Tucker v. Mitchell

Clarke, Justice.

Plaintiff (appellee here) dismissed an action against defendant (appellant) and on the same day filed another action against him. Plaintiff did not pay costs in the dismissed action until some three weeks after the second action was filed. Defendant did not raise plaintiffs failure to pay costs in his answer. He subsequently filed a motion to dismiss which was denied by the trial judge on the basis that defendant’s failure to raise the affirmative defense of failure to pay costs in the answer and for seventeen months thereafter constituted a waiver pursuant to McLanahan v.…