Opinion
68195.
DECIDED JUNE 22, 1984.
Payment of costs. Cobb State Court. Before Judge Kreeger.
Laurie C. Davis, for appellant.
J. Al Cochran, Albert E. Jones, for appellees.
This case is controlled by Little v. Walker, 250 Ga. 854 ( 301 S.E.2d 639) wherein it was held: "We granted certiorari to answer the question whether the payment of costs in a previous action under OCGA § 9-11-41 (Code Ann. § 81A-141) is a condition precedent to filing a second suit, as indicated in Couch v. Wallace, 249 Ga. 568 ( 292 S.E.2d 405) (1982), or whether payment of costs in the prior suit may be made after the second suit is filed. We adhere to our rule in Couch v. Wallace, supra, and find that the payment of costs in the dismissed suit is a precondition to the filing of the second suit. McLanahan v. Keith, supra, is hereby overruled to the extent that it is in conflict with Couch v. Wallace, supra. We believe that this holding is required by the plain meaning of the words of the statute."
We are not persuaded by plaintiff's argument that since he relied on McLanahan v. Keith, 239 Ga. 94 ( 236 S.E.2d 52), to apply a converse rule retroactively would be prejudicial to him. Without question the losing side in Little v. Walker, 250 Ga. 854, supra, also relied on McLanahan and suffered harm from such reliance. The Supreme Court in construing OCGA § 9-11-41 attributed to the statute the "plain meaning" of its language. There is no valid reason to make the holding in the Little case prospective and applicable only to cases arising thereafter. See Foster v. Bowen, 253 Ga. 33 ( 315 S.E.2d 656).
Judgment affirmed. Birdsong and Carley, JJ., concur.