Johnson v. Central of Georgia Railway Co.

Lamar, J. In the decisions in City of Atlanta v. Wilson, 70 Ga. 714, Stirk v. Central R. Co., 79 Ga. 497, Langston v. Marks, 68 Ga. 436, and Sweeney v. Malloy, 107 Ga. 80, construing the Civil Code, § 5043, it was held that the payment of costs was a condition precedent to the right to maintain a suit which had previously been dismissed or nonsuited, and that there was no [186] provision of law for recommencing an action by filing a pauper affidavit. If, therefore, the case is to be determined according to the law of force when the suit was originally nonsuited, the plea in abatement filed at the first term was properly sustained. If it be governed by the provisions of the act of December 18, 1901, the same result follows, since the plaintiff did not, at the time of instituting the second suit, file the affidavit required by that statute. Judgment affirmed. All the Justices concur.