GA Code § 9-2-63 (2021)
2021 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

 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.