2021 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 6 - Trials
§ 9-11-41. Dismissal of Actions; Recommencement Within Six Months

1. Voluntary dismissal; effect:
   1. BY PLAINTIFF; BY STIPULATION. Subject to the provisions of subsection (e) of Code Section 9-11-23, Code Section 9-11-66, and any statute, an action may be dismissed by the plaintiff, without order or permission of court:
      1. By filing a written notice of dismissal at any time before the first witness is sworn; or
      2. By filing a stipulation of dismissal signed by all parties who have appeared in the action.
   2. BY ORDER OF COURT. Except as provided in paragraph (1) of this subsection, an action shall not be dismissed upon the plaintiff's motion except upon order of the court and upon the terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him or her of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court.
   3. EFFECT. A dismissal under this subsection is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.
2. Involuntary dismissal; effect thereof. For failure of the plaintiff to prosecute or to comply with this chapter or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine the facts and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. The effect of dismissals shall be as follows: (1) A dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits; and (2) Any other dismissal under this subsection and any dismissal not provided for in this Code section, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, does operate as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise.
3. Dismissal of counterclaim, cross-claim, or third-party claim. This Code section also applies to the dismissal of any counterclaim, cross-claim, or third-party claim.
4. Cost of previously dismissed action. If a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed.
5. Dismissal for want of prosecution; recommencement. Any action in which no written order is taken for a period of five years shall automatically stand dismissed, with costs to be taxed against the party plaintiff. For the purposes of this Code section, an order of continuance will be deemed an order. When an action is dismissed under this subsection, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.

(Ga. L. 1966, p. 609, § 41; Ga. L. 1982, p. 784, §§ 1, 2; Ga. L. 1984, p. 597, § 2; Ga. L. 1985, p. 546, § 1; Ga. L. 1986, p. 816, § 1; Ga. L. 2003, p. 820, § 4.)

- Dismissal and renewal of actions generally, § 9-2-60 et seq.

Dismissal, Uniform Superior Court Rules, Rule 14.

Dismissal of actions in probate court, Uniform Rules for the Probate Courts, Rule 12.

- Ga. L. 2003, p. 820, § 9, not codified by the General Assembly, provides that this Act "shall apply to all civil actions filed on or after July 1, 2003."

- For provisions of Federal Rules of Civil Procedure, Rule 41, see 28 U.S.C.

- For article comparing sections of the Georgia Civil Practice Act with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article surveying Georgia cases dealing with domestic relations from June 1977 through May 1978, see 30 Mercer L. Rev. 59 (1978). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990). For annual survey of trial practice and procedure, see 56 Mercer L. Rev. 433 (2004). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey on trial practice and procedure, see 65 Mercer L. Rev. 277 (2013). For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For note discussing the requirement that an adjudication be on the merits for the principles of res judicata to apply, see 11 Ga. L. Rev. 929 (1977). For note, "Dismissal with Prejudice for Failure to Prosecute: Visiting the Sins of the Attorney upon the Client," see 22 Ga. L. Rev. 195 (1987). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 28 (2003). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).

ANALYSIS

• General Consideration
• Voluntary Dismissal
• Involuntary Dismissal
• Costs of Previous Action
• Automatic Dismissal for Want of Prosecution

OPINIONS OF THE ATTORNEY GENERAL

Condemnation proceedings.

- Civil Procedure Act (see O.C.G.A. Ch. 11, T. 9) was controlling in the declaration of taking method of condemnation, and Ga. L. 1967, p. 557, § 1 (see now O.C.G.A. § 9-2-60) was controlling in an appeal from an award of assessors or a special master. 1970 Op. Att'y Gen. No. 70-138.

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Costs, § 95. 23 Am. Jur. 2d, Depositions and Discovery, § 227 et seq. 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, §§ 7 et seq., 95 et seq.

- 27 C.J.S., Dismissal and Nonsuit, § 1 et seq. 35B C.J.S., Federal Civil Procedure, § 754 et seq. 88 C.J.S., Trial, §§ 499, 500.

- Voluntary dismissal of replevin action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 2 A.L.R. 200.

Right to voluntary dismissal of suit without prejudice before trial as affected by filing counterclaim after motion for dismissal, 71 A.L.R. 1001.

Right of defendant to take voluntary dismissal of cross-bill or counterclaim, 74 A.L.R. 587.

Stage of trial at which plaintiff may take voluntary nonsuit, dismissal, or discontinuance, 89 A.L.R. 13; 126 A.L.R. 284.

Right to dismissal of action for delay in prosecution as affected by filing of, or as affecting, cross complaint, counterclaim, intervention, and the like, 90 A.L.R. 387.

Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128.

Water user as necessary or proper party to litigation involving the right of ditch or canal company or irrigation or drainage district from which he takes water, 100 A.L.R. 561.

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

Amendment of petition or complaint after statute of limitations has run, by reinstating codefendant who had been dismissed from the action otherwise than upon merits, 143 A.L.R. 1182.

Provision that judgment is "without prejudice" or "with prejudice" as affecting its operation as res judicata, 149 A.L.R. 553.

Delay in issuance or service of summons as requiring or justifying order discontinuing suit, 167 A.L.R. 1058.

Dissolved corporation as an indispensable party to a stockholders' derivative action, 172 A.L.R. 691.

Voluntary dismissal or withdrawal of proceedings to probate or contest will, 173 A.L.R. 959.

Effect of nonsuit, dismissal, or discontinuance of action on previous orders, 11 A.L.R.2d 1407.

Punishment of civil contempt in other than divorce cases by striking pleading or entering default judgment or dismissal against contemner, 14 A.L.R.2d 580.

Appellate review at instance of plaintiff who has requested, induced, or consented to dismissal or nonsuit, 23 A.L.R.2d 664.

Dismissal of plaintiff's case for want of prosecution as affecting defendant's counterclaim, setoff, or recoupment, or intervenor's claim for affirmative relief, 48 A.L.R.2d 748.

Res judicata effect of judgment dismissing action or otherwise denying relief, for lack of jurisdiction or venue, 49 A.L.R.2d 1036.

Dismissal of civil action for want of prosecution as res judicata, 54 A.L.R.2d 473.

Raising defense of statute of limitations by demurrer, equivalent motion to dismiss, or by motion for judgment on pleadings, 61 A.L.R.2d 300.

What dismissals preclude a further suit, under federal and state rules regarding two dismissals, 65 A.L.R.2d 642.

Illness or death of party, counsel, or witness as excuse for failure to timely prosecute action, 80 A.L.R.2d 1399.

Doctrine of forum non conveniens: assumption or denial of jurisdiction of contract action involving foreign elements, 90 A.L.R.2d 1109.

Dismissal of appeal or writ of error for want of prosecution as bar to subsequent appeal, 96 A.L.R.2d 312.

Time when voluntary nonsuit or dismissal may be taken as of right under statute so authorizing at any time before "trial," "commencement of trial," "trial of the facts," or the like, 1 A.L.R.3d 711.

Dismissing action or striking testimony where party to civil action asserts privilege against self-incrimination as to pertinent question, 4 A.L.R.3d 545.

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.

Dismissal of action because of party's perjury or suppression of evidence, 11 A.L.R.3d 1153.

Applicability, as affected by change in parties, of statute permitting commencement of new action within specified time after failure of prior action not on merits, 13 A.L.R.3d 848.

Effect of statute permitting new action to be brought within specified period after failure of original action other than on the merits to limit period of limitations, 13 A.L.R.3d 979.

Right of one spouse, over objection, to voluntarily dismiss claim for divorce, annulment, or similar marital relief, 16 A.L.R.3d 283.

Voluntary dismissal or replevin action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 24 A.L.R.3d 768.

Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings, or directed verdict, 36 A.L.R.3d 1113.

Power of court sitting as trier of fact to dismiss at close of plaintiff's evidence, notwithstanding plaintiff has made out prima facie case, 55 A.L.R.3d 272.

Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109.

Power of trial court to dismiss prosecution as direct acquittal on basis of prosecutor's opening statement, 75 A.L.R.3d 649.

Appealability of order dismissing counterclaim, 86 A.L.R.3d 944.

Award of damages for dilatory tactics in prosecuting appeal in state court, 91 A.L.R.3d 661.

What constitutes bringing an action to trial or other activity in case sufficient to avoid dismissal under state statute or court rule requiring such activity within stated time, 32 A.L.R.4th 840.

Construction, as to terms and conditions, of state statute or rule providing for voluntary dismissal without prejudice upon such terms and conditions as state court deems proper, 34 A.L.R.4th 778.

Dismissal of state court action for plaintiff 's failure or refusal to obey court order relating to pleadings or parties, 3 A.L.R.5th 237.

Construction and application of two-dismissal rule under federal law, 10 A.L.R. Fed. 3d 4.