How Does a Prior Dismissal Affect Refiling a Case Later?
Full Question:
Answer:
It is unclear whether the dismissal without prejudice is of the case in magistrate's court or its appeal. The answer will depend on all the circumstances involved, such as the basis for the dismissals and whether the original magistrate's court case or its appeal is still pending. We are prohibited from providing a legal opinion, as this service provides information of a general legal nature. Please see the following GA statutes to determine applicability:
-11-41. (a) Voluntary dismissal; effect:
(a) 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:
(A) By filing a written notice of dismissal at any time before the
first witness is sworn; or
(B) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
5-3-7. An appeal shall suspend but not vacate a judgment and, if
dismissed. . . .
An appeal shall suspend but not vacate a judgment and, if dismissed
or withdrawn, the rights of all the parties shall be the same as if no
appeal had been entered.
5-3-8. After an appeal has been entered, no person shall be allowed to.
. . .
After an appeal has been entered, no person shall be allowed to
withdraw the appeal without the consent of the adverse party.
5-3-20. (a) Appeals to the superior court shall be filed within 30 days
of. . . .
(a) Appeals to the superior court shall be filed within 30 days of
the date the judgment, order, or decision complained of was entered.
(b) The date of entry of an order, judgment, or other decision shall
be the date upon which it was filed in the court, agency, or other
tribunal rendering same, duly signed by the judge or other official
thereof.
(c) This Code section shall apply to all appeals to the superior
court, any other law to the contrary notwithstanding.
