Deposit Prior to Filing by Clerk; Exception if Affidavit of Indigence Filed; Repayment of Excess; Exemptions

  1. Law
  2. Georgia Code
  3. Civil Practice
  4. Court and Litigation Costs
  5. Deposit Prior to Filing by Clerk; Exception if Affidavit of Indigence Filed; Repayment of Excess; Exemptions

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  1. A clerk of the superior court shall not be required to file any civil case or proceeding until the fee required by Code Section 15-6-77, relating to fees of clerks of the superior courts, has been paid to the clerk. The fee shall not be required if the party desiring to file the case or proceeding is unable because of indigence to pay the fee and the party files with the clerk an affidavit to such effect.
  2. The deposit required to be filed by this Code section shall not affect any other law which requires a deposit in excess of or in addition to the deposit of cost required by this Code section.
  3. Nothing contained in this Code section shall be deemed to require a deposit of cost by the state, its agencies, or its political subdivisions; and, without limiting the generality of the foregoing, no clerk of any court shall be authorized to require any deposit of costs in any action or proceeding for the collection of criminal penalties as authorized under Code Section 42-8-34.2.

(Ga. L. 1890-91, p. 100, § 1; Civil Code 1895, § 5398; Civil Code 1910, § 5986; Code 1933, § 24-3406; Ga. L. 1945, p. 207, § 1; Ga. L. 1957, p. 405, § 2; Ga. L. 1958, p. 398, § 1; Ga. L. 1970, p. 497, § 4; Ga. L. 1971, p. 214, § 2; Ga. L. 1972, p. 664, § 5; Ga. L. 1981, p. 1396, § 2; Ga. L. 1986, p. 1002, § 4; Ga. L. 1991, p. 1051, § 2; Ga. L. 2019, p. 683, § 1/HB 288.)

The 2019 amendment, effective January 1, 2020, in subsection (a), deleted "and Code Section 15-6-77.2" following "15-6-77" in the first sentence and deleted "his" following "because of" in the middle of the second sentence.

Law reviews.

- For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For annual survey on real property, see 71 Mercer L. Rev. 241 (2019). For article, "2019 Legislative Review," see 24 Ga. St. B.J. 28 (June 2019).

JUDICIAL DECISIONS

Clerk's filing without deposit or affidavit not waiver of costs.

- Clerk's filing of a complaint without having received a deposit or an affidavit of indigence did not constitute a waiver of assessment of court costs against the complainant. Whitehead v. Lavoie, 176 Ga. 666, 337 S.E.2d 357 (1985).

Contempt motion filed more than 30 days after judgment.

- Plaintiff's motion for contempt for failure to comply with court-ordered postjudgment discovery that was submitted more than 30 days after judgment was considered a new proceeding within the meaning of O.C.G.A. § 15-6-77(e)(1) for purposes of calculating the costs the superior court clerk was entitled to charge and collect. McFarland & Assocs., P.C. v. Hewatt, 242 Ga. App. 454, 529 S.E.2d 902 (2000).

Cited in Harper v. Burgess, 225 Ga. 420, 169 S.E.2d 297 (1969); Hospital Auth. v. Stewart, 226 Ga. 530, 175 S.E.2d 857 (1970); Portis v. Evans, 249 Ga. 396, 291 S.E.2d 511 (1982); Rivergate Corp. v. Atlanta Indoor Adv. Concepts, Inc., 210 Ga. App. 501, 436 S.E.2d 697 (1993); Anderson v. Hardoman, 286 Ga. App. 499, 649 S.E.2d 611 (2007); Newton Timber Co., L.L.L.P. v. Monroe County Bd. of Tax Assessors, Ga. , 755 S.E.2d 770 (2014).

OPINIONS OF THE ATTORNEY GENERAL

Clerk may not be required to file any divorce case until deposit of amount due under former Code 1933, § 24-2727 (see now O.C.G.A. § 15-6-77) was made. 1969 Op. Att'y Gen. No. 69-99.

Clerk of superior court may not demand more than amount due as advance costs deposit under former Code 1933, § 24-2727 (see now O.C.G.A. § 15-6-77) for the filing of a divorce proceeding, although the clerk may accept such additional costs as the party volunteers to pay towards the total anticipated court costs of the proceeding. 1969 Op. Att'y Gen. No. 69-111.

Appeals to superior court.

- Party who files notice of appeal under former Code 1933, § 92-6912 (see now O.C.G.A. § 48-5-311(f)) was party bearing burden of cost deposit under former Code 1933, §§ 24-2727 and 24-3406 (see now O.C.G.A. §§ 9-15-4 and15-6-77). 1974 Op. Att'y Gen. No. U74-46.

Appellants contesting a decision rendered by a county board of equalization in superior court must pay the advance court cost deposit set forth in O.C.G.A. §§ 9-15-4 and15-6-77. 1985 Op. Att'y Gen. No. U85-17.

Taxpayers appealing from decisions of the state revenue commissioner pursuant to O.C.G.A. § 48-2-59 need only comply with the specific requirements of that section with regard to court costs; taxpayers need not pay the advance court cost deposit set forth in O.C.G.A. §§ 9-14-4 and15-6-77. 1985 Op. Att'y Gen. No. U85-17.

Appellants contesting the award of a special master need not pay the advance court cost deposit set forth in O.C.G.A. §§ 9-15-4 and15-6-77 if the appellants have properly paid the required costs for filing the initial condemnation petition. 1985 Op. Att'y Gen. No. U85-17.

Clerk of superior court must refund portion of advance costs deposit exceeding actual costs. 1976 Op. Att'y Gen. No. U76-61.

Advance deposit not increased by increase in sheriffs' fees.

- Increase in sheriffs' fees under former Code 1933, § 24-2823 (see now O.C.G.A. § 15-16-21) did not serve to increase the amount designated in former Code 1933, § 24-3406 (see now O.C.G.A. § 9-15-4) as advance deposit, but must be collected at the termination of the case as were other costs. 1968 Op. Att'y Gen. No. 68-325.

Sheriff's fees in addition to deposit.

- Sheriff's fee set forth in the 1976 amendment to former Code 1933, § 24-2823 (see now O.C.G.A. § 15-16-21) should be paid at the clerk's office at the time of filing, if required in a particular case; and that payment of the sheriff's fees was required in addition to the deposit for the clerk's fees which were payable at the time of filing appropriate cases. 1976 Op. Att'y Gen. No. U76-37.

RESEARCH REFERENCES

ALR.

- Exception as regards payments to officers of court to rule preventing recovery back of payments made under mistake of law, 111 A.L.R. 637.

Taxable costs and disbursements as including expenses for bonds incident to steps taken in action, 90 A.L.R.2d 448.


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