Opinion
74488.
DECIDED SEPTEMBER 14, 1987.
Medical malpractice. Chatham Superior Court. Before Judge Brannen.
William F. Braziel, Jr., for appellants.
M. Brice Ladson, William P. Franklin, Jr., Wiley A. Wasden III, Thomas A. Withers, Wendy W. Williamson, for appellees.
Acting in reliance on OCGA § 9-2-61 (a), the appellants brought this renewal action reasserting a medical malpractice claim which they had previously filed against the appellees and then voluntarily dismissed. The trial court granted summary judgment to the appellees based upon the appellants' failure to pay in a timely manner all the accrued costs due in the prior action. This appeal followed. Held:
1. The appellants have filed a motion seeking to supplement the record on appeal. Where a party seeks to have the record on appeal supplemented, it is incumbent on him to follow the procedures set forth in OCGA § 5-6-41 (f). "`When this is not done, there is nothing for the appellate court to review.' [Cits.]" Vaughn v. State, 173 Ga. App. 716, 719 ( 327 S.E.2d 747) (1985). The appellants' motion is therefore denied.
2. Georgia law requires payment of all the accrued costs of the prior action as a condition precedent to filing a renewal action following a voluntary dismissal. OCGA § 9-11-41 (d); Little v. Walker, 250 Ga. 854 ( 301 S.E.2d 639) (1983). "[I]f costs are not paid prior to filing then the second suit is not a valid pending action. [Cit.]" Couch v. Wallace, 249 Ga. 568, 569 ( 292 S.E.2d 405) (1982). Non-payment of the costs due in the prior action has been held to be an amendable defect only if the existence of such costs remains unknown despite a goodfaith inquiry made prior to the filing of the renewal action and if the deficiency is paid "within a reasonable time" after being discovered. Daugherty v. Norville Indus., 174 Ga. App. 89, 91 ( 329 S.E.2d 202) (1985).
The appellees submitted the affidavit of a deputy clerk stating that $67 in court costs remained unpaid in the prior action. Although the record shows that the appellants affirmatively sought, before filing the renewal action, to ascertain and pay any unpaid costs due in the prior action, the record further reveals that unlike the plaintiffs in Daugherty, supra, they did not pay the deficiency within a reasonable time after being made aware of it but delayed doing so for more than six months. We consequently hold that the trial court did not err in ruling that the appellants were not entitled to pursue the present action. Judgment affirmed. Carley and Benham, JJ., concur.