A.L.R. 1114.

Bar of statute of limitations against debt secured by pledge as affecting rights and remedies in respect of the subject of the pledge, 103 A.L.R. 430; 137 A.L.R. 928.

Right of subrogation in respect of encumbrances paid by third person under mistake or in order to protect his interest in property as affected by statute of limitations or laches, 103 A.L.R. 1182.

Time limitation as to filing of claims against insolvent as affected by excuses, and the nature of such excuses, 109 A.L.R. 1404.

Liability of automobile liability or indemnity insurer as affected by statute of limitations against action based on insured's tort, 111 A.L.R. 1069.

Acceleration provision in respect of special assessments as affecting running of statute of limitations, 113 A.L.R. 1168.

Amendment of complaint or declaration by setting up death statute after expiration of period to which action is limited by the death statute or by the statute of limitations, 134 A.L.R. 779.

Running of statute of limitations as affected by uncertainty as to existence of a cause of action because of delay in settling or determining a matter of general or governmental concern upon which it depends, 135 A.L.R. 1339.

When statute of limitations commences to run against action by principal to recover money or other property from agent, 141 A.L.R. 361.

Amendment of pleading after limitation period changing from allegation of negligence to allegation of fraud, or vice versa, as stating a new cause of action, 141 A.L.R. 1363.

Employer's breach of agreement regarding discharge or restoration after layoff of employee not employed for a fixed term, as creating a single cause of action, or repeated causes of action, as regards statute of limitation or the right to bring successive actions, 142 A.L.R. 797.

Validity and construction of war enactment in United States suspending operation of statute of limitations, 143 A.L.R. 1519.

Limitation applicable to cause of action created by statute of another state which allows a longer period than the statute of the forum, 146 A.L.R. 1356.

Right of action to recover from owner taxes which plaintiff, by mistake, paid upon the former's property, as subject to statutes of limitation, 147 A.L.R. 457.

Applicability to limitation prescribed by policy of insurance, or by special statutory provision in relation to insurance, of provisions of statute of limitations extending time or fixing time when action deemed commenced, 149 A.L.R. 483.

Public records as constructive notice as regards action predicated upon fraudulent misrepresentation or concealment, so as to start the running of the statute of limitations against the bringing of such action, 152 A.L.R. 461.

Mandamus as subject to statute of limitations, 155 A.L.R. 1144.

Statute of limitations or presumption of payment from lapse of time as ground for affirmative relief from debt or lien, 164 A.L.R. 1387.

Amendment after limitation period of allegations of negligence as stating new cause of action, 171 A.L.R. 1087.

Validity of contractual waiver of statute of limitations, 1 A.L.R.2d 1445.

Limitation period as affected by requirement of notice or presentation of claim against governmental body, 3 A.L.R.2d 711.

Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249.

Reviving, renewing, or extending judgment by order entered after expiration of statutory limitation period on motion made or proceeding commenced within such period, 52 A.L.R.2d 672.

Construction, application, and effect, with reference to statutory causes of action, of statute of forum which admits bar of statute of limitations of other state, 67 A.L.R.2d 216.

Right of creditor to set up statute of limitations against other creditors of his debtor, 71 A.L.R.2d 1049.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

General appearance as avoiding otherwise effective bar of statute of limitations, 82 A.L.R.2d 1200.

Federal court's adoption of state period of limitation, in action to enforce federally created right, as including related or subsidiary state laws or rules as to limitations, 90 A.L.R.2d 265.

Extraterritorial operation of limitation applicable to statutory cause of action, other than by reason of "borrowing statute,", 95 A.L.R.2d 1162.

Validity of contractual time period, shorter than statute of limitations, for bringing action, 6 A.L.R.3d 1197.

Statute of limitations: effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued, 28 A.L.R.3d 1141.

Fiduciary or confidential relationship as affecting estoppel to plead statute of limitations, 45 A.L.R.3d 630.

Delay caused by other litigation as estopping reliance on statute of limitations, 45 A.L.R.3d 703.

Validity of contractual provision establishing period of limitations longer than that provided by state statute of limitations, 84 A.L.R.3d 1172.

Statute of limitations as bar to arbitration under agreement, 94 A.L.R.3d 533.

Statutes of limitation: actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability, 12 A.L.R.4th 866.

When statute of limitations commences to run on automobile no-fault insurance personal injury claim, 36 A.L.R.4th 357.

What constitutes rejection of claim against estate to commence running of statute of limitations applicable to rejected claims, 36 A.L.R.4th 684.

Which statute of limitations applies to efforts to compel arbitration of a dispute, 77 A.L.R.4th 1071.

Time when cause of action accrues for civil action under state antitrust, monopoly, or restraint of trade statutes, 90 A.L.R.4th 1102.

What statute of limitations applies to action to compel arbitration pursuant to § 301 of Labor Management Relations Act (29 USCS § 185), 96 A.L.R. Fed. 378.

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