Where a defendant's plea, which alleges that the court is without jurisdiction of the person and that the superior court of an other county has jurisdiction, is sustained, the plaintiff may refile his action under the provisions of Code 3-808 without first paying the accrued costs in the first action or filing a pauper's affidavit.
Harry R. Davis sued Albert H. Holt in the Superior Court of Walker County to recover damages arising from an automobile collision. The petition alleged that the defendant was a resident of Alabama and process was served under the provisions of the Nonresident Motorists Act (Code Ann. Ch. 68-8). To such action the defendant filed a plea to the jurisdiction in which he contended that he was a resident of Fulton County, Ga. The plea was sustained both by the trial court and by this court. See Davis v. Holt, 105 Ga. App. 125 (123 SE2d 686)
. After the remittitur from this court was made the judgment of the trial court, and within six months, the plaintiff filed the present action against the defendant in the Superior Court of Fulton County. To this action the defendant filed his plea in abatement in which it was alleged that the present action should be abated and dismissed since the prior suit was still pending because the plaintiff had failed to pay the court costs in the action filed in Walker County. The plaintiff demurred to such plea and thereafter, after the defendant had amended such plea to show the amount of the court costs in the prior action and the plaintiff renewed his demurrers, the trial court overruled all of the plaintiff's demurrers and granted defendant's motion for summary judgment on his plea in abatement which dismissed the action. Previously the plaintiff's demurrers to the motion for summary judgment had been overruled. On such rulings adverse to him plaintiff excepts, assigns error and brings the case here for review.
The defendant's plea in abatement is based solely on the ground that the plaintiff had failed to pay the court costs, which accrued in the first action, before filing the second action.
In support of his contention the defendant cites Poplarville Sawmill Co. v. Driver & Co., 17 Ga. App. 674 (88 SE 36), a case where the plaintiff had voluntarily dismissed the first action before filing the second. As pointed out in Dowe v. Debus Mfg. Co., 52 Ga. App. 713 (1) (184 SE 362): "It is only where an action has been nonsuited, dismissed, or discontinued, and the dismissal or discontinuance is by the act of the plaintiff, that, as a condition precedent to recommencing the suit, the costs of the former suit must be paid, or an affidavit in forma pauperis in lieu thereof be made as provided in the Code of 1933, 3-508, 3-509." In that case the first action was dismissed after a traverse to the service had been sustained and it was held that the second action was not subject to the plea in abatement on the ground that the costs had not been paid and no pauper's affidavit filed. Such case followed the decision of the Supreme
Court in Rumph v. Truelove, 66 Ga. 480, where it was held: "To fall under that section [Code 3-508] there must have been a nonsuit by the court, or a dismission, or discontinuance by the plaintiff himself." See also Rountree v. Key, 71 Ga. 214, which explains that cases like the one sub judice may be renewed under Code 3-808 which section does not require the payment of costs as a prerequisite, and not under Code 3-508.
In the present case the former action was, as shown by the plea, ended by the court sustaining the defendant's plea to the jurisdiction. The trial court erred in overruling the plaintiff's general demurrer to the defendant's plea in abatement and the further proceedings were nugatory, and the assignments of error thereon need not be passed upon by this court.
Judgment reversed. Frankum and Jordan, JJ., concur.