Cross references. - Equitable remedies and proceedings in equity generally, T. 23, C. 3.

Law reviews. - For annual survey article discussing trial practice and procedure, see 51 Mercer L. Rev. 487 (1999). For survey of 1999 Eleventh Circuit cases on trial practice and procedure, see 51 Mercer L. Rev. 1291 (2000). For annual survey article discussing trial practice and procedure, see 52 Mercer L. Rev. 447 (2000). For article, "The Federal Rules of Civil Procedure and Legal Realism as a Jurisprudence of Law Reform," see 44 Ga. L. Rev. 433 (2010). For annual survey on trial practice and procedure, see 69 Mercer L. Rev. 1249 (2018). For article, "Surges and Delays in Mass Adjudication," see 53 Ga. L. Rev. 1335 (2019).

RESEARCH REFERENCES

ALR. - Validity and construction of agreement between attorney and client to arbitrate disputes arising between them, 26 A.L.R.5th 107.

CHAPTER 1 GENERAL PROVISIONS

Reserved

CHAPTER 2 ACTIONS GENERALLY

General Provisions.

Parties.

Abatement.

Dismissal and Renewal.

Cross references. - Derivative actions, § 14-2-123 .

Provision that county is not liable to cause of action unless made so by statute, § 36-1-4 .

Giving of written notice to municipality regarding claim for money damages on account of injuries to person or property, § 36-33-5 .

Law reviews. - For annual survey article on trial practice and procedure, see 50 Mercer L. Rev. 359 (1998).

ARTICLE 1 GENERAL PROVISIONS

RESEARCH REFERENCES

ALR. - Nature of termination of civil action required to satisfy element of favorable termination to support action for malicious prosecution, 30 A.L.R.4th 572.

9-2-1. Definitions.

As used in this title, the term:

  1. "Action" means the judicial means of enforcing a right.
  2. "Civil action" means an action founded on private rights, arising either from contract or tort.
  3. "Penal action" means an action allowed in pursuance of public justice under particular laws. (Orig. Code 1863, §§ 3175, 3177, 3178; Code 1868, §§ 3186, 3188, 3189; Code 1873, §§ 3251, 3253, 3254; Code 1882, §§ 3251, 3253, 3254; Civil Code 1895, §§ 4930, 4932, 4933; Civil Code 1910, §§ 5507, 5509, 5510; Code 1933, §§ 3-101, 3-102, 3-103.) For corresponding provision relating to criminal procedure, § 17-1-2 .

Cross references. - Status of "civil action" as single form of action for purposes of Civil Practice Act, § 9-11-2 .

JUDICIAL DECISIONS

"Action" and "cause of action" distinguished. - Word "action," as defined by this section, differs from a cause of action in that the latter is the right itself. Alexander v. Dean, 29 Ga. App. 722 , 116 S.E. 643 (1923).

Object of action. - The object of an "action," as defined by this section, is to redress or prevent a wrong. Southern Ry. v. State, 116 Ga. 276 , 42 S.E. 508 (1902); Citizens' & S. Nat'l Bank v. Hendricks, 176 Ga. 692 , 168 S.E. 313 (1933).

Petition of an immediate writ of possession is an "action" within the meaning of O.C.G.A. § 9-2-1 . Flateau v. Reinhardt, Whitley & Wilmot, 220 Ga. App. 188 , 469 S.E.2d 222 (1996).

Levy of an execution is a "judicial means" provided by law for "enforcing a right." Miller County v. Bush, 28 Ga. App. 130 , 110 S.E. 515 (1922).

Cited in George v. Gardner, 49 Ga. 441 (1873); Mitchell v. Georgia R.R., 68 Ga. 644 (1882); Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 (1943); Pate v. Taylor Chem. Co., 88 Ga. App. 127 , 76 S.E.2d 131 (1953); Malone v. Clark, 109 Ga. App. 134 , 135 S.E.2d 517 (1964); First Nat'l Bank & Trust Co. v. McNatt, 141 Ga. App. 6 , 232 S.E.2d 356 (1977); Cooper v. Public Fin. Corp., 146 Ga. App. 250 , 246 S.E.2d 684 (1978); Buckler v. DeKalb County Bd. of Tax Assessors, 288 Ga. App. 332 , 654 S.E.2d 184 (2007).

RESEARCH REFERENCES

C.J.S. - 1A C.J.S., Actions, §§ 1, 74 et seq., 83. 7A C.J.S., Attorney General, § 65 et seq.

ALR. - Effect of action as an election of remedy or choice of substantive rights in case of fraud in sale of property, 123 A.L.R. 378 .

9-2-2. Actions in personam; actions in rem.

  1. An action may be against the person, or against property, or both.
  2. Generally, a proceeding against the person shall bind the property also. A proceeding against property without service on the person shall bind only the particular property.

    (Orig. Code 1863, § 3176; Code 1868, § 3187; Code 1873, § 3252; Code 1882, § 3252; Civil Code 1895, § 4931; Civil Code 1910, § 5508; Code 1933, § 3-104; Ga. L. 1982, p. 3, § 9.)

JUDICIAL DECISIONS

Cited in Carling v. Seymour Lumber Co., 113 F. 483 (5th Cir. 1902); Lowery Lock Co. v. Wright, 154 Ga. 867 , 115 S.E. 801 (1923); Hayes v. International Harvester Co. of Am., 52 Ga. App. 328 , 183 S.E. 197 (1935); Pollard v. Walton, 55 Ga. App. 353 , 190 S.E. 396 (1937); Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 (1943); Retail Credit Co. v. Russell, 234 Ga. 765 , 218 S.E.2d 54 (1975); Spinner v. City of Dallas, 292 Ga. App. 251 , 663 S.E.2d 815 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Actions, § 33 et seq.

C.J.S. - 1A C.J.S., Actions, § 87.

9-2-3. Remedy for every right.

For every right there shall be a remedy; every court having jurisdiction of the one may, if necessary, frame the other.

(Orig. Code 1863, § 3174; Code 1868, § 3185; Code 1873, § 3250; Code 1882, § 3250; Civil Code 1895, § 4929; Civil Code 1910, § 5506; Code 1933, § 3-105.)

Law reviews. - For article discussing the inefficiency of mandamus and impeachment as remedies for judicial inaction, see 5 Ga. St. B.J. 467 (1969). For note on defamation in radio and television, see 15 Mercer L. Rev. 450 (1964). For note, "Whose Sperm Is It Anyways in the Wild, Wild West of the Fertility Industry?," see 34 Ga. St. U.L. Rev. 847 (2018). For comment on Henson v. Garnto, 88 Ga. App. 320 , 76 S.E.2d 636 (1953), regarding recovery by wife under doctrine of respondeat superior for injuries caused by husband, see 5 Mercer L. Rev. 209 (1953). For comment on Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504 , 93 S.E.2d 727 (1956), recognizing child's right of action for prenatal injuries suffered prior to viability, see 8 Mercer L. Rev. 377 (1957).

JUDICIAL DECISIONS

Derivation of section from common law, see Tingle v. Harvill, 125 Ga. App. 312 , 187 S.E.2d 536 (1972).

Section to be construed with O.C.G.A. § 44-12-21 . - Former Civil Code 1910, §§ 3652 and 5508 (see now O.C.G.A. §§ 9-2-3 and 44-12-21 ), relating to rights and remedies to enforce chose in action, were construed together, and were based on the common law since the Statute of Westminister 11 (13 Edw. 1, ch. 24) was enacted. Moore v. City of Winder, 10 Ga. App. 384 , 73 S.E. 529 (1912).

Meaning of "remedy". - Term "remedy," when properly used, signifies and is limited to the judicial means or method whereby a cause of action may be enforced, including also the application of the measure of damages appropriate to the relief sought. Hamlin v. Johns, 41 Ga. App. 91 , 151 S.E. 815 (1930).

Remedy for arrest and detainer under void warrant. - When a person has been arrested and detained under a void warrant, the remedy is an action for false imprisonment. Wilson v. Bonner, 166 Ga. App. 9 , 303 S.E.2d 134 (1983).

Action between spouses. - Former Code 1933, §§ 3-104, 79-205, and 79-206 (see now O.C.G.A. §§ 1-2-6 and 9-2-3 ) have been in each Code of Georgia, and do not purport to change the common law with respect to the right of one spouse to sue the other. Holman v. Holman, 73 Ga. App. 205 , 35 S.E.2d 923 (1945).

Malicious institution of lunacy proceedings. - Former Code 1933, § 105-801 (see now O.C.G.A. § 51-7-40 ) which provided for a statutory cause of action for malicious prosecution of a criminal case, was not all inclusive, and did not preclude a cause of action where lunacy proceedings were instituted maliciously, in view of former Code 1933, § 3-104 (see now O.C.G.A. § 9-2-3 ). Guth v. Walker, 92 Ga. App. 490 , 88 S.E.2d 821 (1955).

Relief of surety. - To the extent to which Ga. L. 1943, pp. 282, 283 (O.C.G.A. §§ 17-6-31 and 17-6-71 ) fail to describe procedure by which surety may be relieved after final judgment, provisions of former Code 1933, § 3-105 (see now O.C.G.A. § 9-2-3 ) may be resorted to. Fields v. Arnall, 199 Ga. 491 , 34 S.E.2d 692 (1945).

"Single wrong" of false imprisonment is not made plural by alleging that it was made up of constituent parts: trespass, assault, and kidnapping. Wilson v. Bonner, 166 Ga. App. 9 , 303 S.E.2d 134 (1983).

Modification of support order. - Fact that a procedure to permit the modification of a Uniform Reciprocal Enforcement of Support Act (URESA), O.C.G.A. Art. 2, Ch. 11, T. 19, support order may not be in place is a matter which addresses itself to the legislature, not the courts. State v. Garrish, 197 Ga. App. 816 , 399 S.E.2d 572 (1990).

Cited in Hendrick v. Cook, 4 Ga. 241 (1848); Griffin & Clay v. Marshall, 45 Ga. 549 (1872); Johnson v. Jackson, 56 Ga. 326 , 21 Am. R. 285 (1876); Epping v. Aiken, 71 Ga. 682 (1883); Austell v. Swann, 74 Ga. 278 (1884); Houston v. Redwine, 85 Ga. 130 , 11 S.E. 662 (1890); Smith v. Floyd County, 85 Ga. 420 , 11 S.E. 850 (1890); Jones v. Crawford, 107 Ga. 318 , 33 S.E. 51 , 45 L.R.A. 105 (1899); Wilcox v. Ryals, 110 Ga. 287 , 34 S.E. 575 (1899); Garden v. Crutchfield, 112 Ga. 274 , 37 S.E. 368 (1900); Detwiler v. Bainbridge Grocery Co., 119 Ga. 981 , 47 S.E. 553 (1904); Bell v. Dawson Grocery Co., 120 Ga. 628 , 48 S.E. 150 (1904); Pavesich v. New England Life Ins. Co., 122 Ga. 190 , 50 S.E. 68 , 106 Am. St. R. 104 , 69 L.R.A. 101 , 2 Ann. Cas. 561 (1905); Louisville & N.R.R. v. Wilson, 123 Ga. 62 , 51 S.E. 24 , 3 Ann. Cas. 128 (1905); Southern Ry. v. Moore, 133 Ga. 806 , 67 S.E. 85 , 26 L.R.A. (n.s.) 851 (1910); Grist v. White, 14 Ga. App. 147 , 80 S.E. 519 (1914); Tennessee Fertilizer Co. v. Hand, 147 Ga. 588 , 95 S.E. 81 (1918); Coca-Cola Co. v. City of Atlanta, 152 Ga. 558 , 110 S.E. 730 , 23 A.L.R. 1339 (1922); Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229 , 114 S.E. 36 (1922); Strickland v. Darsey, 156 Ga. 717 , 120 S.E. 7 , 32 A.L.R. 974 (1923); Murray v. Miller, 157 Ga. 11 , 121 S.E. 113 (1923); Clements v. Seaboard Air-Line Ry., 158 Ga. 764 , 124 S.E. 516 (1924); Franklin v. City of Atlanta, 40 Ga. App. 319 , 149 S.E. 326 (1929); Henry Talmadge & Co. v. Seaboard Air Line Ry., 170 Ga. 225 , 152 S.E. 243 (1930); Bulloch v. Bulloch, 45 Ga. App. 1 , 163 S.E. 708 (1932); Brinson v. Georgia R.R. Bank & Trust Co., 45 Ga. App. 459 , 165 S.E. 321 (1932); Goodyear Tire & Rubber Co. v. Vandergriff, 52 Ga. App. 662 , 184 S.E. 452 (1936); Citizens & S. Nat'l Bank v. Cook, 182 Ga. 240 , 185 S.E. 318 (1936); Hale v. Turner, 183 Ga. 593 , 189 S.E. 10 (1936); Mayor of Savannah v. Fawcett, 186 Ga. 132 , 197 S.E. 253 (1938); Robitzsch v. State, 189 Ga. 637 , 7 S.E.2d 387 (1940); Wagner v. Biscoe, 190 Ga. 474 , 9 S.E.2d 650 (1940); Payne v. Home Sav. Bank, 193 Ga. 406 , 18 S.E.2d 770 (1942); Evans v. Brown, 196 Ga. 634 , 27 S.E.2d 300 (1943); Berry v. Smith, 85 Ga. App. 710 , 70 S.E.2d 62 (1952); Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504 , 93 S.E.2d 727 (1956); Glover v. Maddox, 98 Ga. App. 548 , 106 S.E.2d 288 (1958); Clarke County Sch. Dist. v. Madden, 99 Ga. App. 670 , 110 S.E.2d 47 (1959); American Broadcasting-Paramount Theatres, Inc. v. Simpson, 106 Ga. App. 230 , 126 S.E.2d 873 (1962); Bromley v. Bromley, 106 Ga. App. 606 , 127 S.E.2d 836 (1962); Calhoun v. State Hwy. Dep't, 223 Ga. 65 , 153 S.E.2d 418 (1967); Housing Auth. v. Mercer, 123 Ga. App. 38 , 179 S.E.2d 275 (1970); Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494 (S.D. Ga. 1974); Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 143 Ga. App. 579 , 239 S.E.2d 401 (1977); Florida Rock Indus., Inc. v. Smith, 163 Ga. App. 361 , 294 S.E.2d 553 (1982); Hose v. Jason Property Mgt. Co., 178 Ga. App. 661 , 344 S.E.2d 483 (1986); Bowling v. Gober, 206 Ga. App. 38 , 424 S.E.2d 335 (1992); Cox v. Athens Reg'l Med. Ctr., Inc., 279 Ga. App. 586 , 631 S.E.2d 792 (2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Actions, §§ 41, 43.

C.J.S. - 1A C.J.S., Actions, § 6 et seq.

ALR. - Rule of municipal immunity from liability for torts pertaining to governmental functions as affected by constitutional guaranty of remedy for all injuries and wrongs, 57 A.L.R. 419 .

Right of resident alien who is subject of an enemy country to prosecute suit during war, 143 A.L.R. 1517 .

Suits and remedies against alien enemies, 155 A.L.R. 1451 ; 156 A.L.R. 1448 ; 157 A.L.R. 1449 .

Exhaustion of remedies within labor union as condition of resort to civil courts by expelled or suspended member, 87 A.L.R.2d 1099.

State lotteries: actions by ticketholders against state or contractor for state, 40 A.L.R.4th 662.

Private contests and lotteries: entrants' rights and remedies, 64 A.L.R.4th 1021.

9-2-4. Pursuit of consistent or inconsistent remedies.

A plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them.

(Civil Code 1895, § 4945; Civil Code 1910, § 5522; Code 1933, § 3-114; Ga. L. 1967, p. 226, § 45.)

History of section. - This Code section is derived from the decision in Equitable Life Ins. Co. v. May, 82 Ga. 646 , 9 S.E. 597 (1889).

Law reviews. - For article discussing origin and validity of Georgia statute concerning election of remedies, see 14 Ga. L. Rev. 239 (1980). For article, "Res Judicata and Collateral Estoppel: New Defenses in Construction Litigation?," see 21 Ga. St. B.J. 108 (1985).

JUDICIAL DECISIONS

Constitutionality, see Douglas County v. Abercrombie, 226 Ga. 39 , 172 S.E.2d 419 (1970).

Purpose of 1967 amendment. - This section is addressed to satisfaction of different claims and its legislative history would seem to indicate that it was amended in 1967 to accommodate the pursuit of inconsistent remedies envisioned in the Civil Practice Act of 1966. Liberty Nat'l Bank & Trust Co. v. Diamond, 231 Ga. 321 , 201 S.E.2d 400 (1973).

Right of action. - Homeowners lacked standing to appeal consent orders entered by the director of the Environmental Protection Division of the Department of Natural Resources until the director sought to enforce them, but the homeowners were authorized to sue those directly responsible for polluting their property, irrespective of their right of access to the courts; hence, the underlying intent of O.C.G.A. § 12-2-2(c)(3)(B) was to preclude such attacks on the director's exercise of administrative authority to determine the scope of remedial measures set forth in consent orders issued under the Georgia Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq. Couch v. Parker, 280 Ga. 580 , 630 S.E.2d 364 (2006).

Effect of § 9-2-5 on this section. - While former Code 1933, § 3-114 (see now O.C.G.A. § 9-2-4 ) provided a general remedy for a plaintiff to obtain satisfaction by using consistent or inconsistent remedies against one or more defendants until a judgment was satisfied, former Code 1933, §§ 3-601 and 3-605 (see now O.C.G.A. § 9-2-5 ) provided a defendant with a specific defense against a plaintiff who came within its parameters and will prevail over the general terms of former Code 1933, § 3-114, if all of the conditions thereof were satisfied. Cooper v. Public Fin. Corp., 146 Ga. App. 250 , 246 S.E.2d 684 (1978).

This section does not apply to petition for declaratory judgment. Kiker v. Hefner, 119 Ga. App. 629 , 168 S.E.2d 637 (1969) ??? (see O.C.G.A. § 9-2-4 ).

Former requirement of consistency of remedies is no longer of force in this state. Cox v. Travelers Ins. Co., 228 Ga. 498 , 186 S.E.2d 748 (1972).

Doctrine of election of remedies (set forth in this section prior to 1967 amendment) is procedural and remedial in nature, and as against contention that a litigant has chosen a prior inconsistent remedy, the law in effect at the time the order is entered up must be applied. Douglas County v. Abercrombie, 119 Ga. App. 727 , 168 S.E.2d 870 (1969).

Pursuit of remedy to satisfaction controlling. - Inconsistency in the remedies sought is not the determinative factor in whether or not the bringing of a prior suit bars institution of a later one; whether or not a remedy has been pursued to satisfaction controls. Adams v. Cox, 152 Ga. App. 376 , 262 S.E.2d 634 (1979).

Joint liability not prevented. - O.C.G.A. § 9-2-4 prevents double recovery, not joint liability. Olden Camera & Lens Co. v. White, 179 Ga. App. 728 , 347 S.E.2d 696 (1986); Green v. Thompson, 208 Ga. App. 609 , 431 S.E.2d 390 (1993).

Unsatisfied judgment against joint and several obligor no bar. - Judgment against one of two joint and several obligors, which has never been satisfied, is no bar to a suit against the other. W.T. Rawleigh Co. v. Burkhalter, 59 Ga. App. 514 , 1 S.E.2d 609 (1939).

Effect of default judgment. - Merely obtaining a default judgment against one party does not constitute an election between two defendants who the plaintiff alleges are jointly and severally liable to it. Spalding Ford Lincoln-Mercury, Inc. v. Turner Broadcasting Sys., 202 Ga. App. 505 , 415 S.E.2d 26 (1992).

Judgment against principal as barring subsequent action against another. - When the judgment to which defendants claim a benefit under res judicata was rendered against their principal, that judgment represents a final adjudication of the principal's vicarious liability for such damage as plaintiff incurred. Since that judgment has been satisfied, plaintiff cannot thereafter set up the same cause of action against another whom the plaintiff had the election of suing in the first place. Nannis Terpening & Assocs. v. Mark Smith Constr. Co., 171 Ga. App. 111 , 318 S.E.2d 89 (1984).

Full satisfaction bars further recovery. - Settlement in which plaintiff, a lender, agrees to finance part of the settlement and files a satisfaction of judgment to that effect, serves as a bar to pursuit of further recovery from another defendant. Saunders, Stuckey & Mullis, Inc. v. Citizens Bank & Trust Co., 265 Ga. 453 , 458 S.E.2d 337 (1995).

Superior court did not err in reversing the decision of the Georgia Department of Revenue that a corporate officer was liable for a restaurant's sales and use taxes pursuant to O.C.G.A. § 48-2-52 because the release of and refund payment to the majority owner of the restaurant operated as a release of the officer; under O.C.G.A. § 13-1-13 , by voluntarily paying the owner a settlement amount with full awareness of any potential joint claim it had against the officer, the Department forfeited any right the Department had to recoup from the officer the payment made to the owner. Ga. Dep't of Revenue v. Moore, 317 Ga. App. 31 , 730 S.E.2d 671 (2012).

Suit against wrong person for collection of excess in rents pursuant to the former federal Housing and Rent Act of 1947, and a judgment therein, would not preclude plaintiffs from seeking a similar judgment against the real owner of the property. Williams v. Higgason, 205 Ga. 349 , 53 S.E.2d 473 (1949).

Complaint seeking injunctive relief against county corporation is not subject to dismissal because of pendency of mandamus action in another county against the corporation and its president. Tallant v. Executive Equities, Inc., 230 Ga. 172 , 195 S.E.2d 904 (1973).

Action for divorce and child support not inconsistent with abandonment action. - Mere pendency of the former action for divorce wherein wife sought support for the child from husband does not preclude, as a matter of law, the subsequent prosecution of an abandonment action to adjudicate the question of defendant-third party's obligation for support of the same child. Foster v. State, 157 Ga. App. 554 , 278 S.E.2d 136 (1981).

Damages for violation of settlement agreement. - When a settlement agreement is incorporated into a final decree of divorce, a suit seeking damages for the violation of its terms need not be initiated solely upon the decree, but an action ex contractu may be maintained due to a breach of the settlement agreement. Gray v. Higgins, 205 Ga. App. 52 , 421 S.E.2d 341 (1992).

It is not an admission to allege in different actions against joint tort-feasors that each defendant's negligence was the proximate cause of the incident as there may be more than one proximate cause. Church's Fried Chicken, Inc. v. Lewis, 150 Ga. App. 154 , 256 S.E.2d 916 (1979).

Denial of motion to dismiss not error when different claims against various defendants. - Denial of a motion to dismiss is not error although the opposing party has already obtained a judgment against the other defendants in the case where the defendants are not joint defendants, the claims against the various defendants being based on different theories and not alleging any form of joint liability. Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506 , 305 S.E.2d 14 (1983).

Plaintiff's right to pursue different remedies ends when the plaintiff obtains full satisfaction from one source. McLendon Bros. v. Finch, 2 Ga. App. 421 , 58 S.E. 690 (1907).

Pursuit of contradictory action following satisfaction under first suit. - Once a plaintiff has obtained satisfaction from one party one cannot pursue another party for the same damages under another theory completely contradictory and inconsistent with the contentions made in the first suit. Kelly v. Chrysler Corp., 129 Ga. App. 447 , 199 S.E.2d 856 (1973).

After a suit has been prosecuted to judgment, or a satisfaction obtained, plaintiff cannot bring a second action disproving facts relied upon in establishing the first. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879 , 209 S.E.2d 676 (1974).

Presumption of full satisfaction arises from settlement with joint tort-feasor, but such a presumption does not obtain when both the acts and their consequences are separable. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879 , 209 S.E.2d 676 (1974).

When separate and concurring acts of negligence cause a single injury either or both may be pursued until a satisfaction, settlement, release, or accord and satisfaction is obtained from some, but this will end the right of action against all. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879 , 209 S.E.2d 676 (1974).

Two recoveries from same defendant prohibited. - Although a plaintiff may pursue any number of consistent or inconsistent remedies against the same person until a plaintiff shall obtain a satisfaction, the plaintiff may not proceed with two lawsuits and recover twice from the same defendant merely by denominating one action a tort and the other a breach of contract. Bell v. Sigal, 129 Ga. App. 249 , 199 S.E.2d 355 (1973).

Election between theories of recovery prior to judgment. - While claimant or counterclaimant is not required to make an election between inconsistent remedies prior to the verdict, a party must make an election prior to the formulation and entry of judgment as every judgment must be certain and definite as to the amount thereof. UIV Corp. v. Oswald, 139 Ga. App. 697 , 229 S.E.2d 512 (1976) (action seeking recovery on tort and contract grounds for repossession and sale of collateral).

Since an election between inconsistent remedies must be made at some point, it is better, at least in the case of a verdict in a single lawsuit for inconsistent items of recovery, to require the election to be made prior to judgment. UIV Corp. v. Oswald, 139 Ga. App. 697 , 229 S.E.2d 512 (1976).

Application of an economic loss analysis by the trial court was proper in an action by an insured mortgagee against homeowner's insurer for the face amount of a policy after a fire. Owens v. Georgia Underwriting Ass'n, 223 Ga. App. 29 , 476 S.E.2d 810 (1996).

Summary judgment as to warranty claim did not preclude tort claim. - Grant of summary judgment on a breach of warranty claim did not preclude party from pursuing at trial the alternative theory of negligent construction as this course of action arises in tort and exists independently of any claim for breach of contract. Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521 , 428 S.E.2d 426 (1993).

Arbitration proceedings. - For discussion on applicability of O.C.G.A. § 9-2-4 to arbitration proceedings, see French v. Jinright & Ryan, 735 F.2d 433 (11th Cir. 1984).

Cited in Ashley v. Cook, 109 Ga. 653 , 35 S.E. 89 (1900); Georgia Mills & Elevator Co. v. Clarke, 112 Ga. 253 , 37 S.E. 414 (1900); Ray v. Pitman, 119 Ga. 678 , 46 S.E. 849 (1904); Clark v. Havard, 122 Ga. 273 , 50 S.E. 108 (1905); Board of Educ. v. Day, 128 Ga. 156 , 57 S.E. 359 (1907); Prince v. Wood, 23 Ga. App. 56 , 97 S.E. 457 (1918); Hotel Equip. Co. v. Liddell, 32 Ga. App. 590 , 124 S.E. 92 (1924); Georgia Nat'l Bank v. Fry, 32 Ga. App. 695 , 124 S.E. 542 (1924); Chapple v. Hight, 161 Ga. 629 , 131 S.E. 505 (1926); Nix v. Citizens Bank, 35 Ga. App. 55 , 132 S.E. 249 (1926); Jones v. Carter Elec. Co., 164 Ga. 44 , 137 S.E. 624 (1927); Equitable Life Assurance Soc'y v. Pattillo, 37 Ga. App. 398 , 140 S.E. 403 (1927); Allen v. Landers, 39 Ga. App. 264 , 144 S.E. 796 (1929); Talmadge v. McDonald, 44 Ga. App. 728 , 162 S.E. 856 (1932); Personal Fin. Co. v. Evans, 45 Ga. App. 54 , 163 S.E. 252 (1932); Dover v. Young, 45 Ga. App. 457 , 165 S.E. 325 (1932); Shadburn Banking Co. v. Streetman, 180 Ga. 500 , 179 S.E. 377 (1935); Herrington v. Hamilton, 51 Ga. App. 741 , 181 S.E. 592 (1935); W.T. Rawleigh Co. v. Burkhalter, 59 Ga. App. 514 , 1 S.E.2d 609 (1939); Grizzel v. Grizzel, 190 Ga. 219 , 9 S.E.2d 247 (1940); Belle Isle v. Moore, 190 Ga. 881 , 10 S.E.2d 923 (1940); Beard v. Beard, 197 Ga. 487 , 29 S.E.2d 595 (1944); Morris Plan Bank v. Simmons, 201 Ga. 157 , 39 S.E.2d 166 (1946); Williams v. Kelley, 78 Ga. App. 699 , 51 S.E.2d 696 (1949); Ashcraft v. Marsh, 81 Ga. App. 466 , 59 S.E.2d 333 (1950); Atlantic Coast Line R.R. v. Strickland, 87 Ga. App. 596 , 74 S.E.2d 897 (1953); Bacon v. Winter, 118 Ga. App. 358 , 163 S.E.2d 890 (1968); Newby v. Maxwell, 121 Ga. App. 18 , 172 S.E.2d 458 (1970); Rowe v. Citizens & S. Nat'l Bank, 129 Ga. App. 251 , 199 S.E.2d 319 (1973); Howell v. Ayers, 129 Ga. App. 899 , 202 S.E.2d 189 (1973); Trollinger v. Magbee Lumber Co., 132 Ga. App. 225 , 207 S.E.2d 701 (1974); Townsend v. Orkin Exterminating Co., 132 Ga. App. 740 , 209 S.E.2d 24 (1974); Latex Filler & Chem. Co. v. Chapman, 139 Ga. App. 382 , 228 S.E.2d 312 (1976); Mattair v. St. Joseph's Hosp., 141 Ga. App. 597 , 234 S.E.2d 537 (1977); Mickel v. Pickett, 241 Ga. 528 , 247 S.E.2d 82 (1978); Gregson & Assocs. v. Webb, Young, Daniel & Murphy, P.C., 243 Ga. 53 , 252 S.E.2d 482 (1979); Maxey v. Hospital Auth., 245 Ga. 480 , 265 S.E.2d 779 (1980); Sheppard v. Yara Eng'g Corp., 248 Ga. 147 , 281 S.E.2d 586 (1981); Hines v. Good Housekeeping Shop, 161 Ga. App. 318 , 291 S.E.2d 238 (1982); National Carloading Corp. v. Security Van Lines, 164 Ga. App. 850 , 297 S.E.2d 740 (1982); National City Bank v. Busbin, 175 Ga. App. 103 , 332 S.E.2d 678 (1985); Sanders v. Brown, 178 Ga. App. 447 , 343 S.E.2d 722 (1986); Overstreet v. Georgia Farm Bureau Mut. Ins. Co., 182 Ga. App. 415 , 355 S.E.2d 744 (1987); Griffith v. First Fed. Sav. Bank, 208 Ga. App. 863 , 432 S.E.2d 606 (1993); Vivid Invs., Inc. v. Best W. Inn-Forsyth, Ltd., 991 F.2d 690 (11th Cir. 1993); Citizens Bank & Trust Co. v. Saunders, Stuckey & Mullis, Inc., 214 Ga. App. 333 , 447 S.E.2d 632 (1994); St. Paul Fire & Marine Ins. Co. v. Clark, 255 Ga. App. 14 , 566 S.E.2d 2 (2002).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Actions, §§ 26, 27, 99. 25 Am. Jur. 2d, Election of Remedies, § 7 et seq.

C.J.S. - 1 C.J.S., Actions, §§ 47, 56, 79. 28 C.J.S., Election of Remedies, § 1 et seq.

ALR. - Election of remedies by owner against public authority or corporation having power of eminent domain which unauthorizedly enters land without instituting valid eminent domain proceedings, 101 A.L.R. 373 .

Doctrine of election of remedies as applicable where remedies are pursued against different persons, 116 A.L.R. 601 .

Effect of action as an election of remedy or choice of substantive rights in case of fraud in sale of property, 123 A.L.R. 378 .

Application for, or receipt of, unemployment compensation benefits as affecting claim for workmen's compensation, 96 A.L.R.2d 941.

9-2-5. Prosecution of two simultaneous actions for same cause against same party prohibited; election; pendency of former action as defense; exception.

  1. No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.
  2. The rule requiring a plaintiff to elect shall not apply to a prior attachment against property where the defendant is subsequently served personally nor to an attachment obtained during the pendency of an action. However, the judgment in the case against the person shall set out the fact of its identity with the proceedings against the property.

    (Orig. Code 1863, §§ 2835, 2836; Code 1868, §§ 2843, 2844; Code 1873, §§ 2894, 2895; Code 1882, §§ 2894, 2895; Civil Code 1895, §§ 3737, 3739; Civil Code 1910, §§ 4331, 4333; Code 1933, §§ 3-601, 3-605; Ga. L. 1982, p. 3, § 9.)

Cross references. - Pendency of former action good cause for abatement of latter on same cause, § 9-2-44 .

Law reviews. - For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B.J. 24 (1985).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Consideration with O.C.G.A. § 9-2-44 . - O.C.G.A. §§ 9-2-5 and 9-2-44 are closely related in effect and are to be considered and applied together. Huff v. Valentine, 217 Ga. App. 310 , 457 S.E.2d 249 (1995).

Lack of jurisdiction. - Because a dispossessory court never ruled upon or resolved a landlord's claims for past due rent and other damages, and because the dispossessory court lacked jurisdiction over the defaulting tenants, who were served by "nail and mail" service under O.C.G.A. § 44-7-51(a) , the landlord's claims were not barred by the doctrine of res judicata under O.C.G.A. § 9-12-40 or subject to a plea of abatement under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) . Bhindi Bros. v. Patel, 275 Ga. App. 143 , 619 S.E.2d 814 (2005).

Dismissal with prejudice. - While a trial court could dismiss a neighbor's third complaint pursuant to O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) , the court was not at liberty to do so with prejudice. McLeod v. Clements, 310 Ga. App. 235 , 712 S.E.2d 627 (2011).

Counterclaim erroneously dismissed when separate and distinct parties. - In litigation between two physicians and various entities the physicians control, the trial court erred in dismissing the counterclaim because despite a confusing similarity between the names of the various medical entities at issue, both sides agreed that the entity functioning as the plaintiff in the first lawsuit and the entities functioning as the plaintiffs in the counterclaim in the second lawsuit were, in fact, separate and distinct. Oskouei v. Orthopaedic & Spine Surgery of Atlanta, LLC, 340 Ga. App. 67 , 796 S.E.2d 299 (2017).

Cited in Welchell v. Thompson, 39 Ga. 559 , 99 Am. Dec. 470 (1869); Maher v. State, 53 Ga. 448 , 21 Am. R. 269 (1874); Chisholm v. Lewis & Co., 66 Ga. 729 (1881); Heath v. Bates, 70 Ga. 633 (1883); Georgia R.R. & Banking Co. v. Gardner, 118 Ga. 723 , 45 S.E. 600 (1903); Randolph v. Brunswick & B.R.R., 120 Ga. 969 , 48 S.E. 396 (1904); Baker v. Davis, 127 Ga. 649 , 57 S.E. 62 (1907); Board of Educ. v. Day, 128 Ga. 156 , 57 S.E. 359 (1907); Eppinger v. Seagraves, 141 Ga. 639 , 81 S.E. 1035 (1914); Jordan v. Jenkins, 17 Ga. App. 58 , 86 S.E. 278 (1915); Boseman v. Carter, 18 Ga. App. 578 , 90 S.E. 101 (1916); Sampson v. McRae, 22 Ga. App. 703 , 97 S.E. 98 (1918); Vickers v. Robinson, 157 Ga. 731 , 122 S.E. 405 (1924); Hines v. Moore, 168 Ga. 451 , 148 S.E. 162 (1929); Donaldson v. Tripod Paint Co., 43 Ga. App. 3 , 158 S.E. 640 (1931); Personal Fin. Co. v. Evans, 45 Ga. App. 54 , 163 S.E. 252 (1932); Citizens' & Contractors' Bank v. Johnson, 175 Ga. 559 , 165 S.E. 579 (1932); Gormley v. Askew, 177 Ga. 554 , 170 S.E. 674 (1933); Rozetta v. Rozetta, 181 Ga. 494 , 182 S.E. 847 (1935); Mosely v. Mosely, 181 Ga. 543 , 182 S.E. 849 (1935); Dollar v. Fred W. Amend Co., 184 Ga. 432 , 191 S.E. 696 (1937); Bruce v. Bruce, 195 Ga. 868 , 25 S.E.2d 654 (1943); Hieber v. Buchanan, 202 Ga. 831 , 44 S.E.2d 647 (1947); Dempsey v. Dempsey, 203 Ga. 225 , 46 S.E.2d 156 (1948); Miller Serv., Inc. v. Miller, 77 Ga. App. 413 , 48 S.E.2d 761 (1948); Southeastern Greyhound Lines v. Wells, 204 Ga. App. 814 , 51 S.E.2d 569 (1949); Tucker v. Lea, 206 Ga. 538 , 58 S.E.2d 434 (1950); Georgia Power Co. v. Fountain, 207 Ga. 361 , 61 S.E.2d 454 (1950); Buie v. Waters, 209 Ga. 608 , 74 S.E.2d 883 (1953); Moon v. Price, 213 F.2d 794 (5th Cir. 1954); Crawford v. Sumerau, 101 Ga. App. 32 , 112 S.E.2d 682 (1960); Lowry v. Smith, 103 Ga. App. 601 , 120 S.E.2d 47 (1961); Pattillo v. Atlanta & W.P.R.R., 216 Ga. 806 , 120 S.E.2d 176 (1961); Gay v. Crockett, 217 Ga. 288 , 122 S.E.2d 241 (1961); Housing Auth. v. Heart of Atlanta Motel, Inc., 220 Ga. 192 , 137 S.E.2d 647 (1964); Winn v. National Bank, 110 Ga. App. 133 , 138 S.E.2d 89 (1964); Banks v. Employees Loan & Thrift Corp., 112 Ga. App. 38 , 143 S.E.2d 787 (1965); Daniel v. Dixie Plumbing Supply Co., 112 Ga. App. 427 , 145 S.E.2d 796 (1965); Davis v. Ware County Bd. of Educ., 227 Ga. 41 , 178 S.E.2d 857 (1970); Board of Educ. v. Shirley, 227 Ga. 565 , 181 S.E.2d 826 (1971); Hinson v. Department of Transp., 230 Ga. 314 , 196 S.E.2d 883 (1973); Watts v. Kundtz, 128 Ga. App. 797 , 197 S.E.2d 859 (1973); Rowe v. Citizens & S. Nat'l Bank, 129 Ga. App. 251 , 199 S.E.2d 319 (1973); Jernigan v. Collier, 131 Ga. App. 162 , 205 S.E.2d 450 (1974); Perimeter Billjohn, Inc. v. Perimeter Mall, Inc., 141 Ga. App. 343 , 233 S.E.2d 470 (1977); Jones v. Doe, 143 Ga. App. 451 , 238 S.E.2d 555 (1977); Rinconcito Latino, Inc. v. Eriksson, 145 Ga. App. 340 , 243 S.E.2d 721 (1978); Rothstein v. Consuegra, 153 Ga. App. 620 , 266 S.E.2d 309 (1980); Foster v. State, 157 Ga. App. 554 , 278 S.E.2d 136 (1981); Ranger Constr. Co. v. Robertshaw Controls Co., 158 Ga. App. 179 , 279 S.E.2d 477 (1981); Cale v. Cale, 160 Ga. App. 434 , 287 S.E.2d 362 (1981); Florida Rock Indus., Inc. v. Smith, 163 Ga. App. 361 , 294 S.E.2d 553 (1982); Shepherd v. Metropolitan Property & Liab. Ins. Co., 163 Ga. App. 650 , 294 S.E.2d 638 (1982); Equitable Gen. Ins. Co. v. Johnson, 166 Ga. App. 215 , 303 S.E.2d 757 (1983); Dawson v. McCart, 169 Ga. App. 434 , 313 S.E.2d 135 (1984); Hilliard v. Edwards, 169 Ga. App. 808 , 315 S.E.2d 39 (1984); Avant v. Douglas County, 253 Ga. 225 , 319 S.E.2d 442 (1984); Moore v. Lamar, 182 Ga. App. 742 , 356 S.E.2d 742 (1987); Mitchell v. Wyatt, 192 Ga. App. 127 , 384 S.E.2d 227 (1989); Holcomb v. Ellis, 259 Ga. 625 , 385 S.E.2d 670 (1989); Johnson v. Collins, 221 Ga. App. 182 , 470 S.E.2d 780 (1996); Georgia DOT v. Evans, 269 Ga. 400 , 499 S.E.2d 321 (1998); Adams v. Tricord, LLC, 299 Ga. App. 310 , 682 S.E.2d 588 (2009).

Pendency of Former Action

Legislative intent. - Legislative declaration in O.C.G.A. § 9-2-5 is totally consistent with prevailing jurisprudential philosophy that a party is not entitled to prosecute a suit for the same cause of action in different courts, or in the same tribunal, at the same time. Clark v. Weaver, 159 Ga. App. 594 , 284 S.E.2d 95 (1981).

Provisions of this section are mandatory and they are plain and unmistakable. Jones v. Rich's, Inc., 81 Ga. App. 841 , 60 S.E.2d 402 (1950).

This section was intended to protect a party against vexatious suits on the same cause of action. Wilson v. Atlanta, K. & N. Ry., 115 Ga. 171 , 41 S.E. 699 (1902).

Splitting causes of action does not cause injustice. - Rule against splitting causes of action embodied in this section, is neither harsh or inflexible, and its proper administration need never cause injustice or deny the plaintiff any part of the fair and full determination of the plaintiff's right. Georgia Ry. & Power Co. v. Endsley, 167 Ga. 439 , 145 S.E. 851 , 62 A.L.R. 256 (1928).

O.C.G.A. § 9-2-5 prohibits plaintiff from prosecuting two actions for same cause and against the same party, and, if the actions are commenced at different times, the pendency of the former shall be a good defense to the latter. Griffin v. Griffin, 248 Ga. 743 , 285 S.E.2d 710 (1982).

When a limited liability company brought a tort action against a county industrial development authority after filing an exception to a special master's award in a condemnation proceeding, the trial court properly dismissed the tort action under O.C.G.A. §§ 9-2-5(a) and 9-12-40 . In both the condemnation action and the tort action, the company sought a monetary award on the ground that the condemnation rendered its contract a nullity and that the condemnation action was brought in bad faith. Coastal Water & Sewerage Co. v. Effingham County Indus. Dev. Auth., 288 Ga. App. 422 , 654 S.E.2d 236 (2007).

O.C.G.A. § 9-2-5 provides mechanism by which one viable action is determined. Clark v. Weaver, 159 Ga. App. 594 , 284 S.E.2d 95 (1981).

Applicability. - O.C.G.A. § 9-2-5 is part of the Civil Practice Act, O.C.G.A. T. 9, C. 11, and does not apply in criminal proceedings. Cox v. State, 203 Ga. App. 869 , 418 S.E.2d 133 (1992).

Appellate court properly dismissed a second fraud and breach of contract action filed in a separate county, which was identical to one previously filed by the same plaintiff against the same defendants, under the prior pending litigation doctrine pursuant to O.C.G.A. § 9-2-5 , and not under O.C.G.A. § 9-11-12(b)(6), which acted as a defense to the later filed action. Kirkland v. Tamplin, 283 Ga. App. 596 , 642 S.E.2d 125 , cert. denied, No. S07C0915, 2007 Ga. LEXIS 508 (Ga. 2007); cert. denied, 552 U.S. 1010, 128 S. Ct. 545 , 169 L. Ed. 2 d 373 (2007).

First suit absolute defense to second suit. - If two suits are filed at different times each for the same cause and against the same party, the pendency of the first shall be a good defense to the latter. Drohan v. Carriage Carpet Mills, 175 Ga. App. 717 , 334 S.E.2d 219 (1985).

Plaintiffs' suit against three corporations was barred by O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) as a prior suit involving the same parties and claims had been dismissed and an appeal of the dismissal was pending. That there were minor differences between the two complaints and that plaintiffs added new defendants was immaterial. Sadi Holdings, LLC v. Lib Props., Ltd, 293 Ga. App. 23 , 666 S.E.2d 446 (2008).

"Renewal suit" filed by a limited liability company (LLC) and the company's manager against three corporations was properly dismissed under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) as the LLC and manager's prior and nearly identical suit against the corporation had been dismissed and an appeal was pending. However, the second dismissal should have been without prejudice under O.C.G.A. § 9-11-41(b) as the corporation's plea in abatement did not challenge the merits of that suit. Sadi Holdings, LLC v. Lib Props., Ltd, 293 Ga. App. 23 , 666 S.E.2d 446 (2008).

Renewal action not barred although counterclaim from prior action still pending. - After a car buyer dismissed the buyer's fraud and breach of contract action against the seller while a counterclaim was pending and then attempted to refile the buyer's claims under the renewal statute, O.C.G.A. § 9-2-61 , the trial court erred in dismissing the renewed action under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) . Code Section 9-2-5(a) precluded simultaneous prosecution of the same claims, and the buyer was not prosecuting the same claims simultaneously, given that the buyer dismissed the buyer's claims in the first case. Brock v. C & M Motors, Inc., 337 Ga. App. 288 , 787 S.E.2d 259 (2016).

Remedy for violation of subsection (a) of O.C.G.A. § 9-2-5 is in the nature of a shield by which an aggrieved defendant may protect oneself from defending duplicitous lawsuits. There is no additional remedy in the nature of a sword by which a defendant may prosecute an action for damages against a purported violator of the statute. Hose v. Jason Property Mgt. Co., 178 Ga. App. 661 , 344 S.E.2d 483 (1986).

When actions are commenced at different times, plaintiff has no election, and must proceed with the initially filed action, and such former action shall be a good defense to the latter. If, however, the actions are filed simultaneously none of the actions are either "former" or "latter," and the plaintiff must select the case the plaintiff will pursue and the others must be dismissed. O.C.G.A. § 9-2-5 allows the plaintiff to elect the case which the plaintiff will prosecute and not the one which the plaintiff will first prosecute. Clark v. Weaver, 159 Ga. App. 594 , 284 S.E.2d 95 (1981).

When actions in two counties involve the same plaintiffs, the same defendants, and the same cause of action, the fact that the Cobb County actions were brought separately by these same plaintiffs and were then combined in one action in Colquitt County is a difference without a distinction. Creel v. Welker & Assocs., 174 Ga. App. 877 , 332 S.E.2d 5 (1985).

Controlling statute over § 9-2-4 . - Former Code 1933, §§ 3-601 and 3-605 (see now O.C.G.A. § 9-2-5 ) provided a defendant with a specific defense against a plaintiff who came within its parameters and would prevail over the general terms of former Code 1933, § 3-114 (see now O.C.G.A. § 9-2-4 ) if all of the conditions thereof were satisfied. Cooper v. Public Fin. Corp., 146 Ga. App. 250 , 246 S.E.2d 684 (1978).

Statute is made applicable to tort actions by former Civil Code 1895, § 3903 (see now O.C.G.A. § 51-11-5 ). Wilson v. Atlanta, K. & N. Ry., 115 Ga. 171 , 41 S.E. 699 (1902).

Application to federal court. - This section does not apply to a suit pending in federal court, but when the federal court has acquired possession of the res or taken steps equivalent to the exercise of dominion over it, that court will acquire exclusive jurisdiction. Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233 , 96 S.E. 424 (1918).

Pendency of a prior action in the federal court brought by a defendant in a negligence action in the state court did not bar the defendant's third-party complaint in the state case, even though it involved the same parties and same cause of action. Huff v. Valentine, 217 Ga. App. 310 , 457 S.E.2d 249 (1995).

Plaintiff is not at liberty to split up a plaintiff's demand and prosecute it piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fails. Cooper v. Public Fin. Corp., 146 Ga. App. 250 , 246 S.E.2d 684 (1978).

Pendency of one proceeding is good defense to second proceeding. Terrell v. Griffith, 129 Ga. App. 675 , 200 S.E.2d 485 (1973).

Pendency of a former action is a good defense to a second action brought by the same plaintiff against the same defendant and involving the same cause of action as in the former suit, and a motion for summary judgment will lie to the second suit since it cannot be tried as long as the first suit is pending. Cherry v. Gilbert, 124 Ga. App. 847 , 186 S.E.2d 319 (1971).

From a single wrong only one cause of action can arise. Ellis v. Kite, 107 Ga. App. 237 , 129 S.E.2d 547 (1963).

If there is substantial identity of wrong, which necessarily includes identity of the right violated, there is substantial identity of cause of action. Ellis v. Kite, 107 Ga. App. 237 , 129 S.E.2d 547 (1963).

No plaintiff is entitled to prosecute two actions in the courts of this state at the same time, for the same cause, and against the same party; in such a case the defendant may require the plaintiff to elect which the plaintiff will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter, if commenced at different times. Baxter v. Crandall, 45 Ga. App. 125 , 163 S.E. 526 (1932).

Plaintiff cannot pursue at the same time against the same defendant a cause of action based upon the same subject matter in two different courts. Jones v. Rich's, Inc., 81 Ga. App. 841 , 60 S.E.2d 402 (1950).

Dismissal of action. - Claims that were subject to dismissal because the claims were duplicative of prior pending actions and subject to dismissal under O.C.G.A. § 9-2-5 were not void; thus, voluntary dismissal without prejudice of such claims was a dismissal within the meaning of O.C.G.A. § 9-11-41 . Zohoury v. Zohouri, 218 Ga. App. 748 , 463 S.E.2d 141 (1995).

Trial court did not err in dismissing an officer's claims against entities pursuant to the "prior action pending doctrine," O.C.G.A. § 9-2-5(a) , because the officer previously filed a similar action in the same court that was transferred to another county; the claims in the two actions were similar and the same facts were pled in both actions. Odion v. Varon, 312 Ga. App. 242 , 718 S.E.2d 23 (2011), cert. denied, No. S12C0399, 2012 Ga. LEXIS 561 (Ga. 2012).

If the first suit is a wholly abortive effort, which the defendant is not legally called upon to resist, the pendency of the first suit shall not abate second action. Jones v. Rich's, Inc., 81 Ga. App. 841 , 60 S.E.2d 402 (1950).

Common issues but possibility of different ones being raised. - Even though there was a common issue of liability in each of two actions brought by a party, where additional liability issues could be raised in one action, mandatory abatement or dismissal was not authorized. International Telecommunications Exch. Corp. v. MCI Telecommunications Corp., 214 Ga. App. 416 , 448 S.E.2d 71 (1994).

Error to dismiss complaint when defendant not party to pending action. - As O.C.G.A. § 9-2-5 requires an identity of parties before the defense of prior pending action is viable, it was error for the trial court to apply the defense and dismiss the complaint since the defendant was not a party to the pending action when the suit was filed. P.H.L. Dev. Corp. v. Smith, 174 Ga. App. 328 , 329 S.E.2d 545 (1985); McLain Bldg. Materials, Inc. v. Hicks, 205 Ga. App. 767 , 423 S.E.2d 681 (1992).

Dismissal of action not justified. - Dismissal of an action by foreign corporations against a manufacturer on the basis of a prior pending action in the courts of another state was inappropriate in consideration of the provisions of O.C.G.A. §§ 9-2-5 , 9-2-44 , and 9-2-45 . Flagg Energy Dev. Corp. v. GMC, 223 Ga. App. 259 , 477 S.E.2d 402 (1996).

Status of second action. - Second action is not necessarily void ab initio where there is a prior pending action. Parsons, Brinckerhoff, Quade & Douglas, Inc. v. Johnson, 161 Ga. App. 634 , 288 S.E.2d 320 (1982).

Since five years have not yet passed since last order was filed in prior action, the prior action is still pending when a plea of pendency is filed. That being so, the pleader is entitled to a judgment in the pleader's favor because the key event is not the entry of an order in the second action but the filing of the defense of pendency. Hammond v. State, 168 Ga. App. 508 , 308 S.E.2d 701 (1983).

Copy of pleading proof of former action. - Certified copy of the pleading in a former case offered into evidence at a hearing on a motion for summary judgment is sufficient proof of the pendency of the former action. Grant v. Wilkinson, 167 Ga. App. 83 , 306 S.E.2d 63 (1983).

Dismissal of former action for lack of jurisdiction. - Although this section prohibits a plaintiff from prosecuting two actions for the same cause and against the same party, when the former suit is dismissed for lack of jurisdiction, plaintiff is not prohibited from commencing another suit for the same cause against the same party in a court having jurisdiction to grant the relief sought. Harrison v. Speidel, 244 Ga. 643 , 261 S.E.2d 577 (1979).

Determination of jurisdiction. - Until the question of jurisdiction is determined by the court having power to pass thereon, no other court should interfere. Wilson v. Atlanta, K. & N. Ry., 115 Ga. 171 , 41 S.E. 699 (1902).

No action "pending" without service. - Mere filing of petition, without proper service, will not constitute a pending suit. McClendon & Co. v. Hermando Phosphate Co., 100 Ga. 219 , 28 S.E. 152 (1897); Kirby v. Johnson County Sav. Bank, 12 Ga. App. 157 , 76 S.E. 996 (1913).

Because the Department of Transportation failed to show that service of process had been effectuated in an alleged prior pending personal injury suit filed in Brantley County, based on the same accident a driver sued upon in Wayne County, the Brantley County suit was not "pending," as that term was defined in O.C.G.A. § 9-2-5(a) . Thus, the trial court erred in dismissing the driver's Wayne County suit. Watson v. Ga. DOT, 288 Ga. App. 40 , 653 S.E.2d 763 (2007).

Filing of petition without service does not operate to commence a suit and no suit is pending until the suit has been served. Cherry v. Gilbert, 124 Ga. App. 847 , 186 S.E.2d 319 (1971).

When a defendant files a counterclaim after the plaintiff voluntarily dismisses an action in which lawful service was never had, the counterclaim does not keep the first action pending so as to authorize abatement of another action under this section. Swanson v. Holloway, 128 Ga. App. 453 , 197 S.E.2d 150 (1973).

Return of sheriff reciting service in another county was prima facie conclusive of the facts therein recited, and pendency of undetermined and undisposed of traverse did not operate to destroy the status of the action in the other county as a pending suit. Baxter v. Crandall, 45 Ga. App. 125 , 163 S.E. 526 (1932).

All the parties must be the same in order for the pendency of the first suit to abate the second. Haisten v. Tanner-Brice Co., 211 Ga. 821 , 89 S.E.2d 172 (1955).

Identity of parties must be same. - Parties in mandamus proceeding to compel trustees to pay a retirement and in certiorari proceeding to review finding of trustees are not the same. Aldredge v. Rosser, 210 Ga. 28 , 77 S.E.2d 515 (1953).

There is no defense under this section when the plaintiffs in the first action are in nowise involved in the second, even though plaintiffs in the later action were in actuality plaintiffs in the first as intervenors. Haisten v. Tanner-Brice Co., 211 Ga. 821 , 89 S.E.2d 172 (1955).

O.C.G.A. § 9-2-5 did not bar plaintiff's action against her former husband's corporation for damages to a warehouse because of the inclusion of a similar claim against the former husband in a contempt action. Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532 , 478 S.E.2d 601 (1996).

Parties must occupy same status. - This section requires that the suits must be between the same parties based on the same cause of action, and not only must the parties be the same, but also they must occupy the same status in both suits. Tinsley v. Beeler, 134 Ga. App. 514 , 215 S.E.2d 280 (1975).

In order for O.C.G.A. § 9-2-5 to be applicable, the parties must occupy the same status in both suits. Bedingfield v. Bedingfield, 248 Ga. 91 , 281 S.E.2d 554 , appeal dismissed, 248 Ga. 147 , 282 S.E.2d 641 (1981).

Dismissal of one party from an action based on a prior pending suit was not erroneous simply because all other parties to the two suits were not identical and because a party was a defendant in the first action and plaintiff in the second; the same party was plaintiff with respect to its counterclaim in the first action as well as its claim in the second action and, thus, the required identity of status was present. McLain Bldg. Materials, Inc. v. Hicks, 205 Ga. App. 767 , 423 S.E.2d 681 (1992).

Effect of joinder or substitution. - Trial court should have determined whether party could have been added as a party plaintiff after joinder or substitution was sought to 1995 suit; therefore, if trial court allowed addition of party in 1995 action, the party's 1997 action should have been dismissed as identical. Tri-County Inv. Group v. Southern States, Inc., 231 Ga. App. 632 , 500 S.E.2d 22 (1998).

Dispossessory actions by landlord. - Dispossessory action filed by a landlord against a tenant which sought possession of the premises and payment of past due rent for April 1984 did not preclude a second action seeking possession and payment of past due rent for May 1984; clearly, the two proceedings were not the same cause of action. Hose v. Jason Property Mgt. Co., 178 Ga. App. 661 , 344 S.E.2d 483 (1986).

Attack based on simultaneous pleadings. - Because an attack based on simultaneous pleadings does not go to the merits of the underlying claim, it is more appropriately asserted by a motion to dismiss than a motion for summary judgment. Liner v. North, 184 Ga. App. 74 , 360 S.E.2d 637 (1987).

Addition of totally new parties by amendment does not relate back to the original suit for purposes of determining whether a prior pending suit exists. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533 , 221 S.E.2d 697 (1975).

Subsequent voluntary dismissal of the first suit does not preserve the second suit insofar as this section is concerned. A.H. Robins Co. v. Sullivan, 136 Ga. App. 533 , 221 S.E.2d 697 (1975).

Under this section, if two suits are filed at different times each for the same cause and against the same party, the pendency of the first shall be a good defense to the latter; the effect of the defense cannot be avoided even by a dismissal of the first suit. Steele v. Steele, 243 Ga. 522 , 255 S.E.2d 43 (1979); Astin v. Callahan, 222 Ga. App. 226 , 474 S.E.2d 81 (1996).

After pleading, plaintiff cannot elect which suit to pursue. - Under this section one may not elect to dismiss a first suit where two suits based on the same cause of action were filed at separate times, as once a plea raising the issue of pendency of another suit is filed it is too late for plaintiff to elect which proceeding the plaintiff chooses. Terrell v. Griffith, 129 Ga. App. 675 , 200 S.E.2d 485 (1973).

Effect of the plea or defense of a pending former suit cannot be avoided even by a dismissal of the first suit. McPeake v. Colley, 116 Ga. App. 320 , 157 S.E.2d 562 (1967), overruled on other grounds, Dawson v. McCart, 169 Ga. App. 434 , 313 S.E.2d 135 (1984).

Same defendant and same cause of action. - If pending a suit another be brought against the same defendant for the same cause of action, the pendency of the first suit may be pleaded in abatement of the second, and the plaintiff cannot defeat the plea under this section by dismissing the suit first brought. Singer v. Scott, 44 Ga. 659 (1872).

Dismissal of cross action filed in first suit would not avoid plea in abatement filed to second suit in another court. Jones v. Rich's, Inc., 81 Ga. App. 841 , 60 S.E.2d 402 (1950); Minniefield v. Sylvester, 193 Ga. App. 484 , 388 S.E.2d 526 (1989).

Shareholder's action to inspect corporate records brought in Cobb County was not barred by a prior action brought by the shareholder in Fulton County because the parties were not identical and the causes of action were not the same. The Cobb County suit sought only access to corporate records and attorney fees, while the Fulton County suit sought damages for breach of fiduciary duties, punitive damages, attorney fees, and the forced repurchase of the shareholder's shares. Advanced Automation, Inc. v. Fitzgerald, 312 Ga. App. 406 , 718 S.E.2d 607 (2011).

Pendency of the related actions was good cause for abatement of the instant case because the related actions and the instant case both involved the landowner's alleged rights to title and possession of the same land, the landowner properly asserted the landowner's claims of wrongful foreclosure in the prior pending related actions, and a decision in the landowner's favor on the landowner's wrongful foreclosure claims in the related actions could estop the present dispossessory proceeding. Premium Funding Solutions, LLC v. Metro Atlanta Task Force for the Homeless, Inc., 333 Ga. App. 718 , 776 S.E.2d 504 (2015).

Trial court erred by finding that two pending actions brought by a hospital against the Department of Community Health and a competing hospital involved the same cause of action under the prior pending action doctrine, O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) ; although both cases relied on one similar argument, the hospital's petition for judicial review of the final agency decision raised additional issues that could not have been brought in the hospital's earlier declaratory judgment action. Doctors Hosp. of Augusta, LLC v. Dep't of Cmty. Health, 344 Ga. App. 583 , 811 S.E.2d 64 (2018).

Motion for summary judgment will lie on the ground of the pendency of a former original action, in a second action brought by the same plaintiff against the same defendant and involving the same cause of action as in the former action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165 , 190 S.E.2d 98 (1972); Stagl v. Assurance Co. of Am., 245 Ga. App. 8 , 539 S.E.2d 173 (2000).

Motion for summary judgment will lie on the ground of the pendency of substantially the same cross-claim filed against the party in a former original action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165 , 190 S.E.2d 98 (1972).

Action to collect on note and foreclosure on personal property securing payment of the same note are different causes of action, and pendency of the former does not serve to abate the latter. Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94 , 222 S.E.2d 881 (1975).

Prior pending wrongful foreclosure suit did not require dismissal of condemnation proceeding. - Prior pending wrongful foreclosure action did not require the abatement and dismissal of a bank's application for confirmation under O.C.G.A. § 44-14-161 because the confirmation proceeding did not involve the same cause of action as the wrongful foreclosure suit, but was instead a special statutory proceeding and not a complaint which initiated a civil action or suit. BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759 , 670 S.E.2d 210 (2008).

Condemnation proceeding distinct from inverse condemnation action. - Pendency of the county's condemnation proceeding provided no basis for dismissal of the property owner's inverse condemnation action because a claim for condemnation was distinct from a claim for inverse condemnation and the damages recoverable by a property owner for each cause of action was different; thus, the two cases were not for the same cause of action. Morgan County v. Gay, 352 Ga. App. 555 , 834 S.E.2d 576 (2019), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. 2020); cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. 2020); cert. denied, No. S20C0332, 2020 Ga. LEXIS 398 (Ga. 2020).

Complaint seeking injunctive relief against county corporation is not subject to dismissal because of the pendency of a mandamus action in another county against the corporation and its president. Tallant v. Executive Equities, Inc., 230 Ga. 172 , 195 S.E.2d 904 (1973).

Both garnishment and contempt actions may be pursued simultaneously for the collection or satisfaction of the payments owed under a divorce judgment. Herring v. Herring, 138 Ga. App. 145 , 225 S.E.2d 697 (1976).

Suing on a note will not bar ejectment action on a deed given to secure the note. Dykes v. McVay, 67 Ga. 502 (1881).

Abatement of action based on subject of compulsory counterclaim. - Subsequent action by a parent for wrongful death of a child is abated by pending original action against the parent for damages arising from the same automobile accident as a wrongful death claim was a compulsory counterclaim in the original action. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90 , 222 S.E.2d 878 (1975).

Dismissal of counterclaim in second action erroneously denied. - In a personal injury accident between two drivers, the trial court erroneously denied the first driver's motion to dismiss a counterclaim asserted by the second driver because the second driver had a prior pending action against the first driver in another county, and the parties' status in both actions was identical. Moreover, given the first driver's assurances that the instant suit would be dismissed in favor of defending the second driver's claims in the prior pending action, the denial of the first driver's motion to dismiss the second driver's counterclaim was inconsistent with the purpose of O.C.G.A. § 9-2-5 . Jenkins v. Crea, 289 Ga. App. 174 , 656 S.E.2d 849 (2008).

Judgment granted upon failure to raise defense. - There was no merit in tenants' contention that despite having failed to raise the pendency of their landlord's prior dispossessory action as a defense to a subsequent dispossessory action, the subsequent action should nevertheless be barred. It was incumbent upon the tenants to answer and raise whatever defenses the tenants thought applicable. No answer having been filed, the trial court properly granted judgment by default. Dickens v. First Capital Income Properties, Ltd., 187 Ga. App. 607 , 371 S.E.2d 130 (1988).

Action not barred because of insurance payments. - Plaintiff was not barred from prosecuting a loss of consortium action although the plaintiff had received and accepted payment from the defendant's insurance company for the same automobile collision because the payment previously received was not as a result of a lawsuit, but was received prior to the filing of any complaint. Therefore, it could not be said as a matter of law that the plaintiff impermissibly split the plaintiff's cause of action. Hayes v. McFarlane, 187 Ga. App. 90 , 369 S.E.2d 286 , cert. denied, 187 Ga. App. 90 7 , 369 S.E.2d 286 (1988).

Action barred. - After a former employer asserted claims identical to ones that were compulsory counterclaims in earlier suits, the trial court erred in denying a plea in abatement to all but one of the former employees pursuant to O.C.G.A. §§ 9-2-5 and 9-2-44 ; the trial court did not abuse the court's O.C.G.A. § 9-5-8 discretion in staying two prior cases pursuant to O.C.G.A. §§ 9-5-1 and 9-5-3 . Smith v. Tronitec, Inc., 277 Ga. 210 , 586 S.E.2d 661 (2003).

Bank sued the bank's customer to recover for an overdraft; before filing the customer's counterclaim, the customer sued the bank in another county. As the customer raised the same claims in the customer's complaint and counterclaim, and as there was a logical relationship between the parties' claims, the customer's counterclaim was compulsory; therefore, the customer's suit against the bank was barred by O.C.G.A. § 9-2-5(a) . Steve A. Martin Agency, Inc. v. PlantersFIRST Corp., 297 Ga. App. 780 , 678 S.E.2d 186 (2009).

As a bank filed suit against the bank's customer before the latter filed suit against the former, and both suits involved the same cause of action, the customer's suit was properly dismissed under O.C.G.A. § 9-2-5(a) . Though the bank did not serve the customer until the customer's suit was filed, the service on the customer related back to the date of filing, which established the date the bank's suit was commenced. Steve A. Martin Agency, Inc. v. PlantersFIRST Corp., 297 Ga. App. 780 , 678 S.E.2d 186 (2009).

Attachments

Separate remedies. - Common-law action and attachment proceedings are considered by the law as separate and distinct remedies which a party may pursue concurrently and the satisfaction of one satisfies the other. Sheehan v. Ruben, 83 Ga. App. 336 , 63 S.E.2d 605 (1951).

One may pursue a common-law action and a proceeding in attachment for the same debt, at the same time, against the same party. Sheehan v. Ruben, 83 Ga. App. 336 , 63 S.E.2d 605 (1951).

Action in this state and attachment in another. - Under this section, an action in this state against the debtor and attachment in another state against the debtor's property may proceed at the same time for the same debt. Lightfoot v. Planters' Banking Co., 58 Ga. 136 (1877).

Judgment to credit defendant with attachment sale proceeds. - When holder of title-retention note given for purchase money of machinery files suit on note, defendant purchaser cannot set up in bar or in abatement that plaintiff had previously in same court instituted a purchase-money attachment; if judgment is rendered for plaintiff, court should mold the court's judgment to credit defendant with any sums realized from the sale of the property under attachment proceedings. Hayes v. International Harvester Co. of Am., 52 Ga. App. 328 , 183 S.E. 197 (1935).

Attachments under former Civil Code 1910, § 5071 (see now O.C.G.A. § 18-3-4 ) were expressly excepted from the provisions of subsection (a) of former Code 1933, §§ 3-601 and 3-605 (see now O.C.G.A. § 9-2-5 ) by subsection (b). Johnson & Son v. Friedman-Shelby Shoe Co., 15 Ga. App. 561 , 83 S.E. 969 (1914).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, § 6 et seq. 1 Am. Jur. 2d, Actions, § 32.

9 Am. Jur. Pleading and Practice Forms, Election of Remedies, § 1.

17 Am. Jur. Pleading and Practice Forms, Lis Pendens, § 3.

C.J.S. - 1 C.J.S., Abatement and Revival, § 17 et seq. 1A C.J.S., Actions, § 20.

ALR. - Lis pendens: protection during time allowed for appeal, writ of error, or motion for new trial, 10 A.L.R. 415 .

Plea of pendency of former action as affecting right of pleader to avail himself of objections to the former action, 32 A.L.R. 1339 .

Action or suit as abating mandamus proceeding or vice versa, 37 A.L.R. 1432 .

Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806 .

Rule against splitting cause of action as applicable to acceptance of payment of less than all claims or items of claims, 87 A.L.R. 781 .

Election of remedies by owner against public authority or corporation having power of eminent domain which unauthorizedly enters land without instituting valid eminent domain proceedings, 101 A.L.R. 373 .

Doctrine of election of remedies as applicable where remedies are pursued against different persons, 116 A.L.R. 601 .

Pendency of suit for cancellation, reformation, or rescission of a contract as abating subsequent action to enforce it or to recover damages for its breach, and vice versa, 118 A.L.R. 1240 .

Stage of action at which effective notice of lis pendens may be filed, 130 A.L.R. 943 .

Right of employee of public contractor to maintain action against latter based upon statutory obligation as to rate of wages or upon provisions in that regard in the contract between contractor and the public, 144 A.L.R. 1035 .

Bank depositor's act in seeking restitution from third person to whom, or for benefit of whom, the bank has paid out the deposit, as election of remedy precluding action against bank, 144 A.L.R. 1440 .

Conclusive election of remedies as predicated on commencement of action, or its prosecution short of judgment on the merits, 6 A.L.R.2d 10.

Duration of operation of lis pendens as dependent upon diligent prosecution of suit, 8 A.L.R.2d 986.

Pendency of prior action for absolute or limited divorce between same spouses in same jurisdiction as precluding subsequent action of like nature, 31 A.L.R.2d 442.

Abatement on ground of prior pending action in same jurisdiction as affected by loss by plaintiff in second action of advantage gained therein by attachment, garnishment, or like process, 40 A.L.R.2d 1111.

Right to secure new or successive notice of lis pendens in same or new action after loss or cancellation of original notice, 52 A.L.R.2d 1308.

Pleading of election of remedies, 99 A.L.R.2d 1315.

Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400.

Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa, 94 A.L.R.3d 676.

9-2-6. Demand prior to action not necessary.

No demand shall be necessary before the commencement of an action, except in such cases as the law or the contract prescribes.

(Orig. Code 1863, § 3179; Code 1868, § 3190; Code 1873, § 3255; Code 1882, § 3255; Civil Code 1895, § 4935; Civil Code 1910, § 5512; Code 1933, § 3-106.)

JUDICIAL DECISIONS

When demand is condition precedent. - As a general rule, a demand is a condition precedent to suit when the demand constitutes an essential element of the cause of action, as when there is no precedent debt or duty and the defendant cannot properly be said to be in default until a demand has been made; in such a case, plaintiff cannot wait and fix the liability merely by filing suit. Cheeves v. Ayers, 43 Ga. App. 454 , 159 S.E. 299 (1931).

Filing of suit was not a sufficient demand or call. Cheeves v. Ayers, 43 Ga. App. 454 , 159 S.E. 299 (1931).

In action for money had and received it is not necessary to allege a demand for and refusal of payment. Morgan v. Hutcheson, 61 Ga. App. 763 , 7 S.E.2d 691 (1940).

Cited in Slaton v. Morrison, 144 Ga. 471 , 87 S.E. 390 (1915); Clarke v. Upchurch, 31 Ga. App. 601 , 121 S.E. 525 (1924); Jasper Sch. Dist. v. Gormley, 57 Ga. App. 537 , 196 S.E. 232 (1938); Evans v. Brown, 196 Ga. 634 , 27 S.E.2d 300 (1943); Jennings v. Stewart, 106 Ga. App. 689 , 127 S.E.2d 842 (1962); Studdard v. Evans, 108 Ga. App. 819 , 135 S.E.2d 60 (1964); Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363 , 203 S.E.2d 587 (1973).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Actions, §§ 77 et seq., 82.

C.J.S. - 1A C.J.S., Actions, § 66.

ALR. - Commencement of action as compliance with or substitute for statutory notice as condition of action for injury to person or property, 101 A.L.R. 726 .

Effect of failure before commencing action to obtain leave under statute providing that no action shall be brought upon a judgment without leave of court or judge, 160 A.L.R. 605 .

9-2-7. Implied promise to pay for services or property.

Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof. However, this presumption does not usually arise in cases between very near relatives.

(Civil Code 1895, § 4936; Civil Code 1910, § 5513; Code 1933, § 3-107.)

History of section. - This Code section is derived from the decision in Hudson v. Hudson, 90 Ga. 581 , 16 S. E. 349 (1892).

Law reviews. - For article discussing quantum meruit actions by attorneys against clients, see 16 Ga. St. B.J. 150 (1980). For note, the voluntary-payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982). For comment on Cooper v. Cooper, 59 Ga. App. 832 , 2 S.E.2d 145 (1939), see 2 Ga. B.J. 41 (1939). For comment advocating liberal construction of indefinite employment contract, in light of Gray v. Aiken, 205 Ga. 649 , 54 S.E.2d 587 (1949), see 1 Mercer L. Rev. 304 (1950).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

To recover in quantum meruit, the plaintiff must show that compensation has not already been received by plaintiff for the reasonable value of the goods or services conferred on the defendant. Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60 , 537 S.E.2d 670 (2000).

Requirement of value. - Obligation under quantum meruit arose when work had value to the recipient; the estate beneficiary agreed to reimburse the tenant for improvements done to a house by the tenant, but the estate and not the beneficiary owned the house; the beneficiary did not receive a benefit worth the total value of the improvements, and judgment against the beneficiary for that total was improper. Langford v. Robinson, 272 Ga. App. 376 , 612 S.E.2d 552 (2005).

Quantum meruit may be sought for breach of written contract. - If there exists a written contract which is broken, one of the remedies for the breach is quantum meruit, that is, in treating the contract as rescinded. Gilbert v. Powell, 165 Ga. App. 504 , 301 S.E.2d 683 (1983).

Recovery under a quantum meruit theory. - Peanut company was entitled to payment from a cooperative bank under a quantum meruit theory because the bank directed the company to receive, process, and shell peanuts, and the company's efforts were valuable to the bank. Farm Credit of Northwest Fla., ACA v. Easom Peanut Co., 312 Ga. App. 374 , 718 S.E.2d 590 (2011), cert. denied, No. S12C0444, 2012 Ga. LEXIS 315 (Ga. 2012).

No benefit conferred. - Debtor failed to allege facts to show a valuable benefit conferred on a property owner through the debtor's settlement agreement with other entities and, thus, the debtor's claim for quantum meruit and unjust enrichment failed. Rohrig Invs., LP v. Knuckle P'ship, LLLP (In re Rohrig Invs., LP), 584 Bankr. 382 (Bankr. N.D. Ga. 2018).

No error in instructions. - Trial court did not err in giving a charge based on O.C.G.A. § 9-2-7 since the issue of implied contract was before the jury. Kent v. Brown, 238 Ga. App. 607 , 518 S.E.2d 737 (1999).

Cited in Rustin v. Norman, 25 Ga. App. 342 , 103 S.E. 194 (1920); Deas v. Jeffcoat, 29 Ga. App. 791 , 116 S.E. 546 (1923); Upchurch v. Maynard, 39 Ga. App. 332 , 147 S.E. 139 (1929); Strahley v. Hendricks, 40 Ga. App. 571 , 150 S.E. 561 (1929); Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771 , 151 S.E. 518 (1930); Georgia, F. & A.R.R. v. Purviance, 42 Ga. App. 519 , 156 S.E. 731 (1931); Watts v. Rich, 49 Ga. App. 334 , 175 S.E. 417 (1934); Brooks v. Sims, 54 Ga. App. 71 , 187 S.E. 254 (1936); Deutsch v. Haas, 55 Ga. App. 467 , 190 S.E. 637 (1937); Evans v. Hartley, 57 Ga. App. 598 , 196 S.E. 273 (1938); McIntire v. McQuade, 63 Ga. App. 116 , 10 S.E.2d 233 (1940); Walden v. Walden, 191 Ga. 182 , 12 S.E.2d 345 (1940); Hendrix v. Crosby, 76 Ga. App. 191 , 45 S.E.2d 448 (1947); Neal v. Stapleton, 203 Ga. 236 , 46 S.E.2d 130 (1948); Larkins v. Boyd, 205 Ga. 69 , 52 S.E.2d 307 (1949); Lawson v. O'Kelley, 81 Ga. App. 883 , 60 S.E.2d 380 (1950); Thomas v. Lomax, 82 Ga. App. 592 , 61 S.E.2d 790 (1950); Rhyne v. Price, 82 Ga. App. 691 , 62 S.E.2d 420 (1950); Guyton v. Young, 84 Ga. App. 155 , 65 S.E.2d 858 (1951); Sykes v. Collins, 208 Ga. 333 , 66 S.E.2d 717 (1951); Abernathy v. Putnam, 85 Ga. App. 644 , 69 S.E.2d 896 (1952); Iteld v. Karp, 85 Ga. App. 835 , 70 S.E.2d 378 (1952); Sheriff v. Weimer, 88 Ga. App. 80 , 76 S.E.2d 33 (1953); Wyatt v. Murray, 90 Ga. App. 138 , 82 S.E.2d 159 (1954); Parker & Co. v. Glenn, 90 Ga. App. 500 , 83 S.E.2d 263 (1954); Thomas McDonald & Co. v. Elliott, 92 Ga. App. 409 , 88 S.E.2d 440 (1955); Stokes & Co. v. McCoy, 212 Ga. 78 , 90 S.E.2d 404 (1955); City of Summerville v. Sellers, 94 Ga. App. 152 , 94 S.E.2d 69 (1956); Peachtree Rd. Realty Assoc. v. Woolard, 97 Ga. App. 455 , 103 S.E.2d 442 (1958); Johnson v. Higgins-McArthur Co., 99 Ga. App. 260 , 108 S.E.2d 299 (1959); Tyson v. Nimick, 99 Ga. App. 722 , 109 S.E.2d 627 (1959); R.P. Farnsworth & Co. v. Tri-State Constr. Co., 271 F.2d 728 (5th Cir. 1959); Planters Rural Tel. Coop. v. Chance, 105 Ga. App. 270 , 124 S.E.2d 300 (1962); Farmers Whse. of Pelham, Inc. v. Collins, 220 Ga. 141 , 137 S.E.2d 619 (1964); Winn v. National Bank, 110 Ga. App. 133 , 138 S.E.2d 89 (1964); McLaughlin v. Farmers Gin Co., 111 Ga. App. 89 , 140 S.E.2d 492 (1965); Georgia Realty & Ins. Co. v. Oakland Consol. of Ga., Inc., 113 Ga. App. 231 , 148 S.E.2d 53 (1966); Parks v. Brissey, 114 Ga. App. 563 , 151 S.E.2d 896 (1966); MacLeod v. Belvedale, Inc., 115 Ga. App. 444 , 154 S.E.2d 756 (1967); Goodman v. Friedman, 117 Ga. App. 475 , 161 S.E.2d 71 (1968); Smallwood v. Conner, 118 Ga. App. 59 , 162 S.E.2d 747 (1968); Perlis v. Horne, 118 Ga. App. 511 , 164 S.E.2d 281 (1968); Apollo Homes, Inc. v. Knowles, 119 Ga. App. 239 , 166 S.E.2d 644 (1969); Gardner v. Tarpley, 120 Ga. App. 192 , 169 S.E.2d 690 (1969); Cochran v. Cheney, 121 Ga. App. 449 , 174 S.E.2d 234 (1970); Zappa v. Ewing, 122 Ga. App. 664 , 178 S.E.2d 338 (1970); Security Dev. & Inv. Co. v. Ben O'Callaghan Co., 125 Ga. App. 526 , 188 S.E.2d 238 (1972); Creative Serv., Inc. v. Spears Constr. Co., 130 Ga. App. 145 , 202 S.E.2d 581 (1973); Ronfra Dev. Corp. v. Pennington, 131 Ga. App. 195 , 205 S.E.2d 448 (1974); Redman Dev. Corp. v. Pollard, 131 Ga. App. 708 , 206 S.E.2d 605 (1974); Walker v. Joanna M. Knox & Assocs., 132 Ga. App. 12 , 207 S.E.2d 570 (1974); Bank Bldg. & Equip. Corp. v. Georgia State Bank, 132 Ga. App. 762 , 209 S.E.2d 82 (1974); Hampton v. Taylor, 233 Ga. 63 , 209 S.E.2d 634 (1974); Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 , 224 S.E.2d 65 (1976); McRae v. Britton, 144 Ga. App. 340 , 240 S.E.2d 904 (1977); McDonald v. Welding Specialty, Inc., 144 Ga. App. 303 , 241 S.E.2d 18 (1977); Sharp-Boylston Co. v. Lundeen, 145 Ga. App. 672 , 244 S.E.2d 622 (1978); Gayle v. Greco, 150 Ga. App. 651 , 258 S.E.2d 301 (1979); Booth v. Watson, 153 Ga. App. 672 , 266 S.E.2d 326 (1980); Gage v. Tiffin Motor Homes, Inc., 153 Ga. App. 704 , 266 S.E.2d 345 (1980); Rothstein v. Mirvis & Fox, Inc., 155 Ga. App. 79 , 270 S.E.2d 301 (1980); Krofft Dev. Corp. v. Quo Modo, Inc., 158 Ga. App. 403 , 280 S.E.2d 368 (1981); Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981); Brookhaven Landscape & Grading Co. v. J.F. Barton Contracting Co., 676 F.2d 516 (11th Cir. 1982); Maher v. Associated Video, Inc., 167 Ga. App. 763 , 307 S.E.2d 545 (1983); Boddy Enters., Inc. v. City of Atlanta, 171 Ga. App. 551 , 320 S.E.2d 374 (1984); Dauer v. Flight Int'l, Inc., 174 Ga. App. 879 , 332 S.E.2d 28 (1985); Allen v. T.A. Communications, Inc., 181 Ga. App. 726 , 353 S.E.2d 569 (1987); Staggs v. Wang, 185 Ga. App. 310 , 363 S.E.2d 808 (1987); Pharr v. Olin Corp., 715 F. Supp. 1569 (N.D. Ga. 1989); Georgia Tile Distrib., Inc. v. Zumpano Enter., Inc., 205 Ga. App. 487 , 422 S.E.2d 906 (1992); Akin v. PAFEC Ltd., 991 F.2d 1550 (11th Cir. 1993); Owens v. Landscape Perfections, Inc., 215 Ga. App. 642 , 451 S.E.2d 495 (1994); Atlanta Apt. Inv., Inc. v. N.Y. Life Ins. Co., 220 Ga. App. 595 , 469 S.E.2d 831 (1996); Watson v. Sierra Contracting Corp., 226 Ga. App. 21 , 485 S.E.2d 563 (1997); Yoh v. Daniel, 230 Ga. App. 640 , 497 S.E.2d 392 (1998); O'Neal v. Home Town Bank, 237 Ga. App. 325 , 514 S.E.2d 669 (1999); Scott v. Mamari Corp., 242 Ga. App. 455 , 530 S.E.2d 208 (2000); B&R Realty, Inc. v. Carroll, 245 Ga. App. 44 , 537 S.E.2d 183 (2000); Hobby v. Smith, 250 Ga. App. 669 , 550 S.E.2d 718 (2001); Iraola & CIA., S.A. v. Kimberly-Clark Corp., 325 F.3d 1274 (11th Cir. 2003); Imex Int'l v. Wires Eng'g, 261 Ga. App. 329 , 583 S.E.2d 117 (2003); McCondichie v. Groover, 261 Ga. App. 784 , 584 S.E.2d 57 (2003); Ekokotu v. Fed. Express Corp., 408 Fed. Appx. 331 (11th Cir. 2011)(Unpublished).

Implied Promises, Generally

Substance of this section is a fundamental principle in determining liability under implied contract. Delta Corp. v. Knight, 109 Ga. App. 3 , 135 S.E.2d 56 (1964).

Express agreement denounced by law cannot be made legal and binding as implied contract, by merely praying for recovery on quantum meruit of portion of amount expressly agreed upon. Sapp v. Davids, 176 Ga. 265 , 168 S.E. 62 (1933).

No recovery was permitted for a subcontractor in quantum meruit under O.C.G.A. § 9-2-7 as the express subcontract violated public policy and a subcontractor's lien under O.C.G.A. §§ 44-14-361.1 and 44-14-367 could not be filed. Although a subcontractor claimed to have been regularly connected to a Georgia-licensed electrician in order to comply with O.C.G.A. § 43-14-8(f) , evidence indicated that the Georgia-licensed electrician simply applied for necessary project permits and did not inspect the electrical work performed or that the work complied with the applicable codes. If an express contract is found to be void as a violation of public policy, an implied contract will not be found to have existed for the same reason. JR Construction/Electric, LLC v. Ordner Constr. Co., 294 Ga. App. 453 , 669 S.E.2d 224 (2008).

Absent express contract for payment of services, implied contract may arise by which person to whom services are rendered shall pay for them, when from all the facts and circumstances it can reasonably be inferred that it is in the contemplation of the parties that the services are to be paid for. Fortner v. McCorkle, 78 Ga. App. 76 , 50 S.E.2d 250 (1948).

Service performed with knowledge. - When one performs for another, with the other's knowledge, a useful service of a character that is usually charged for, and the latter expresses no dissent or avails oneself of the service, a promise to pay the reasonable value of the service is implied. Mitcham v. Singleton, 50 Ga. App. 457 , 178 S.E. 465 (1935).

Presumption of promise to pay. - When one renders beneficial services for another the law ordinarily presumes a request and promise to pay what such services are reasonably worth, unless they services were rendered under circumstances which repel this presumption. Brightwell v. Oglethorpe Tel. Co., 47 Ga. App. 521 , 171 S.E. 162 (1933).

When one renders services valuable to another which the latter accepts, a promise is implied to pay the reasonable value thereof, and an action of this type is one upon quantum meruit. First Nat'l Bank & Trust Co. v. McNatt, 141 Ga. App. 6 , 232 S.E.2d 356 (1977).

When duty to pay where person is without knowledge of services. - When one without knowledge neither authorizes, consents to, nor ratifies another's labor or permanent improvements to property, there is no duty imposed upon the one so benefited to make restitution. The reason is that in the absence of knowledge or authorization it would be unduly harsh to require the recipient's return of the value of goods and services when the goods or services cannot themselves be returned. Beavers v. Weatherly, 250 Ga. 546 , 299 S.E.2d 730 (1983); Ginsberg v. Termotto, 175 Ga. App. 265 , 333 S.E.2d 120 (1985); Grady Tractor Co. v. First Nat'l Bank, 213 Ga. App. 663 , 446 S.E.2d 228 (1994).

Presumption to pay is rebuttable. - Presumption of law that the person enjoying the benefit of services is bound to pay for the servicesis subject to rebuttal by proof either that the services were intended to be gratuitous or by particular circumstances from which the law would raise the counterpresumption that the services were not intended to be a charge against the party benefited thereby. Smith Dev., Inc. v. Flood, 198 Ga. App. 817 , 403 S.E.2d 249 (1991).

Quantum meruit lies ordinarily when one renders services valuable to another which the latter accepts, raising the implication of a promise to pay the reasonable value thereof. Griner v. Foskey, 158 Ga. App. 769 , 282 S.E.2d 150 (1981).

There can be no recovery on quantum meruit when action based on express contract. Stowers v. Hall, 159 Ga. App. 501 , 283 S.E.2d 714 (1981).

In a dispute between a concert booking agent and concert venue owners, the parties' contract covered services rendered by the agent in a given year regardless of when the concerts took place; therefore, the agent's work on the 2013 season until the agreement was terminated in August 2012 was covered by the agreement and could not support a claim for quantum meruit under O.C.G.A. § 9-2-7 . Lucas Entm't Grp., LLC v. Robert W. Woodruff Arts Ctr., Inc., F.3d (11th Cir. Dec. 1, 2017)(Unpublished).

Express promise subsequent to rendition of services is evidence of an implied promise. Neal & Son v. Stanley, 17 Ga. App. 502 , 87 S.E. 718 (1916).

No recovery can be had for services rendered voluntarily and with no expectation at the time of the rendition that they will be compensated. Brightwell v. Oglethorpe Tel. Co., 47 Ga. App. 621 , 171 S.E. 162 (1933).

Recovery on quantum meruit may not be obtained when services are rendered with no anticipation that compensation is to be received. Pembroke Steel Co. v. Technical Sales Assocs., 138 Ga. App. 744 , 227 S.E.2d 491 (1976).

Services rendered for love and affection. - When a person renders valuable services to another, which the latter accepts, a contract to pay therefor is implied in law, unless from the facts and circumstances, including the nature of the services and relationship between the parties, it appears that the services were rendered out of consideration of love and affection or otherwise rendered gratuitously. Cooper v. Cooper, 59 Ga. App. 832 , 2 S.E.2d 145 (1939).

In an action by decedent's estate to recover costs and other damages associated with building a house for the defendant in which the estate claimed that the decedent acted as general contractor and that the defendant wrongfully refused to pay for decedent's services, the defendant should have had the right to present evidence of a relationship with the decedent in order to support defendant's contention that the decedent provided the services gratuitously. Broughton v. Johnson, 247 Ga. App. 819 , 545 S.E.2d 370 (2001).

Law will not imply promise to pay for services contrary to intention of parties. Brightwell v. Oglethorpe Tel. Co., 47 Ga. App. 621 , 171 S.E. 162 (1933).

Criteria for determining if services were meant to be paid for. - In determining that in the contemplation of the parties personal services are to be paid for, the degree of relationship between the parties, the nature of the services, statements made by the person to whom the services are rendered of appreciation of the services and an intention to pay therefor (although not necessarily communicated to the person rendering the services), the fact that the person to whom the services are rendered is financially able to pay therefor, and other facts and circumstances concerning the performance of the services, may be considered as authorizing the inference that it is in the contemplation of the parties that the services are to be paid for. Humphries v. Miller, 66 Ga. App. 871 , 19 S.E.2d 321 (1942).

In determining that in the contemplation of the parties, services are to be paid for, the degree of relationship between the parties, the nature of the services, including the fact that their performance is very disagreeable and obnoxious to the person performing them, that they are such as to indicate the relation of master and servant or employer and employee between the parties, and such that the person performing them would not naturally do so without compensation and would not perform them solely for love and affection, and statements made by the person to whom the services are rendered of appreciation of the services and an intention to pay therefor, although not necessarily communicated to the person rendering the services, and the fact that the person to whom the services are rendered is financially able to pay therefor, and other facts and circumstances concerning the performance of the services, may be considered as authorizing the inference that it is in the contemplation of the parties that the services are to be paid for. Fortner v. McCorkle, 78 Ga. App. 76 , 50 S.E.2d 250 (1948); McRae v. Britton, 144 Ga. App. 340 , 240 S.E.2d 904 (1977).

Absent express agreement, key to determination of whether one rendering services valuable to another is to be compensated therefor is whether or not the services were gratuitously rendered, either by virtue of the presumption arising from the family relationship or as a matter of fact. Guyton v. Young, 84 Ga. App. 155 , 65 S.E.2d 858 (1951).

Word "value" means value to the owner rather than the cost of producing the work to the workmen. Pembroke Steel Co. v. Technical Sales Assocs., 138 Ga. App. 744 , 227 S.E.2d 491 (1976).

When quantum meruit is an available remedy, the plaintiff seeks to recover the value of the work and materials furnished, but value must be defined as value to the owner, not the cost to the contractor of producing the result. Stowers v. Hall, 159 Ga. App. 501 , 283 S.E.2d 714 (1981).

"Reasonable value" defined. - "Reasonable value" which plaintiff is entitled to recover is not the value of plaintiff's labor but the value of the benefit resulting from such labor. City of Gainesville v. Edwards, 112 Ga. App. 672 , 145 S.E.2d 715 (1965).

Value of services rendered in essence is exclusively matter for jury determination. Pembroke Steel Co. v. Technical Sales Assocs., 138 Ga. App. 744 , 227 S.E.2d 491 (1976); Bailey v. Fox, 144 Ga. App. 195 , 240 S.E.2d 737 (1977).

Jury determines value. - In action upon quantum meruit for value of professional services, question of what is reasonable is peculiarly within the province of the jury. Marshall v. Bahnsen, 1 Ga. App. 485 , 57 S.E. 1006 (1907); Griner v. Foskey, 158 Ga. App. 769 , 282 S.E.2d 150 (1981).

Plaintiff must carry burden of proof of reasonable value of services rendered to and accepted by defendant to recover on a quantum meruit basis. Development Corp. v. Berndt, 131 Ga. App. 277 , 205 S.E.2d 868 (1974).

Insufficient evidence of value of services. - Trial court's post trial ruling which held that it applied an incorrect measure of damages in determining the amount of quantum meruit damages in a claim brought by a home builder and that there was insufficient evidence to determine the value of the improvements to buyers of a home was internally inconsistent, and a remand was necessary; proof of the reasonable value of services rendered to and accepted by a defendant was an element essential to recovery on a quantum meruit basis, and when there was no benefit to the recipient there was no recovery, so if the evidence was insufficient, the trial court should have ruled in favor of the buyers on the claim and not have allowed the claim to be relitigated. Diegert v. Cedarbrook Homes, Inc., 267 Ga. App. 264 , 599 S.E.2d 211 (2004).

Performance of services in addition to those contracted for. - When one contracts to render services to another and performs additional services which are not contemplated in the original agreement and which are accepted by the latter, a promise is implied to pay the reasonable value of the additional services and a recovery in quantum meruit is authorized. Smith v. Sharpe, 113 Ga. App. 838 , 149 S.E.2d 830 (1966).

Even if there is an express contract, if services not contemplated by original agreement become necessary to achieve contractual objective and are rendered and accepted, the law implies and enforces performance of promise to pay for such extra services. Puritan Mills, Inc. v. Pickering Constr. Co., 152 Ga. App. 309 , 262 S.E.2d 586 (1979); Fruin-Colnon Corp. v. Air Door, Inc., 157 Ga. App. 804 , 278 S.E.2d 708 (1981).

When certain work was necessary for proper performance of original contract but was not provided for in original plans and specifications, and defendant as well as general contractor not only authorized the additional work directly by named officers and agents, but knowingly received the benefits thereof, an implied promise to pay the reasonable value of this work is raised by operation of law. Conway v. Housing Auth., 102 Ga. App. 333 , 116 S.E.2d 331 (1960).

When owner of property procures contractor engaged in improving the property to perform work in addition to that already agreed upon, the law will imply a promise on the part of the owner to pay the reasonable cost of such additional work. Kapplin v. Seiden, 109 Ga. App. 586 , 137 S.E.2d 55 (1964).

Where plaintiff was not negligent in originally performing under construction contract, subsequent corrective work would not fall within original contract and plaintiff would be entitled to compensation for reasonable value of the work. City of Macon v. Blythe Bros., 125 Ga. App. 469 , 188 S.E.2d 233 (1972).

Trial court did not err by charging the jury on quantum meruit because the allegations in the contractor's complaint were sufficient to raise a claim of quantum meruit where the contractor alleged that the contractor entered into a contract to supervise the construction of improvements to the homeowners' residence but that the homeowners ordered several additional improvements and further extensive renovations to be made to the residence; that the homeowners were fully aware of any and all changes to the estimates previously provided and that the homeowners approved the changes and agreed to any and all ensuing changes to the originally agreed-upon price; and that the contractor remained uncompensated for the reasonable value of the contractor's work. One Bluff Drive, LLC v. K. A. P., Inc., 330 Ga. App. 45 , 766 S.E.2d 508 (2014).

Obligation of property owners to pay for municipal improvements. - Although special benefits may flow to property owners from municipal improvements, no special obligation arises on their part to pay therefor, except when the owners sue the city for consequential damages caused by construction of the improvement, in which case the city may set-off the enhanced value of the property against such claim. City of Hogansville v. Daniel, 52 Ga. App. 12 , 182 S.E. 78 (1935).

Since there is no legal liability resting on abutting property owner to pay for public improvements or paving of street, the law will not raise an implied obligation or quasi-contract to pay the municipality for the increased value of the property, even though the municipality when making the improvements mistakenly believed it had authority to levy assessments against the property owner. City of Hogansville v. Daniel, 52 Ga. App. 12 , 182 S.E. 78 (1935).

Consequential benefits arising because of public improvements will not give rise to cause of action per se in favor of the municipality or county making the improvements against an abutting property owner. City of Hogansville v. Daniel, 52 Ga. App. 12 , 182 S.E. 78 (1935).

Promise insufficient to act as basis of action. - Legal theory of quantum meruit was inapplicable when no promise was made by the city to reconvey the property once the debtor had sufficient funds to pay cash in lieu of dedicating the recreation property, but rather at most, the city director of development promised that the director would recommend to the city council that it reconvey the property when the debtor offered the money. SMS Inv. Assocs. v. Peachtree City, 180 Bankr. 694 (Bankr. N.D. Ga. 1995).

Jury trial proper when plaintiff expected compensation. - When, although plaintiff claimed plaintiff expected that the compensation was to be in the form of an ownership interest in the business, it is abundantly clear from the plaintiff's affidavits and deposition that plaintiff expected compensation for the service the plaintiff performed and there is no evidence that plaintiff did not expect anything for the services, the issue of the plaintiff's entitlement to compensation under the theory of quantum meruit was properly retained for jury resolution by denying the defendant's motion for summary judgment. Ghee v. Kimsey, 179 Ga. App. 446 , 346 S.E.2d 888 (1986).

Broker's commission. - O.C.G.A. §§ 9-2-7 and 10-6-31 permit an action by a real estate broker who has located desired property and arranged for purchase thereof. Williamson v. Martin-Ozburn Realty Co., 19 Ga. App. 425 , 91 S.E. 510 (1917); Washington v. Jordan, 28 Ga. App. 18 , 109 S.E. 923 (1921).

When property placed in the hands of a broker for sale is subsequently sold by the owner, the broker is entitled to a commission if the broker was the procuring cause of the sale, even if the sale was actually consummated by the owner. Johnson v. Lipscomb-Weyman-Chapman Co., 46 Ga. App. 798 , 169 S.E. 266 (1933); Erwin v. Wender, 78 Ga. App. 94 , 50 S.E.2d 244 (1948).

When broker with whom property has been listed procures a prospective purchaser, and owner, with knowledge of this fact, intervenes or sells the property to customer or prospective purchaser procured by broker, inference is authorized that broker has earned a commission and can recover it from the owner. Mendenhall v. Adair Realty & Loan Co., 67 Ga. App. 154 , 19 S.E.2d 740 (1942).

Petition alleging character and extent of services performed by plaintiff brokers, reasonable or ordinary charges for like services in same community, acceptance by defendant, and fact that such services were procuring cause of sale and culminated in defendant's purchase, though for a slightly larger sum than that which the defendant had authorized plaintiff to give for it, stated a cause of action for reasonable value of such services. Hendrix v. Crosby, 76 Ga. App. 191 , 45 S.E.2d 448 (1947).

In order for a broker to earn a commission on account of the sale of property, the broker must either have sold it or been the procuring cause of the sale. Erwin v. Wender, 78 Ga. App. 94 , 50 S.E.2d 244 (1948); Martin v. Hendrix, Waddell, Martin & Co., 140 Ga. App. 557 , 231 S.E.2d 526 (1976).

Action predicated upon an implied promise to pay the reasonable value of services would arise only if plaintiff-broker had rendered valuable services to defendant-corporation which the latter accepts. Williams v. Coca-Cola Co., 158 Ga. App. 139 , 279 S.E.2d 261 (1981).

O.C.G.A. § 9-2-7 did not require, in the context of a broker suing for services performed, the existence of an agency relationship. Coldwell Banker Com. Group, Inc. v. Nodvin, 598 F. Supp. 853 (N.D. Ga. 1984), aff'd, 774 F.2d 1177 (11th Cir. 1985).

Although in a suit for a broker's commission a realtor must show that the realtor either effected the sale of property or was the procuring cause of the sale, a realtor may recover in quantum meruit without showing the value of the services received by and of the benefit to the sued party. Futch v. Guthrie, 176 Ga. App. 672 , 337 S.E.2d 384 (1985).

Mortgage broker who arranged for loans to a purchaser of property could not recover from the purchaser under a quantum meruit theory because a mortgage broker has no expectation of being compensated by the borrower. There was no implied promise on the part of the purchaser to pay a fee for the services of a mortgage broker since the standard practice is for a mortgage broker to look to the lender for payment. Vaswani v. Southern Mtg. & Fin. Servs. Corp., 196 Ga. App. 223 , 395 S.E.2d 647 (1990).

Broker's quantum meruit claim for damages based on an amount equal to the commission calculated according to the standard agreement it sent to defendant presented prima facie proof of the value of its services, even though the jury rejected its contract claim. Ctr. Pointe Invs. v. Frank M. Darby Co., 249 Ga. App. 782 , 549 S.E.2d 435 (2001).

Under Georgia law, procuring cause is a necessary element of a quantum meruit claim brought by a real estate broker; to the extent that Sharp-Boylston Co. v. Lundeen, 145 Ga. App. 672 (1978) and its progeny hold otherwise, they are overruled. Amend v. 485 Props., 280 Ga. 327 , 627 S.E.2d 565 (2006).

Award of quantum meruit recovery in favor of a broker in the broker's suit against a buyer was affirmed on appeal after: (1) the broker performed as an agent and rendered valuable services to the buyer in the form of locating certain goods and components and providing contacts; (2) the services were performed at the request of the buyer; (3) it would have been unjust for the buyer to accept the services without compensating the broker; (4) the broker had an expectation of compensation at the time the broker rendered the services; and (5) no contract of employment existed as the broker and the buyer did not have a meeting of the minds as to the essential terms of employment. Litsky v. G.I. Apparel, Inc., F.3d (11th Cir. Oct. 12, 2005)(Unpublished).

Action on quantum meruit. - Suits on quantum meruit must proceed, if at all, under this section; suit on quantum meruit is therefore suit on an implied promise to pay for the value of services rendered. Sapp v. Davids, 176 Ga. 265 , 168 S.E. 62 (1933).

Action brought to recover for reasonable value of services rendered another, which the latter accepts, is an action upon quantum meruit. Johnson v. Lipscomb-Weyman-Chapman Co., 46 Ga. App. 798 , 169 S.E. 266 (1933).

When either there is no specific contract or the contract agreed to is repudiated by both parties, an action sounding in quantum meruit will lie for whatever work was done and accepted. Stowers v. Hall, 159 Ga. App. 501 , 283 S.E.2d 714 (1981).

Holding corporation was liable under theory of quantum meruit for its share of financial burden under an agreement entered into by its affiliate to pay a commission for arranging financing for a development project. Northwest Preferred, Ltd. v. Williams, 184 Ga. App. 145 , 360 S.E.2d 910 (1987).

In a contractor's quantum meruit action, a former high school baseball coach was erroneously denied a directed verdict, as the evidence showed that although the contractor rendered a valuable service to a school by building an indoor baseball hitting facility, when the school board, and not the coach, accepted those services to create an implied promise of payment, quantum meruit payment for construction of the facility could not lie against the coach; moreover, because there was no implied agreement requiring the coach to pay for the hitting facility, the contractor's argument that the coach was liable for having received a personal benefit from the construction of the hitting facility went to the question of unjust enrichment, and not quantum meruit. Brown v. Penland Constr. Co., 281 Ga. 625 , 641 S.E.2d 522 (2007).

Implied obligation under this section may be pleaded in setoff to action brought by person who was benefited. Schofield's Sons Co. v. Duggan & Jones, 33 Ga. App. 238 , 125 S.E. 789 (1924).

No expectation of payment from successor corporation. - When advertising services were performed by plaintiff for one corporation, but not for its successor corporation, plaintiff's quantum meruit claim could not survive against the successors since the plaintiff could not possibly have held an expectation of compensation from them. The trial court did not err in granting summary judgment for the successor corporation on the quantum meruit claim. Artrac Corp. v. Austin Kelley Adv., Inc., 197 Ga. App. 772 , 399 S.E.2d 529 (1990), cert. denied, 198 Ga. App. 897 , 399 S.E.2d 529 (1991).

Implied Promises Between Relatives

How presumption of gratuitous services between relatives rebutted. - Recovery for services between relatives might be had if express contract is shown or if surrounding circumstances indicate that it was the intention of both parties that compensation should be made and negative idea that services were performed merely because of natural sense of duty, love, and affection arising out of a relationship. Westbrook v. Saylors, 56 Ga. App. 587 , 193 S.E. 371 (1937).

When one renders personal services to a very near relative who is sick and helpless, such as nursing and personal care, a presumption that the services are to be paid for does not necessarily arise in the absence of an express contract between the parties for the payment of such services, there may arise an implied contract by which the person to whom the services are rendered shall pay the other for the services, when from all the facts and circumstances it can reasonably be inferred that it is in the contemplation of the parties that the services are to be paid for. Humphries v. Miller, 66 Ga. App. 871 , 19 S.E.2d 321 (1942).

Among members of family, services of one in caring for another are presumed to have been gratuitously rendered, but this presumption may be rebutted by proof of an express promise by recipient of services to pay or, at least where adults are concerned, by proof of an implied promise to pay, taking into consideration the nature of the services and the facts and circumstances under which the services were rendered. Guyton v. Young, 84 Ga. App. 155 , 65 S.E.2d 858 (1951); Henry v. Hemstreet, 86 Ga. App. 863 , 72 S.E.2d 801 (1952).

It is not necessary for near relative to prove an express contract in order to recover for services that ordinarily would be deemed gratuitous. Freeman v. Phillips, 135 Ga. App. 466 , 218 S.E.2d 144 (1975).

Intention of near relatives that services shall be compensated will govern. Phinazee v. Bunn, 123 Ga. 230 , 51 S.E. 300 (1905).

In order to recover for services rendered to a near relative, the surrounding circumstances must plainly indicate that it was the intention of both parties that compensation should be made. Freeman v. Phillips, 135 Ga. App. 466 , 218 S.E.2d 144 (1975).

Question for jury. - When facts do not plainly demand inference that services between relatives were gratuitous, the particular facts of each case should be submitted to the jury under proper instructions as to the law. Freeman v. Phillips, 135 Ga. App. 466 , 218 S.E.2d 144 (1975).

Mere fact that services performed by near relative were necessary to the person for whom the services were performed and that performance of the services saved the sick relative and enhanced the value of the relative's estate were insufficient, without more, to authorize finding that it was in the contemplation of the parties that the services were to be paid for. Humphries v. Miller, 66 Ga. App. 871 , 19 S.E.2d 321 (1942).

As between parents and adult child, when compensation is claimed by either against the other for services rendered, it must be determined from the particular circumstances, in absence of express contract, whether it can be reasonably inferred that pecuniary compensation was in view of parties when services were rendered. Cooper v. Van Horn, 61 Ga. App. 214 , 6 S.E.2d 408 (1939).

Services rendered on behalf of parent by child, even after majority, are not a sufficient consideration to support a contract, unless the parent made an express promise to pay for such services or the surrounding circumstances plainly indicated that it was the intention of both parties that compensation should be made. Meads v. Williams, 55 Ga. App. 224 , 189 S.E. 718 (1937).

When child renders services in the nature of nursing, waiting upon, and ministering to the wants and necessities of an infirm, diseased, and aged parent, there is a presumption that such services are rendered in filial duty and affection and not because of expected compensation in money or property, in the absence of any express agreement between the parties for compensation or any facts or circumstances indicating that it was intended and contemplated by both parent and child that payment should be made. Cooper v. Cooper, 59 Ga. App. 832 , 2 S.E.2d 145 (1939), for comment, see 2 Ga. B.J. 41 (1939).

In order to sustain recovery by child for services in the nature of care and attention to old and infirm parent, it must affirmatively appear either that they were rendered under express contract that the child was to be paid for them, or surrounding circumstances plainly indicate that it was the intention of both parties that compensation should be made, and negative idea that the services were performed merely because of natural sense of duty, love, and affection arising out of relation. Fortner v. McCorkle, 78 Ga. App. 76 , 50 S.E.2d 250 (1948).

In order to sustain a recovery by a child against a parent for services in the nature of care and attention such as are usually bestowed because of a natural sense of duty and affection arising out of the relationship, it must affirmatively appear that the services were performed under an express contract that the parent would pay for them, or the surrounding circumstances must plainly indicate that it was the intention of the parties that compensation should be paid. Freeman v. Collier, 204 Ga. 329 , 50 S.E.2d 61 (1948); Fuller v. Weekes, 105 Ga. App. 790 , 125 S.E.2d 662 , rev'd on other grounds, 218 Ga. 515 , 128 S.E.2d 715 (1962).

When services are rendered by an adult child in attending to the business of the parent in the conduct of a hotel owned by the latter due to the parent's infirmity, and when the services have a value materially in excess of the support received from the parent and thereby tend to enhance the parent's estate, the jury could find from the evidence that, considering all the circumstances, both the parent and the child contemplated that the child should receive compensation for the services rendered. Freeman v. Collier, 204 Ga. 329 , 50 S.E.2d 61 (1948).

Support of parent. - When child broke up child's home and lived with the child's parent upon express promise by the latter to will the child the parent's home place if the child would care for the parent during the parent's life, and the child fulfilled the child's agreement but the parent did not, action upon an implied promise will lie in the child's favor. Hudson v. Hudson, 87 Ga. 678 , 13 S.E. 583 , 27 Am. St. R. 270 (1891).

Claim for offset against amount due on note on grounds that maker had cared for and supported payee, the maker's parent, for 35 months, was invalid, in that it failed to allege any express contract by the parent to pay for such services or any facts tending to show that the parent came under any legal obligation to pay for such services. Greenwood v. Greenwood, 44 Ga. App. 847 , 163 S.E. 317 (1932).

In order for recovery by parent to be authorized against child for services and necessities, it must affirmatively appear by express contract that the child was to be paid for them or circumstances plainly indicate that it was intention of both the child and the parent that compensation should be made, and negative idea that services were performed and necessities furnished merely because of the natural sense of duty, love, and affection which arises out of relationship existing between the child and parent. Morris v. Bruce, 98 Ga. App. 821 , 107 S.E.2d 262 (1959).

Care and burial of sister. - When there is no express contract or agreement and no facts or circumstances which would authorize an inference that the parties contemplated that services would be paid for, no reimbursement would be allowed for expenses incurred for care, supervision, and burial of the sister because presumption of implied promise to pay usually does not arise between very near relatives. Lovin v. Poss, 240 Ga. 848 , 242 S.E.2d 609 (1978).

Services rendered to uncle. - In claim for services rendered, on a quantum meruit basis, when plaintiff and the plaintiff's family kept and cared for the intestate, plaintiff's uncle, for a period of approximately eight years with the understanding that they would be compensated for their services after the uncle's death in view of the age and physical infirmities of the intestate during the last four years of the uncle's life (claim for services prior thereto being barred by the statute of limitations), the evidence amply authorized the finding that the uncle's lodging, board, washing of the uncle's wearing apparel and bedclothing, and nursing and caring for the uncle were worth $50.00 a month without interest. Westbrook v. Saylors, 56 Ga. App. 587 , 193 S.E. 371 (1937).

It is for jury to say what circumstances are sufficient to support usual implication of promise to pay for the services, or to repel counterinference that their performance was prompted by affection and that they were rendered without expectation of payment therefor. Freeman v. Phillips, 135 Ga. App. 466 , 218 S.E.2d 144 (1975).

Advancement made to individual by brother of his dead wife, voluntarily and without a request from the husband, is inferably a gift, and as a matter of law no implied promise arose to repay the money advanced. But when the advancement is made at the request of the husband, either express or implied, an implied promise by the husband to repay is inferable. Lovett v. Allen, 34 Ga. App. 385 , 129 S.E. 897 (1925).

Services rendered to spouse. - There was no evidence to support an award of damages in quantum meruit against a husband in a wife's action alleging that the husband's father breached an oral agreement to deed a parcel of property to the wife and the husband because there was no present benefit to the husband since the husband did not own the property or any interest in the property; there was no evidence that there was ever any expectation by either party that the wife would be compensated by the husband for the wife's contributions to their businesses while they were a married couple. Wallin v. Wallin, 316 Ga. App. 455 , 729 S.E.2d 567 (2012).

Money Had and Received

For brief history of action for money had and received, see Jasper School Dist. v. Gormley, 184 Ga. 756 , 193 S.E. 248 (1937).

Origin of action in common-law courts. - Action in assumpsit for money had and received is an action at law because of its origin as a mode of action in the common-law courts. Sheehan v. City Council, 71 Ga. App. 233 , 30 S.E.2d 502 (1944).

Action for money had and received is founded upon equitable principle that no one ought unjustly to enrich oneself at the expense of another, and is maintainable in all cases where one has received money under such circumstances that in equity and good conscience one ought not to retain, and ex aequo et bono it belongs to another. King v. Forman, 71 Ga. App. 75 , 30 S.E.2d 214 (1944); Sheehan v. City Council, 71 Ga. App. 233 , 30 S.E.2d 502 (1944); Brackett v. Fulton Nat'l Bank, 80 Ga. App. 467 , 56 S.E.2d 486 (1949).

Gist of action for money had and received lies in retention by defendant of money of plaintiff which, in equity and good conscience, the defendant has no right to retain. Manry v. Williams Mfg. Co., 45 Ga. App. 833 , 166 S.E. 222 (1932).

Action of assumpsit for money had and received will not lie unless it is shown that the money or its equivalent was actually received by defendant or the defendant's agent. King v. Forman, 71 Ga. App. 75 , 30 S.E.2d 214 (1944).

Fact that mistake in making excess payments occurs through some negligence of the complaining party does not avoid the duty of the party receiving the money or goods to return them unless the negligence amounts to a breach of some legal duty. Department of Pub. Health v. Perry, 123 Ga. App. 816 , 182 S.E.2d 493 (1971).

State has right to recover money paid out through mistake under the time-honored and well recognized principle that one may not retain money or goods which have come into one's hands through mistake and which one is not, in good conscience, entitled to retain. Department of Pub. Health v. Perry, 123 Ga. App. 816 , 182 S.E.2d 493 (1971).

Since a purported written contract was void for vagueness, plaintiff was entitled to recover the money deposited under the invalid agreement, that never ripened into a valid contract, on the basis of money had and received or unjust enrichment. Cochran v. Ogletree, 244 Ga. App. 537 , 536 S.E.2d 194 (2000).

This section cannot operate as a partial assignment of contract in favor of a third person who has supplied part of the material contracted for. Meager v. Linder Lumber Co., 1 Ga. App. 426 , 57 S.E. 1004 (1907).

No benefit of bargain from illegal contracts. - Although an agreement which an investor concluded with a person who was employed by a company that offered to sell stock to its employees during an initial public offering, wherein the employee offered to purchase stock in the employee's own name for the investor, was illegal, and the investor was not entitled to profits the investor lost because the employee did not buy the stock, the investor was only entitled to a return of money the investor gave the employee to buy the stock. McCondichie v. Groover, 261 Ga. App. 784 , 584 S.E.2d 57 (2003).

Application

Right to equipment. - When there was proof that a city equipped a hotel's kitchen at a cost of $400,000, this evidence, and the absence of proof that the equipment was removed from the kitchen before a purchaser took possession of the premises, raised genuine issues of material fact as to the city's right to recover in quantum meruit for whatever equipment remained, and the trial court erred in granting the purchaser's motion for summary judgment. City of College Park v. Sheraton Savannah Corp., 235 Ga. App. 561 , 509 S.E.2d 371 (1998).

Limited liability companies. - When a limited liability company member owned the property where a construction project was started, signed a personal guaranty for the work done under the contract that all parties anticipated was to have been signed, and attended meetings at which progress on the project was discussed, the member's claim that the member did not know that the builder was working on the member's property, despite the member having promised to pay, did not create a fact issue; thus, summary judgment against the member on the builder's quantum meruit claim was proper. Marett v. Brice Bldg. Co., 268 Ga. App. 778 , 603 S.E.2d 40 (2004).

Marine salvage. - Plaintiff may bring in an personam claim for quantum meruit in Georgia's state courts based on events that could also support a claim in federal admiralty court for marine salvage; while a salvage bounty cannot be awarded, the jury may consider the peril involved and the value of the property saved in determining the value of the service the boat owner received. Phillips v. Sea Tow/Sea Spill, 276 Ga. 352 , 578 S.E.2d 846 (2003).

Real estate agents. - Real estate agent failed to establish the reasonable value of the agent's services in referring clients to the agent's former paramour, who was also a real estate agent, the agent could not recover referral fees under the theory of unjust enrichment once the parties romantic relationship ended. Folds v. Barber, 278 Ga. 37 , 597 S.E.2d 409 (2004).

Plaintiff debtor-in-possession properly stated a claim for unjust enrichment because the plaintiff alleged that a debtor transferred a benefit to defendant (or that defendant took a benefit from the debtor) without a contract, compensation, or consideration, and that defendant, under equitable principles, ought to return that benefit to the debtor. MC Asset Recovery, LLC v. Southern Co., F. Supp. 2d (N.D. Ga. Dec. 11, 2006).

Failed investments in sporting event parties. - Professional basketball player was not liable to inexperienced businessmen who invested and lost money by hosting sports event-related parties based on an oral agreement with two men claiming to act as the player's agents. The businessmen's claim for unjust enrichment under O.C.G.A. § 9-2-7 was unsuccessful because there was no evidence that money was transferred into the player's accounts, and a failed investment was not a cognizable basis for relief in quantum meruit. J'Carpc, LLC v. Wilkins, 545 F. Supp. 2d 1330 (N.D. Ga. 2008).

Attorney's fees. - Allegations that defendant hired plaintiff as attorney at law, that plaintiff performed certain enumerated services as such attorney, which services were accepted by defendant, that such services were of a stated reasonable value and defendant refused to pay therefor, and that, as a result of plaintiff's efforts and services which were accepted by defendant, it had become enriched in a stated sum, were sufficient to state a cause of action for quantum meruit and unjust enrichment. Sellers v. City of Summerville, 88 Ga. App. 109 , 76 S.E.2d 99 (1953), later appeal, 91 Ga. App. 105 , 85 S.E.2d 56 (1954), 94 Ga. App. 152 , 94 S.E.2d 69 (1956).

Recovery of attorney's fees on quantum meruit basis was permitted only when no fee had been agreed upon, or when the attorney cannot render the balance of the agreed service due to any of the contingencies provided in former Code 1933, § 9-611 (see now O.C.G.A. § 15-19-11 ). Dickey v. Mingledorff, 110 Ga. App. 454 , 138 S.E.2d 735 (1964).

When there is no special contract between the parties, the attorney may recover on quantum meruit for the reasonable value of the services rendered. Griner v. Foskey, 158 Ga. App. 769 , 282 S.E.2d 150 (1981).

In an action for attorney fees it does not follow, if there were more parties than one on a side, and the attorney was employed by only one, and the others had knowledge that the attorney was representing the whole case, and the services were for their benefit, and accepted by them, that to avoid liability it was their duty to have notified the attorney that they would not be liable. Griner v. Foskey, 158 Ga. App. 769 , 282 S.E.2d 150 (1981).

Even though an attorney was entitled to recover the reasonable value of the attorney's services under quantum meruit, it was error to grant the attorney summary judgment as to a sum certain because issues of material fact remained as to whether all of the services were of benefit and value to the client. Sosebee v. McCrimmon, 228 Ga. App. 705 , 492 S.E.2d 584 (1997).

Insufficient evidence of representation to pay more for medical services. - Insurance company and the corporation were entitled to summary judgment on the burn center's quantum meruit claim because the burn center failed to substantiate how or why the medical services the center provided to the corporation's employee were beneficial or valuable to the corporation or the insurance company and the center never specifically identified what it was alleging the insurance company and the corporation received when the center provided medical services to the corporation's employee. Further, there was nothing in the language of Mississippi's Workers' Compensation Medical Fee Schedule, Miss. Code Ann. § 71-3-15, to indicate that the rate of reimbursement for out-of-state services was contingent upon whether a foreign state's medical fee schedule would apply in that foreign state, and so, to the extent the insurance company benefited from the discharge of a statutory obligation under Mississippi law, the undisputed evidence showed that it already paid the reasonable value for the burn center's services; therefore, there was no evidence in the record demonstrating that the insurance company or the corporation ever made any representation that they would be willing to pay anything more than what was required of them by Georgia or Mississippi workers' compensation law. Joseph M. Still Burn Ctrs., Inc. v. AmFed Nat'l Ins. Co., 702 F. Supp. 2d 1371 (S.D. Ga. 2010).

Claim against state agency barred by sovereign immunity. - Computer contractor that had an unsigned copy of an agreement and an invoice for services rendered failed to show that the contractor had a signed agreement with a state agency for purposes of the state's waiver of immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX(c). The contractor's claims for unjust enrichment were also barred by sovereign immunity. Ga. Dep't of Cmty. Health v. Data Inquiry, LLC, 313 Ga. App. 683 , 722 S.E.2d 403 (2012).

Ultra vires contract not enforceable under quantum meruit theory of recovery against city. - Appellate court erred by holding that an environmental engineering company could recover against a city on the company's quantum meruit claim because quantum meruit was not an available remedy against the city since the claim was based on a municipal contract that was ultra vires as the contract was never approved by city council. City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19 , 743 S.E.2d 381 (2013).

Clear that services were requested or knowingly accepted. - Trial court erred by granting summary judgment to the defendants on the part owner's claim for quantum meruit and unjust enrichment because it was clear that the part owner provided services that benefitted the defendants and were either requested or knowingly accepted. Bedsole v. Action Outdoor Adver. JV, LLC, 325 Ga. App. 194 , 750 S.E.2d 445 (2013).

Dismissal of the claim for quantum meruit was reversed because even if the stylists's wig designs lacked legal novelty, quantum meruit provided an avenue of recovery for the provision of the services rendered in designing and producing the wigs regardless of the novelty of the designs themselves. Davidson v. Maraj, F.3d (11th Cir. Apr. 24, 2015)(Unpublished).

RESEARCH REFERENCES

Am. Jur. 2d. - 17A Am. Jur. 2d, Contracts, § 368 et seq. 66 Am. Jur. 2d, Restitution and Implied Contracts, §§ 2 et seq., 37 et seq., 48.

21B Am. Jur. Pleading and Practice Forms, Restitution and Implied Contracts, § 2.

C.J.S. - 17 C.J.S., Contracts, §§ 6, 688.

ALR. - Action on implied contract arising out of fraud as within statutes of limitation applicable to fraud, 3 A.L.R. 1603 .

Right of real estate broker to commissions where he was unable to procure an offer of the owner's price from one whom he interested, and who subsequently, without his intervention, purchased at that price, 9 A.L.R. 1194 .

Liability of husband for services rendered by wife in carrying on his business, 23 A.L.R. 18 .

Presumption as to gratuitous character of services of relative in caring for children of one not of same household, 24 A.L.R. 962 .

Implied contract to reimburse one for expense of trip taken at request of relative, 24 A.L.R. 973 .

Liability for or on account of services rendered under erroneous impression as to parentage induced by fraud or mistake, 33 A.L.R. 681 .

Right to compensation for board furnished to relatives of wife, 36 A.L.R. 677 .

Recovery by one who has breached contract for services providing for share in proceeds or profits as compensation, 40 A.L.R. 34 ; 57 A.L.R. 1037 .

Liability of municipal corporation upon implied contract for use of property which it received under an invalid contract, 42 A.L.R. 632 .

Implied contract or employment of real estate broker to procure customer, 43 A.L.R. 842 ; 49 A.L.R. 933 .

Recovery on quantum meruit by one who breaches contract to serve or support another for life, 47 A.L.R. 1162 .

Judgment in action for services of physician or surgeon as bar to action against him for malpractice, 49 A.L.R. 551 .

Circumstances other than relationship of parties which repel interference of an agreement to pay for work performed at one's request, or with his acquiescence, 54 A.L.R. 548 .

Right of purchaser of mortgaged chattels to allowance as against mortgagee on account of value added by former's services or expenditures, 55 A.L.R. 652 .

Vendee's right to recover amount paid under executory contract for sale of land, 59 A.L.R. 189 ; 102 A.L.R. 852 ; 134 A.L.R. 1064 .

Right of one who pays taxes for which another is bound, to subrogation to the right of the taxing power, 61 A.L.R. 587 ; 106 A.L.R. 1212 .

Recovery back of public money paid by mistake, 63 A.L.R. 1346 .

Right of subrogation of owner of undivided interest in real property who pays sole debt of the owner of another undivided interest therein, 64 A.L.R. 1299 .

Absence from, or inability to attend, school or college as affecting liability for, or right to recover back payments on account of, tuition or board, 69 A.L.R. 714 .

Payments made under unenforceable contract as applicable in reduction of amount recoverable on quantum meriut, 76 A.L.R. 1412 .

Right of attorney to recover upon quantum meruit or implied contract for services rendered under champterous contract, 85 A.L.R. 1365 .

Right of one who by mistake pays taxes to recover against person benefited by payment, 91 A.L.R. 389 .

Nontort liability of third person who receives money or property in supposed performance of contract, to party to contract who was entitled thereto, 106 A.L.R. 322 .

Decedent's agreement to devise, bequeath, or leave property as compensation for services, 106 A.L.R. 742 .

What amounts to acceptance by owner of work done under contract for construction or repair of building which will support a recovery on quantum meruit, 107 A.L.R. 1411 .

Liability of municipality or other governmental body on implied or quasi contracts for value of property or work, 110 A.L.R. 153 ; 154 A.L.R. 356 .

Right of true owner to recover proceeds of sale or lease of real property made by another in the belief that he was the owner of the property, 133 A.L.R. 1443 .

Principal's right to recover commissions paid by him or by third person to unfaithful agent or broker, 134 A.L.R. 1346 .

Past services by relative or member of family as consideration for note or other executory obligation, 140 A.L.R. 491 .

What amounts to waiver of termination of real estate broker's contract, 140 A.L.R. 1019 .

Necessity and sufficiency of pleading defense of family relationship in action on implied contract for services rendered, 144 A.L.R. 864 .

Real estate broker's right to compensation as affected by death of person employing him, 146 A.L.R. 828 .

Seller's, bailor's, lessor's, or lender's knowledge of the other party's intention to put the property or money to an illegal use as defense to action for purchase price, rent, or loan, 166 A.L.R. 1353 .

Recovery for services rendered by member of household or family other than spouse without express agreement for compensation, 7 A.L.R.2d 8; 92 A.L.R.3d 726; 94 A.L.R.3d 552.

Remedies during promisor's lifetime on contract to convey or will property at death in consideration of support or services, 7 A.L.R.2d 1166.

Performance of work previously contracted for as consideration for promise to pay greater or additional amount, 12 A.L.R.2d 78.

Measure of damages for fraudulently procuring services at lower rate or gratuitously, 24 A.L.R.2d 742.

Right of infant who repudiates contract for services to recover thereon or in quantum meruit, 35 A.L.R.2d 1302.

Compensation for improvements made or placed on premises of another by mistake, 57 A.L.R.2d 263.

Admissibility of evidence of value or extent of decedent's estate in action against estate for reasonable value of services furnished decedent, 65 A.L.R.2d 945.

What constitutes acceptance or ratification of, or acquiescence in, services rendered by attorney so as to raise implied promise to pay reasonable value thereof, 78 A.L.R.2d 318.

Recovery on quantum meruit where only express contract is pleaded, under Federal Rules of Civil Procedure 8 and 54 and similar state statutes or rules, 84 A.L.R.2d 1077.

Attorney's recovery in quantum meruit for legal services rendered under a contract which is illegal or void as against public policy, 100 A.L.R.2d 1378.

Person performing services as competent to testify as to their value, 5 A.L.R.3d 947.

Implied obligation not to use trade secrets or similar confidential information disclosed during unsuccessful negotiations for sale, license, or the like, 9 A.L.R.3d 665.

Price fixed in contract violating statute of frauds as evidence of value in action on quantum meruit, 21 A.L.R.3d 9.

Failure of artisan or construction contractor to comply with statute or regulation requiring a work permit or submission of plans as affecting his right to recover compensation from contractee, 26 A.L.R.3d 1395.

Liability of one requesting medical practitioner or hospital to furnish services to third party for cost of services, absent express undertaking to pay, 34 A.L.R.3d 176.

Judgment in action on express contract for labor or services as precluding, as a matter of res judicata, subsequent action on implied contract (quantum meruit) or vice versa, 35 A.L.R.3d 874.

Invasion of privacy by radio or television, 56 A.L.R.3d 386.

Amount of attorney's compensation in absence of contract or statute fixing amount, 57 A.L.R.3d 475; 59 A.L.R.3d 152, 17 A.L.R.5th 366.

Building and construction contracts: right of subcontractor who has dealt only with primary contractor to recover against property owner in quasi contract, 62 A.L.R.3d 288.

Enforceability of contract to make will in return for services, by one who continues performance after death of person originally undertaking to serve, 84 A.L.R.3d 930.

Enforceability of voluntary promise of additional corporation because of unforeseen difficulties in performance of existing contract, 85 A.L.R.3d 259.

Limitation to quantum meruit recovery, where attorney employed under contingent fee contract is discharged without cause, 92 A.L.R.3d 690.

Establishment of "family" relationship to raise presumption that services were rendered gratuitously, as between persons living in same household but not related by blood or affinity, 92 A.L.R.3d 726.

Recovery for services rendered by persons living in apparent relation of husband and wife without express agreement for compensation, 94 A.L.R.3d 552.

Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.

Absence from or inability to attend school or college as affecting liability for or right to recover payments for tuition or board, 20 A.L.R.4th 303.

Excessiveness or adequacy of attorneys' fees in matters involving real estate - modern cases, 10 A.L.R.5th 448.

Excessiveness or adequacy of attorney's fees in domestic relations, 17 A.L.R.5th 366.

Limitation to quantum meruit recovery, where attorney employed under contingent-fee contract is discharged without cause, 56 A.L.R.5th 1.

9-2-8. Private rights of action not created unless expressly stated.

  1. No private right of action shall arise from any Act enacted after July 1, 2010, unless such right is expressly provided therein.
  2. Nothing in subsection (a) of this Code section shall be construed to prevent the breach of any duty imposed by law from being used as the basis for a cause of action under any theory of recovery otherwise recognized by law, including, but not limited to, theories of recovery under the law of torts or contract or for breach of legal or private duties as set forth in Code Sections 51-1-6 and 51-1-8 or in Title 13. (Code 1981, § 9-2-8 , enacted by Ga. L. 2010, p. 745, § 2/SB 138.)

Effective date. - This Code section became effective July 1, 2010.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2010, "after July 1, 2010," was substituted for "after the effective date of this Code section" in subsection (a).

Editor's notes. - Ga. L. 2010, p. 745, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transparency in Lawsuits Protection Act.'"

Law reviews. - For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010).

JUDICIAL DECISIONS

No private right of action for transmitting nude photos. - Trial court erred in awarding civil damages to a girlfriend under O.C.G.A. § 16-11-90 , which criminalized the transmission of photography or video depicting nudity or sexually explicit conduct of an adult without his or her consent, because it was a criminal statute that did not provide for a private right of action; further, creation of such a right from the statute would violate the separation of powers clause, Ga. Const. 1983, Art. I, Sec. II, Para. III, and also O.C.G.A. § 9-2-8(a) . Somerville v. White, 337 Ga. App. 414 , 787 S.E.2d 350 (2016).

ARTICLE 2 PARTIES

Cross references. - Persons who may bring equitable actions, § 23-4-20 .

9-2-20. Parties to actions on contracts; action by beneficiary.

  1. As a general rule, an action on a contract, whether the contract is expressed, implied, by parol, under seal, or of record, shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent.
  2. The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.

    (Orig. Code 1863, § 3181; Code 1868, § 3192; Code 1873, § 3257; Code 1882, § 3257; Civil Code 1895, § 4939; Civil Code 1910, § 5516; Code 1933, § 3-108; Ga. L. 1949, p. 455, § 1.)

Law reviews. - For article discussing third party beneficiary contracts, see 4 Ga. B.J. 19 (1941). For article, "Multiple Party Accounts: Georgia Law Compared with the Uniform Probate Code," see 8 Ga. L. Rev. 739 (1974). For annual survey on construction law, see 71 Mercer L. Rev. 57 (2019). For note discussing transfer fees in home loan assumptions in reference to the Georgia usury laws, see 9 Ga. L. Rev. 454 (1975). For comment on Veruki v. Burke, 202 Ga. 844 , 44 S.E.2d 906 (1947), see 10 Ga. B.J. 369 (1948). For comment on Harris v. Joseph B. English Co., 83 Ga. App. 281 , 63 S.E.2d 346 (1951), see 13 Ga. B.J. 462 (1951).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Martin v. Lamb & Co., 77 Ga. 252 , 3 S.E. 10 (1886); Hobbs & Tucker v. Chemical Nat'l Bank, 97 Ga. 524 , 25 S.E. 348 (1895); Carter v. Southern Ry., 111 Ga. 38 , 36 S.E. 308 , 50 L.R.A. 354 (1900); Shropshire v. Rainey, 150 Ga. 566 , 104 S.E. 414 (1902); Hawkins v. Central of Ga. Ry., 119 Ga. 159 , 46 S.E. 82 (1903); Lyons v. Kelley, 6 Ga. App. 367 , 65 S.E. 44 (1909); Kennedy v. Gelders, 7 Ga. App. 241 , 66 S.E. 620 (1909); Taylor v. Felder, 7 Ga. App. 219 , 66 S.E. 628 (1909); North British & Mercantile Ins. Co. v. Speer, 7 Ga. App. 330 , 66 S.E. 815 (1910); Dickson v. Matthews, 10 Ga. App. 542 , 73 S.E. 705 (1912); Sheppard v. Bridges, 137 Ga. 615 , 74 S.E. 245 (1912); May v. McCarty, 11 Ga. App. 454 , 75 S.E. 672 (1912); Crawford v. Wilson, 139 Ga. 654 , 78 S.E. 30 , 44 L.R.A. (n.s.) 773 (1913); Paxson v. Planters' Whse. & Loan Co., 20 Ga. App. 267 , 92 S.E. 1023 (1917); Henderson Lumber Co. v. Waycross & W. Ry., 148 Ga. 69 , 95 S.E. 263 (1918); Jordan v. Colquitt Nat'l Bank, 22 Ga. App. 23 , 95 S.E. 319 (1918); American Sur. Co. v. De Wald, 30 Ga. App. 606 , 118 S.E. 703 (1923); Cook v. McArthur, 31 Ga. App. 248 , 120 S.E. 551 (1923); Hogansville Banking Co. v. City of Hogansville, 156 Ga. 855 , 120 S.E. 604 (1923); Board of Drainage Comm'rs v. Morris Constr. Co., 32 Ga. App. 300 , 122 S.E. 723 (1924); Young v. Certainteed Prods. Corp., 35 Ga. App. 419 , 133 S.E. 279 (1926); Staten v. General Exch. Ins. Corp., 38 Ga. App. 415 , 144 S.E. 53 (1928); Manget v. National City Bank, 168 Ga. 876 , 149 S.E. 213 (1929); Trust Co. v. Mobley, 40 Ga. App. 468 , 150 S.E. 169 (1929); Bond v. Maxwell, 40 Ga. App. 679 , 150 S.E. 860 (1929); Hillhouse v. McWhorter, 41 Ga. App. 384 , 153 S.E. 85 (1930); Wright Graham & Co. v. Hammond, 41 Ga. App. 738 , 154 S.E. 649 (1930); Beck & Gregg Hdwe. Co. v. Southern Sur. Co., 44 Ga. App. 518 , 162 S.E. 405 (1931); Ragan v. National City Bank, 177 Ga. 686 , 170 S.E. 889 (1933); Darden v. Federal Reserve Bank, 48 Ga. App. 685 , 173 S.E. 227 (1934); Bowman v. Chapman, 179 Ga. 49 , 175 S.E. 241 (1934); Wometco Theatres, Inc. v. United Artists Corp., 53 Ga. App. 509 , 186 S.E. 572 (1935); McRae v. Sears, 183 Ga. 133 , 187 S.E. 664 (1936); Gulf Oil Corp. v. Suburban Realty Co., 183 Ga. 847 , 190 S.E. 179 (1937); Eddleman v. Lewis, 58 Ga. App. 177 , 198 S.E. 108 (1938); Waxelbaum v. Carroll, 58 Ga. App. 771 , 199 S.E. 858 (1938); Peretzman v. Borochoff, 58 Ga. App. 838 , 200 S.E. 331 (1938); Robinson v. Herbst Bros., 63 Ga. App. 738 , 12 S.E.2d 77 (1940); Mason v. Royal Indem. Co., 1 F.R.D. 176 (N.D. Ga. 1940); Hadaway v. Hadaway, 192 Ga. 265 , 14 S.E.2d 874 (1941); Sybilla v. Connally, 66 Ga. App. 678 , 18 S.E.2d 783 (1942); Cagle v. Justus, 196 Ga. 826 , 28 S.E.2d 255 (1943); Wortham v. Beaver-Lois Mills, 71 Ga. App. 685 , 31 S.E.2d 837 (1944); Franklin v. Mobley, 73 Ga. App. 245 , 36 S.E.2d 173 (1945); Roberts v. Hill, 78 Ga. App. 264 , 50 S.E.2d 706 (1948); Stein Steel & Supply Co. v. Goode Constr. Co., 83 Ga. App. 821 , 65 S.E.2d 183 (1951); Lurz v. John J. Thompson & Co., 86 Ga. App. 295 , 71 S.E.2d 675 (1952); Harmon v. Givens, 88 Ga. App. 629 , 77 S.E.2d 223 (1953); Krasner v. Harper, 90 Ga. App. 128 , 82 S.E.2d 267 (1954); Southern Life Ins. Co. v. Citizens Bank, 91 Ga. App. 534 , 86 S.E.2d 370 (1955); Reserve Life Ins. Co. v. Peavy, 94 Ga. App. 31 , 93 S.E.2d 580 (1956); Pacific Nat'l Fire Ins. Co. v. Cummins Diesel of Ga., Inc., 213 Ga. 4 , 96 S.E.2d 881 (1957); Pioneer Neon Supply Co. v. Johnson & Johnson Constr. Co., 95 Ga. App. 565 , 98 S.E.2d 156 (1957); Simonton Constr. Co. v. Pope, 213 Ga. 360 , 99 S.E.2d 216 (1957); Jack Fred Co. v. Lago, 96 Ga. App. 675 , 101 S.E.2d 165 (1957); Russell v. City of Rome, 98 Ga. App. 653 , 106 S.E.2d 339 (1958); Dayton Rubber Co. v. Dismuke, 102 Ga. App. 85 , 115 S.E.2d 767 (1960); Jett v. Atlanta Fed. Sav. & Loan Ass'n, 104 Ga. App. 688 , 123 S.E.2d 27 (1961); Tanner v. Tanner, 106 Ga. App. 270 , 126 S.E.2d 838 (1962); Maddox v. Dixie Feeds, Inc., 218 Ga. 378 , 127 S.E.2d 918 (1962); Murray v. Life Ins. Co., 107 Ga. App. 545 , 130 S.E.2d 767 (1963); Assurance Co. of Am. v. Bell, 108 Ga. App. 766 , 134 S.E.2d 540 (1963); J.J. Black & Co. v. City of Atlanta, 114 Ga. App. 457 , 151 S.E.2d 824 (1966); Levy v. Empire Ins. Co., 379 F.2d 860 (5th Cir. 1967); Climatrol Indus., Inc. v. Home Indem. Co., 316 F. Supp. 314 (N.D. Ga. 1970); Fireman's Fund Ins. Co. v. Crowder, 123 Ga. App. 469 , 181 S.E.2d 530 (1971); Knight v. Lowery, 124 Ga. App. 172 , 183 S.E.2d 221 (1971); Q.S. King Co. v. Minter, 124 Ga. App. 517 , 184 S.E.2d 594 (1971); Fidelity & Deposit Co. v. Gainesville Iron Works, Inc., 125 Ga. App. 829 , 189 S.E.2d 130 (1972); Clarke v. Fanning, 127 Ga. App. 86 , 192 S.E.2d 565 (1972); Lincoln Land Co. v. Palfery, 130 Ga. App. 407 , 203 S.E.2d 597 (1973); Weaver v. Ralston Motor Hotel, Inc., 135 Ga. App. 536 , 218 S.E.2d 260 (1975); Barone v. Adcox, 235 Ga. 588 , 221 S.E.2d 6 (1975); Chase Manhattan Mtg. & Realty Trust v. Pendley, 405 F. Supp. 593 (N.D. Ga. 1975); Washington Rd. Properties, Inc. v. Home Ins. Co., 145 Ga. App. 782 , 245 S.E.2d 15 (1978); Thorpe v. Collins, 245 Ga. 77 , 263 S.E.2d 115 (1980); AAA Plastering Co. v. TPM Constructors, Inc., 247 Ga. 601 , 277 S.E.2d 910 (1981); William Iselin & Co. v. Davis, 157 Ga. App. 739 , 278 S.E.2d 442 (1981); Sheppard v. Yara Eng'g Corp., 248 Ga. 147 , 281 S.E.2d 586 (1981); Plantation Pipe Line Co. v. 3-D Excavators, Inc., 160 Ga. App. 756 , 287 S.E.2d 102 (1981); Jordan v. Goff, 160 Ga. App. 636 , 287 S.E.2d 640 (1981); McDaniel v. American Druggists Ins. Co. (In re Nat'l Buy-Rite, Inc.), 11 Bankr. 191 (Bankr. N.D. Ga. 1981); Bartley v. Augusta Country Club, Inc., 166 Ga. App. 1 , 303 S.E.2d 129 (1983); Fleming v. Caras, 170 Ga. App. 579 , 317 S.E.2d 600 (1984); Merz v. Professional Health Control of Augusta, Inc., 175 Ga. App. 110 , 332 S.E.2d 333 (1985); Bryan v. Robert Harold Contractors, 177 Ga. App. 25 , 338 S.E.2d 494 (1985); Routh v. St. Marys Airport Auth., 178 Ga. App. 191 , 342 S.E.2d 502 (1986); Murawski v. Roland Well Drilling, Inc., 188 Ga. App. 760 , 374 S.E.2d 207 (1988); Martin & Jones Produce, Inc. v. Lundy, 197 Ga. App. 38 , 397 S.E.2d 461 (1990); Gray v. Higgins, 205 Ga. App. 52 , 421 S.E.2d 341 (1992); Anthony v. Grange Mut. Cas. Co., 226 Ga. App. 846 , 487 S.E.2d 389 (1997); Edelkind v. Boudreaux, 271 Ga. 314 , 519 S.E.2d 442 (1999); Allen v. Dominy, 272 Ga. 399 , 529 S.E.2d 363 (2000); Scott v. Mamari Corp., 242 Ga. App. 455 , 530 S.E.2d 208 (2000); Raintree Trucking Co. v. First Am. Ins. Co., 245 Ga. App. 305 , 534 S.E.2d 459 (2000); Gateway Family Worship Ctrs., Inc. v. H.O.P.E. Found. Ministries, Inc., 244 Ga. App. 286 , 535 S.E.2d 286 (2000); Scott v. Cushman & Wakefield of Ga., Inc., 249 Ga. App. 264 , 547 S.E.2d 794 (2001); Kenny A. v. Perdue, 218 F.R.D. 277 (N.D. Ga. Aug. 18, 2003); Brenner v. Future Graphics, LLC, 258 F.R.D. 561 (N.D. Ga. 2007).

Parties to Actions, Generally

This section is a procedural statement of rule of substantive law that there must be privity of contract. Jordan Co. v. Adkins, 105 Ga. App. 157 , 123 S.E.2d 731 (1961).

This state recognizes the English rule that generally the action on a contract must be brought in the name of the party in whom the legal interest in such contract is vested. O'Leary v. Costello, 169 Ga. 754 , 151 S.E. 487 (1930).

Plaintiff having no right of action at all cannot recover either for the plaintiff's own benefit or for the use of anyone else. Tyler v. National Life & Accident Ins. Co., 48 Ga. App. 338 , 172 S.E. 747 (1934).

Legal right in person to whom obligation due. - Ordinarily an action must be brought in the name of the person having the legal right to maintain it; and the legal right is in the person to whom, according to the terms of the written contract, its obligation is due. United States Epperson Underwriting Co. v. Jessup, 22 F.R.D. 336 (M.D. Ga. 1958), aff'd, 260 F.2d 355 (5th Cir. 1958).

Proper parties to bring an action on a contract are the parties who, in regard to the subject matter of the contract, have given consideration or exchanged mutual promises of performance. American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186 (N.D. Ga. 1978).

Applying O.C.G.A. § 9-2-20 , the action against the parent company could not survive because neither it nor its predecessor was a party to the insurance contract and the parent company's motion for summary judgment was granted. Worsham v. Provident Cos., 249 F. Supp. 2d 1325 (N.D. Ga. 2003).

Defendant cannot be bound to agreement when not a party. - Grant of partial summary judgment to the defendant in a breach of contract action was affirmed because the facts in the record did not show with reasonable certainty what the parties intended to do in the agreement; thus, the agreement on all material terms was not made and the defendant was not a party to the non-disclosure agreement and could not be bound by the agreement's terms. Souza v. Berberian, 342 Ga. App. 165 , 802 S.E.2d 401 (2017).

Nursing home patient not benficiary of arbitration agreement between health care agent and facility. - Nursing home patient was not a third-party beneficiary of an arbitration agreement between the home and the patient's brother-in-law, who was the patient's agent for health care decisions, because, to the extent the patient obtained the benefits of dispute resolution outside the courts, the patient had repudiated this alleged benefit and did not seek to enforce the arbitration agreement, which was not required as a condition to admission to the home. Coleman v. United Health Servs. of Ga., 344 Ga. App. 682 , 812 S.E.2d 24 (2018).

Non-party could not challenge validity of agreement, but could seek a declaration of rights. - In a dispute between a back-up buyer and the buyer and sellers of real property, the back-up buyer had standing under O.C.G.A. § 9-4-2 to seek a declaration of its rights, if any, to the disputed property, although it was not a party to the contracts between the buyer and the sellers; however, the back-up buyer did not have standing to challenge the signatures on those contracts pursuant to O.C.G.A. § 9-2-20 . Del Lago Ventures, Inc. v. QuikTrip Corp., 330 Ga. App. 138 , 764 S.E.2d 595 (2014).

Mortgagor lacked standing to assert the breach-of-contract claim because the mortgagor lacked standing to contest the validity of the transfer or assignment of the loan documents based on the pooling and servicing agreement (PSA) because the mortgagor conceded that the mortgagor was not a party to the PSA. Cornelius v. Bank of Am., NA, F.3d (11th Cir. Sept. 25, 2014)(Unpublished).

Assignee as real party in interest. - In an action on an installment sales contract, when it appears from the contract itself that the original seller of the tobacco combine assigned all its rights, title, and interest in that contract to an assignee, the assignee is the real party in interest. Rigdon v. Walker Sales & Serv., Inc., 161 Ga. App. 459 , 288 S.E.2d 711 (1982).

Trial court erred in granting an assignee summary judgment in an action against a debtor to collect the amount owed on a credit card account agreement the debtor allegedly entered into with an assignor because the assignee failed to show that it was entitled to file suit to recover the outstanding debt against the debtor pursuant to O.C.G.A. § 9-11-17(a) ; the assignee relied on the affidavit of its agent and business records custodian of its credit card accounts to show that the assignor transferred to it all rights and interests to the debtor's account, but the affidavit failed to refer to or attach any written agreements that could complete the chain of assignment from the assignor to the assignee, and although the assignee contended that the debtor did not raise its failure to present a valid assignment in the trial court, the record reflected that that issue was squarely before the trial court because the assignee directly addressed the debtor's defense under § 9-11-17 in its motion for summary judgment, referring to the affidavit to show that it was the assignee. Wirth v. Cach, LLC, 300 Ga. App. 488 , 685 S.E.2d 433 (2009).

Construction of section with § 13-3-42 . - Former Civil Code 1895, § 4939 (see now O.C.G.A. § 9-2-20 ) was a codification of the common law, and was frequently construed with former Civil Code 1895, §§ 3657, 3661, and 3664 (see now O.C.G.A. § 13-3-42 ) which permitted the promisee to maintain an action, although the promisee was a stranger to the consideration. Hawkins v. Central of Ga. Ry., 119 Ga. 159 , 46 S.E. 82 (1903).

Promisee may sustain action, even though the promisee is a stranger to the consideration. Holmes v. Western Auto Supply Co., 220 Ga. 528 , 140 S.E.2d 204 (1965).

Application to common-law bonds. - Actions on bonds executed by public officials but not required by law or statute (generally referred to as common-law bonds) at the time of creation are governed by the common-law rule in this section. National Sur. Co. v. Seymour, 177 Ga. 735 , 171 S.E. 380 (1933).

Action by general or special owner. - Interest of plaintiff entitled to sue in contract under this section for injury to goods may be either that of general or special owner. Inman & Co. v. Seaboard Air Line Ry., 159 F. 960 (S.D. Ga. 1908).

Two persons who separately owned articles of personalty and sold them jointly for a lump sum jointly owned the debt against the buyer for the purchase money and could bring a joint action against the debtor for its recovery. Mathis v. Shaw, 38 Ga. App. 783 , 145 S.E. 465 (1928).

When plaintiffs have joint right of action on contract for reimbursement for services which the plaintiffs jointly promised to perform, the plaintiffs may bring an action listing all their names as plaintiffs. Boroughs, Dale & Griffin v. St. Elias E. Orthodox Church, 120 Ga. App. 434 , 170 S.E.2d 865 (1969).

Agreement by wife to be financially responsible for husband's debts to a nursing home provided her with a legal interest in the contract executed between her husband and the home. Fisher v. Toombs County Nursing Home, 223 Ga. App. 842 , 479 S.E.2d 180 (1996).

Former husband lacked standing to assert claims arising from violations of security deed. - Because a former husband was never a party to a security deed and had no legal interest in the property at the time a bank and a law firm sent notices of the default and the acceleration, the former husband lacked standing to assert any claims arising from violations of the security deed; therefore, it was of no consequence even if the bank and law firm had failed to comply with the notice provisions in the security deed. Farris v. First Fin. Bank, 313 Ga. App. 460 , 722 S.E.2d 89 (2011).

Action by a corporation must be brought in its own corporate name, and not in the name of its trustees or directors. Kersey v. Grant, 177 Ga. 501 , 170 S.E. 501 , answer conformed to, 47 Ga. App. 408 , 170 S.E. 503 (1933).

Corporation lacked standing to pursue damages. - Trial court did not err in directing a verdict against a corporation and the corporation's owner as to their breach of contract and wrongful foreclosure claims because two of the owner's other companies suffered damages from the alleged misconduct, and those entities were not parties to the suit; the corporation lacked standing to pursue any damages belonging to the companies, and thus, the trial court properly determined that the corporation and owner were not entitled to recover damages belonging to the companies. The trial court properly determined that the corporation and the owner were not entitled to recover damages belonging to the companies. Canton Plaza, Inc. v. Regions Bank, Inc., 315 Ga. App. 303 , 732 S.E.2d 449 (2012).

Action by removed member of LLC. - Party to an LLC operating agreement had standing to bring an action for the breach of contract even though the party had been removed as a member of the LLC under O.C.G.A. § 9-2-20(a) . Kaufman Development Partners, L.P. v. Eichenblatt, 324 Ga. App. 71 , 749 S.E.2d 374 (2013).

Breach of lease. - In action to recover damages for breach of written lease, plaintiff corporation must show that it was a party to the contract sued upon, by written assignment from assignees of original lessee. Sorrento Italian Restaurant, Inc. v. Franco, 107 Ga. App. 301 , 129 S.E.2d 822 (1963).

Homeowners' actions against loan servicers. - While the mortgagors alleged a transfer of the mortgagors' security deed violated a pooling and servicing agreement (PSA), and that the attorney transferring the security deed lacked authority, the mortgagors were not a party to the PSA or the challenged transfer, and thus did not have standing to contest the validity of the transfer under O.C.G.A. § 9-2-20(a) . Edward v. BAC Home Loans Servicing, L.P., F.3d (11th Cir. Aug. 16, 2013)(Unpublished).

Borrowers lacked standing to challenge assignment of security deed. - In a wrongful foreclosure action, the district court did not err in concluding that the borrowers lacked standing to challenge the assignment of the security deed because, even though the assignment allegedly contained a patent defect in attestation, they were not parties to the assignment and had demonstrated no other right to challenge it. Haynes v. McCalla Raymer LLC, 793 F.3d 1246 (11th Cir. 2015).

Action by note holder. - Action cannot be maintained upon promissory note payable to the order of a named person which has not been endorsed or otherwise transferred, except in the name of the person to whom it is payable. Kohn v. Colonial Hill Co., 38 Ga. App. 286 , 144 S.E. 33 (1928).

When a note is payable to a given person or order, the holder thereof, other than the payee, cannot sue thereon in the holder's own name, unless the paper has been endorsed or transferred to the holder in writing. Kersey v. Grant, 177 Ga. 501 , 170 S.E. 501 , answer conformed to, 47 Ga. App. 408 , 170 S.E. 503 (1933).

Holder of legal title, as trustee, may sue even though the holder is not entitled to the beneficial interest. Wortsman v. Wade, 77 Ga. 651 , 4 Am. St. R. 102 (1886).

Right of agent to bring action. - Agent has a right of action in the agent's own name on a contract made with the agent in the agent's individual name, even though the agency is known; and in cases of an agency coupled with an interest, which is known to the party contracting with the agent, the agent may maintain an action on a contract in the agent's own name. Whitfield v. Boykin, 48 Ga. App. 141 , 172 S.E. 82 (1933).

Agent of known principal, whose agency is not coupled with an interest known to the opposite party in such manner as to form an exception to the general rule, may not, in the agent's own name, bring an action for the recovery of the principal's money. Curry v. Roberson, 87 Ga. App. 785 , 75 S.E.2d 282 (1953).

Insurance contract is no exception to the general rule of this section. Equitable Fire Ins. Co. v. Jefferson Std. Life Ins. Co., 26 Ga. App. 241 , 105 S.E. 818 (1919) (see O.C.G.A. § 9-2-20 ).

Action on insurance policy must be brought in name of holder of legal title. Tyler v. National Life & Accident Ins. Co., 48 Ga. App. 338 , 172 S.E. 747 (1934).

Duty of insurer is only to its insured and not to one who is not a party to the contract, even if the premiums on the policies were paid by that party. Gaines v. American Title Ins. Co., 136 Ga. App. 162 , 220 S.E.2d 469 (1975).

Only insured or assignee can maintain action on policy. - Generally, one other than the person to whom an insurance policy was issued cannot, in that person's own name, maintain an action thereon, unless the policy has been duly assigned to that person in writing. Insured Lloyds v. Bobo, 116 Ga. App. 89 , 156 S.E.2d 518 (1967).

Action on a policy of insurance or on a written binder must be brought in the name of the holder of the legal title thereto. Insured Lloyds v. Bobo, 116 Ga. App. 89 , 156 S.E.2d 518 (1967).

Trustee in a holding company's bankruptcy case did not have the right to bring a breach of contract claim against an insurer under a fidelity bond; although both the holding company and the company's subsidiary, a bank, were named as insureds, only the bank had the right to bring the claim under the terms of the bond because the bank's employees caused the alleged loss. Lubin v. Cincinnati Ins. Co., 677 F.3d 1039 (11th Cir. 2012)(Unpublished).

Fact that insurance policy did not specifically exclude benefits of coverage to all the world save the insured does not show intent that anyone could maintain an action under the policy. Insured Lloyds v. Bobo, 116 Ga. App. 89 , 156 S.E.2d 518 (1967).

Action against insurer by injured party prohibited. - In absence of policy provisions to the contrary, one who suffers injury is not in privity of contract with insurer under liability insurance policy and cannot reach proceeds of the policy for payment of a claim by an action directly against insurer. Insured Lloyds v. Bobo, 116 Ga. App. 89 , 156 S.E.2d 518 (1967); Lee v. Petty, 133 Ga. App. 201 , 210 S.E.2d 383 (1974); Gilbert v. Van Ord, 203 Ga. App. 660 , 417 S.E.2d 390 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 390 (1992).

Owner of automobile consigned for sale to insured dealer is not a beneficiary within the purview of this section, so as to entitle the owner to maintain an action against the insurer which issued the policy covering theft. First of Ga. Ins. Co. v. Augusta Ski Club, 118 Ga. App. 731 , 165 S.E.2d 476 (1968).

Interest in credit insurance policy in creditor, not debtor. - Legal and beneficial interest in credit insurance policy insuring certain debtors of creditor against contingency of death and permanent disability and agreeing to pay creditor balance of indebtedness in event of such contingencies is in creditor and debtor has no cause of action thereunder for insurer's failure to pay on disability claim by debtor. First of Ga. Ins. Co. v. Augusta Ski Club, 118 Ga. App. 731 , 165 S.E.2d 476 (1968).

Incidental benefit from insurance. - Absent statutory provision vesting right to maintain action, fact that one receives an incidental benefit from insurance, i.e., payment of balance of one's indebtedness upon the happening of specified events, does not alter fact that the right of action is not vested in that person. Insured Lloyds v. Bobo, 116 Ga. App. 89 , 156 S.E.2d 518 (1967).

When plaintiff was not an insured under homeowner's policy but owned property, the loss of which was insured, the plaintiff had no right to sue insurer under the policy. First of Ga. Ins. Co. v. Augusta Ski Club, 118 Ga. App. 731 , 165 S.E.2d 476 (1968).

Action against insurer by injured party with judgment against insured. - Insurance policy which provides that any person who has secured a judgment against the insured shall thereafter be entitled to recover under the policy makes injured party who obtains a judgment against the insured a third-party beneficiary entitled to bring an action on the policy under this section. Davis v. National Indem. Co., 135 Ga. App. 793 , 219 S.E.2d 32 (1975).

In the absence of a provision in an insurance policy that any person who has secured a judgment against the insured shall thereafter be entitled to recover under the policy, there is no privity of contract between the insurer and the insured party under this section. Davis v. National Indem. Co., 135 Ga. App. 793 , 219 S.E.2d 32 (1975).

Borrower may not sue title insurer upon mortgage title policy issued to lender on the borrower's real estate loan. Sherrill v. Louisville Title Ins. Co., 134 Ga. App. 322 , 214 S.E.2d 410 (1975).

Parties contracting to divert charter granted for public purposes proper defendants. - Municipal authorities, street railroad company, and manufacturing company charged to have combined in diversion of charter granted for public purposes to private benefit and to have been parties to a contract for that purpose were properly joined as defendants. Mayor of Macon v. Harris, 73 Ga. 428 (1884).

Action against a corporation under joint venture theory. - In an insured's suit asserting claims for breach of contract under O.C.G.A. § 9-2-20 in connection with an insurer's denial of the insured's claim for proceeds of a long-term disability insurance policy, the parent corporation of the insurer, which administered the insurer's policies, was not liable under a joint venture theory because the insured's claims sounded in contract, not negligence. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).

Action against a corporation under an alter ego theory. - Insured could not pierce the corporate veil and hold the parent insurance company liable under an alter ego theory for a breach of the policy by the subsidiary because the insured did not show that the subsidiary had insufficient assets to satisfy the insured's claims, and the parent company was not a party to the policy issued by its subsidiary. Perry v. Unum Life Ins. Co. of Am., 353 F. Supp. 2d 1237 (N.D. Ga. 2005).

In an insured's suit asserting claims for breach of contract under O.C.G.A. § 9-2-20 in connection with an insurer's denial of the insured's claim for proceeds of a long-term disability insurance policy, the parent corporation of the insurer was not liable under an alter ego theory; because the insurer was not insolvent and had funds sufficient to satisfy any judgment for the insured, the insurer's corporate veil could not be pierced so as to hold the parent liable, even if the insurer and the parent failed to maintain separate corporate existences. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).

Plaintiffs could not assert claim based on instruments to which plaintiffs were not parties or third-party beneficiaries. - Plaintiffs' claim that the defendant violated the "one satisfaction rule" by foreclosing on their home failed because the plaintiffs could not assert a claim against the defendant based on a purported insurance policy or settlement agreement as the plaintiffs were not parties to, or third-party beneficiaries of, those instruments. Fenello v. Bank of Am., N.A., F. Supp. 2d (N.D. Ga. Nov. 8, 2013).

In a case in which a pro se borrower argued that an assignment was invalid because it was executed after the creditor assigned the note and did not comply with the pooling and servicing agreement for the trust or state law, the borrower lacked standing since the borrower was not a party to the assignment. Morrison v. Bank of Am., N.A., F. Supp. 2d (N.D. Ga. July 31, 2014).

Siblings who signed separate notes for mutual businesses. - Sibling who was not a party to or a third-party beneficiary of the other's residential mortgage, equity line of credit, or promissory note lacked standing to raise claims based on those transactions, although both the borrower and the sibling took out personal loans associated with their furniture businesses. Nelson v. Hamilton State Bank, 331 Ga. App. 419 , 771 S.E.2d 113 (2015).

Trust that did not exist at time of transaction not a party. - Trial court did not err in granting summary judgment to the sellers as to the claims made by a trust against them because, when the sale and purchase of the house at issue was conducted, the trust did not even exist at the time the alleged misrepresentations or fraudulent concealments were made, thus, there was no evidence existing that the trust relied on the alleged misstatements. Stephen A. Wheat Trust v. Sparks, 325 Ga. App. 673 , 754 S.E.2d 640 (2014).

Third Party Beneficiaries

Exception to the general rule is third-party beneficiary theory, which allows the beneficiary of a contract between other parties to maintain an action against the promisor of a contract. American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186 (N.D. Ga. 1978).

Third-party beneficiary contract is one in which a promisor engages to promisee to render some performance to a third person; it must clearly appear from the contract that it was intended for the benefit of the third party. Stewart v. Gainesville Glass Co., 131 Ga. App. 747 , 206 S.E.2d 857 (1974), aff'd, 233 Ga. 578 , 212 S.E.2d 377 (1975).

Underlying contract required before one can be third-party beneficiary. - Contractor was not a third-party beneficiary of the relationship between a county and the Environmental Protection Department because a Land Application System permit issued to the county was not a contract. Forsyth County v. Waterscape Servs., LLC, 303 Ga. App. 623 , 694 S.E.2d 102 (2010).

Subsection (b) not to be given retroactive effect. - While Georgia Laws 1949, p. 455, amending this section, was apparently enacted to permit beneficiary under contract between other parties to recover, it could be given no retroactive effect, as to do so would violate the provisions of the United States and state Constitutions regarding impairing obligations of contracts by creating a right for one to recover under an existing contract when one previously had no such right and by subjecting a party to an existing contract to liability to a third person who previously had no right under the contract. Guest v. Stone, 206 Ga. 239 , 56 S.E.2d 247 (1949).

In order for third party to have standing to enforce contract under this section it must clearly appear from the contract that it was intended for the third party's benefit; the mere fact that the third party would benefit from performance of the agreement is not alone sufficient. Backus v. Chilivis, 236 Ga. 500 , 224 S.E.2d 370 (1976); Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 (1978); American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186 (N.D. Ga. 1978); Jahannes v. Mitchell, 220 Ga. App. 102 , 469 S.E.2d 255 (1996); Rowe Dev. Corp. v. Akin & Flanders, Inc., 240 Ga. App. 766 , 525 S.E.2d 123 (1999).

It must appear that both parties to the contract intended that the third person should be the beneficiary of the contract in order for the third party to have standing. Donalson v. Coca-Cola Co., 164 Ga. App. 712 , 298 S.E.2d 25 (1982).

Although as a general rule an action on a contract is brought by a party to it, the beneficiary of a contract made between other parties for the beneficiary's benefit may maintain an action against the promisor on the contract. Somers v. Avant, 244 Ga. 460 , 261 S.E.2d 334 (1979).

Beneficiary of a contract made between parties for its benefit may maintain an action against the promisor on the contract, the only requirement being that the third party be an intended beneficiary. Therefore, plaintiff's status depends on the intention of the contracting parties to benefit it as a third party. Beckman Cotton Co. v. First Nat'l Bank, 666 F.2d 181 (5th Cir. 1982).

In order for a third party to have standing to enforce a contract under subsection (b) of O.C.G.A. § 9-2-20 , it must clearly appear from the contract that it was intended for his or her benefit. The mere fact that the third party would benefit from performance of the agreement is not alone sufficient. Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347 , 411 S.E.2d 75 , cert. denied, 201 Ga. App. 905 , 411 S.E.2d 75 (1991).

In order for a non-party to have standing to enforce a contract as a third party beneficiary, it must clearly appear that one party to the contract promised another party to the contract to render some performance to the non-party to the contract; further, it must appear that both parties to the contract intended that the contract benefit the non-party. Vaughn, Coltrane & Assocs. v. Van Horn Constr., Inc., 254 Ga. App. 693 , 563 S.E.2d 548 (2002).

Trial court properly granted summary judgment to an employer in an action by an injured employee, asserting that the employer breached its contract with a treating physician to provide professional liability insurance, as the employee, who was treated as a patient by the physician, was not a third-party beneficiary who was intended to have standing to bring such a claim under O.C.G.A. § 9-2-20(b) . Crisp Reg'l Hosp., Inc. v. Oliver, 275 Ga. App. 578 , 621 S.E.2d 554 (2005).

In a class action filed by a group of uninsured patients arising out of a breach of a lease agreement, the patients failed to show a third-party beneficiary status, and thus, failed to prove standing to sue for a breach, despite the fact that the agreement was intended to promote the public health needs of the community and to continue the high quality and level of health care services, as the patients had no more standing than any other member of the public; moreover, the patients' reliance upon provisions of the agreement requiring the hospital to provide indigent and charity care was misplaced. Davis v. Phoebe Putney Health Sys., 280 Ga. App. 505 , 634 S.E.2d 452 (2006).

Third party must be party to consideration. - Third party beneficiary may maintain action in the beneficiary's own name on contract between two other parties when such contract was made for the beneficiary's benefit, when the beneficiary was a party to the contract or in privity, where a trust was created for the beneficiary under the contract, or when the beneficiary's relation or status has been changed thereby. Waxelbaum v. Waxelbaum, 54 Ga. App. 823 , 189 S.E. 283 (1936); First Nat'l Bank & Trust Co. v. Roberts, 187 Ga. 472 , 1 S.E.2d 12 (1939); Sybilla v. Connally, 66 Ga. App. 678 , 18 S.E.2d 783 (1942); Harris v. Joseph B. English Co., 83 Ga. App. 281 , 63 S.E.2d 346 (1951), for comment, see 13 Ga. B.J. 462 (1951).

To maintain an action on a contract, third person must be a party to the consideration, or the contract must have been entered into for the third party's benefit, and the third party must have some legal or equitable interest in its performance. Whitley v. Bryant, 198 Ga. 328 , 31 S.E.2d 701 (1944).

Enforcement by beneficiary supplying consideration. - Contract made by the mother, not only for the benefit of the child, but on behalf of the child meant that the child had a substantial interest in the result of the litigation. Savannah Bank & Trust Co. v. Wolff, 191 Ga. 111 , 11 S.E.2d 766 (1940).

Action by third person with incidental benefit barred. - Requirement that action be brought "in the name of the party in whom the legal interest in such contract is vested" bars action by a third person who has merely an incidental benefit in its performance, but it does not preclude an action in the name of a third person who has a direct legal or equitable interest in the performance of the contract, and for whose benefit it was expressly undertaken. Whitley v. Bryant, 198 Ga. 328 , 31 S.E.2d 701 (1944).

Subsection (b) of this section is limited in application to intended beneficiaries, as distinguished from incidental beneficiaries. Miree v. United States, 526 F.2d 679 (5th Cir.), different result reached on rehearing, 538 F.2d 643 (5th Cir. 1976), judgment en banc vacated, 433 U.S. 25, 97 S. Ct. 2490 , 53 L. Ed. 2 d 557 (1977).

County residents who received water and sewer services under a franchise agreement between a city and the county lacked standing to bring suit against the city for damages for excess rates allegedly charged by the city to county customers under the franchise agreement and a settlement agreement between the city and county. Page v. City of Conyers, 231 Ga. App. 264 , 499 S.E.2d 126 (1998).

Injured motorist and the motorist's spouse did not have standing to sue the contractors who widened a highway pursuant to a contract with the state highway department following the motorist's accident on the on-ramp to the highway because the motorist and the motorist's spouse were not third-party beneficiaries to the construction contract and the mere fact that they would benefit incidentally from the performance of the contract was not alone sufficient to give them standing to sue on the contract. Hubbard v. DOT, 256 Ga. App. 342 , 568 S.E.2d 559 (2002).

Under O.C.G.A. § 9-2-20(b) , a successor to a competing sponsor was not a third party beneficiary of an agreement between a race car owner and a promoter, but was merely an incidental beneficiary; thus, the successor lacked standing to challenge the promoter's interpretation of the agreement, and a preliminary injunction against the promoter was improper. AT&T Mobility, LLC v. NASCAR, Inc., 494 F.3d 1356 (11th Cir. 2007).

Insured not intended third-party beneficiary. - In an insured's suit asserting claims for breach of contract under O.C.G.A. § 9-2-20 in connection with an insurer's denial of the insured's claim for proceeds of a long-term disability insurance policy, the insured's claim against the parent corporation of the insurer failed because the insured was not an intended third-party beneficiary of a contract whereby the parent provided administrative services for the insurer's policies. That the insured benefitted from the performance of that contract was inconsequential, as the contract required the parent to provide a wide variety of other services to the insurer, including auditing, cash management, and marketing services. Adams v. UNUM Life Ins. Co. of Am., 508 F. Supp. 2d 1302 (N.D. Ga. 2007).

In construing supposed third-party beneficiary relationship, it is obligatory to determine intent of the parties to the contract. Continental Cas. Co. v. Continental Rent-A-Car of Ga., Inc., 349 F. Supp. 666 (N.D. Ga.), aff'd, 468 F.2d 950 (5th Cir. 1972).

Under Georgia law, a third-party beneficiary can bring an action on a contract between other parties only if the promisor engages to the promisee to render some performance to a third person and both parties to the contract intend that the third person should be the beneficiary. American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186 (N.D. Ga. 1978).

Inmate's contention that the terms of a contract between Stone Mountain Memorial Association and the Georgia Department of Corrections (DOC) requiring the Association to provide a safe workplace, safety gear and necessary protective clothing, were intended to benefit the inmates by providing for their safety while working pursuant to the contract, was rejected because, viewed as a whole, the contract showed that the inmates' safety remained the primary responsibility of the DOC, and the Association's promise was not an undertaking on behalf of the inmates; thus, the inmate was not an intended beneficiary of the contract pursuant to O.C.G.A. § 9-2-20 . Gay v. Ga. Dep't of Corr., 270 Ga. App. 17 , 606 S.E.2d 53 (2004).

Third party status determined by construction of contract. - Rights of a third person to sue on a contract made for the third person's benefit depend on the terms of the agreement and are no greater than those granted by the contract, as intended by the parties thereto; to recover, a beneficiary must be brought within its terms. Deal v. Chemical Constr. Co., 99 Ga. App. 413 , 108 S.E.2d 746 (1959).

Since recovery on third person beneficiary contract is a recovery on the contract itself, right of the beneficiary is no greater than if the contract were enforced between the nominal parties, the beneficiary being in no better position than the promisee. Deal v. Chemical Constr. Co., 99 Ga. App. 413 , 108 S.E.2d 746 (1959).

Party's status as a third-party beneficiary depends upon the intention of the contracting parties to benefit the third party, which is determined by a construction of the contract as a whole. American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186 (N.D. Ga. 1978).

Promisee did not have standing to sue the maker and assignee of the note for breach of those two parties' asset purchase agreement (APA) because the APA clearly stated that no other person had any right under the APA as a third party beneficiary or otherwise. Kaesemeyer v. Angiogenix, Inc., 278 Ga. App. 434 , 629 S.E.2d 22 (2006).

In a breach of contract action, the appellate court erred in concluding that a worker killed at a city airport construction site was an intended beneficiary of all of the contracts between the city and the contractors as the court did not properly consider the definition of the term "all participants" and did not consider the parties' contractual obligations separately. Archer W. Contrs., Ltd. v. Estate of Estate of Pitts, 292 Ga. 219 , 735 S.E.2d 772 (2012).

In a premises liability action, the trial court properly granted summary judgment to the hotel franchisee where there was no genuine issue of material fact that no apparent agency existed between the hotel owner and the franchisee and the franchise contract between the hotel and the franchisee showed no intent to benefit third persons such as hotel guests. Bright v. Sandstone Hospitality, LLC, 327 Ga. App. 157 , 755 S.E.2d 899 (2014).

In an insurance dispute, the grant of summary judgment to the homeowner and house insurer was affirmed against the secondary insurer because the homeowner was specifically named on an endorsement as an additional insured on the secondary insurer's policy and that policy was a contract that clearly intended, on the contract's face, to benefit the homeowner as a third-party beneficiary. Southern Trust Insurance Company v. Cravey, 345 Ga. App. 697 , 814 S.E.2d 802 (2018), cert. denied, No. S18C1319, 2018 Ga. LEXIS 820 (Ga. 2018).

Intended third party beneficiary of a contract. - Intended third party beneficiary of a contract between the beneficiary's parents and the corporate operator of a treatment program was entitled to recover the reasonable value of services it failed to provide. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259 , 447 S.E.2d 617 (1994).

County employee had standing to bring an action against the administrator of the county's health plan based on the administrator's alleged failure to exercise its implied duty of good faith and fair dealing in performing its obligations under the agreement with the county. Gardner & White Consulting Servs., Inc. v. Ray, 222 Ga. App. 464 , 474 S.E.2d 663 (1996).

Licensee was properly granted partial summary judgment in the licensor's third-party beneficiary claim against the licensee because, after the licensee sold some of its assets to the subsidiary of the purchaser after entering into the license agreement with the licensor, and the purchaser refused to abide by the agreement, the licensor was not a third-party beneficiary under O.C.G.A. § 9-2-20(b) to the agreements. Marvel Enters. v. World Wrestling Fed'n Entm't, Inc., 271 Ga. App. 607 , 610 S.E.2d 583 (2005).

Although the franchisees were transferees of a builder's warranty, they were not third beneficiaries under O.C.G.A. § 9-2-20(b) ; nevertheless, because there were material issues of fact as to whether all repairs were properly made and the franchisees brought suit within the six-year statute of limitation in O.C.G.A. § 9-3-24 , the trial court erred in granting summary judgment to the contractor. Danjor, Inc. v. Corporate Constr., Inc., 272 Ga. App. 695 , 613 S.E.2d 218 (2005).

Pursuant to O.C.G.A. § 9-2-20(b) , an annuity company had standing to pursue a breach of contract action against two former employees of a financial company; although the former employees and the financial company entered into various nondisclosure and nonsolicitation agreements, the agreements specifically afforded protection to the annuity company. Variable Annuity Life Ins. Co. v. Joiner, 454 F. Supp. 2d 1297 (S.D. Ga. 2006).

Employee's action to enjoin the enforcement of a non-compete clause in a contract between the employee's employer and the employee's desired physician, which was treated as a judgment on the pleadings on appeal, was properly dismissed on standing grounds as the employee was neither a party to the contract nor an intended beneficiary of the contract. Haldi v. Piedmont Nephrology Assocs., P.C., 283 Ga. App. 321 , 641 S.E.2d 298 (2007).

Insurer was not a third-party beneficiary entitled to enforce an arbitration clause of a loan agreement because the loan agreement did not show any intent to allow anyone other than the buyer, seller, and assignee of the seller and the lender to compel arbitration of disputes under the loan agreement. Lawson v. Life of the South Ins. Co., 648 F.3d 1166 (11th Cir. 2011).

Trial court did not err in concluding that a landowner had standing to assert a breach of contract claim because on its face a site plan's location of a dock was intended to benefit the landowner's by protecting the landowner's ability to place a dock between one dock and another dock. Dillon v. Reid, 312 Ga. App. 34 , 717 S.E.2d 542 (2011).

Contracts between public entity and others were for benefit of public. - City's water customers were not third party beneficiaries of the contracts between the city and the city's contractors who provided meter services under O.C.G.A. § 9-2-20(b) because those contracts were intended to benefit the public generally, not the customers specifically. City of Atlanta v. Benator, 310 Ga. App. 597 , 714 S.E.2d 109 (2011), overruled on other grounds, FDIC v. Loudermilk, 2019 Ga. LEXIS 186 (Ga. 2019).

Members of distribution EMCs lacked privity to sue wholesale EMCs. - Suits by classes of former and current members of distribution electric membership corporations (EMCs) seeking to recover millions of dollars in patronage capital from two wholesale EMCs were dismissed because the members lacked privity with the wholesale EMCs, and there was no legal duty under O.C.G.A. § 46-3-340(c) or the EMCs' bylaws requiring distribution of the patronage capital to the members. Walker v. Oglethorpe Power Corp., 341 Ga. App. 647 , 802 S.E.2d 643 (2017), overruled on other grounds, Hanham v. Access Mgmt. Group L.P., 305 Ga. 414 , 825 S.E.2d 217 (2019).

Minors as third-party beneficiaries have standing to sue upon contract made for their benefit. Norris v. Cady, 231 Ga. 19 , 200 S.E.2d 102 (1973).

Action may be maintained by child to enforce contract to adopt and devise, in person or by next friend. Savannah Bank & Trust Co. v. Wolff, 191 Ga. 111 , 11 S.E.2d 766 (1940).

Court-ordered obligation to support one's child is not a third-party beneficiary contract. Baird v. Herrmann, 181 Ga. App. 579 , 353 S.E.2d 75 (1987).

Contract to make will. - When contract to make a will was made by father with grandmother for benefit of plaintiff child, full performance of all the obligations undertaken by father resulted in perfect equitable title in the property in the plaintiff; therefore, whoever held the legal title to the property after the death of the grandmother necessarily held it in trust for the plaintiff who, although not a party to the original contract, was entitled to maintain an action for specific performance. Veruki v. Burke, 202 Ga. 844 , 44 S.E.2d 906 (1947), for comment, see 10 Ga. B.J. 369 (1948).

Seller as beneficiary of letter of credit. - When a defendant bank sent a copy of the credit letter to plaintiff seller of cotton and in its own letter of credit procedures equated "beneficiary" with seller/exporter, this shows that the parties contemplated plaintiff as an intended beneficiary of the contract. The district court therefore correctly held that plaintiff had standing to sue as a third-party beneficiary. Beckman Cotton Co. v. First Nat'l Bank, 666 F.2d 181 (5th Cir. 1982).

Materialmen have beneficial interest in contractor's bond and may bring an action on the bond in their own name rather than in the name of the nominal obligee. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

If the general contractor's payment bond defines a claimant under the bond as one supplying material to a subcontractor, then a materialman of a subcontractor may sue on the bond for the subcontractor's nonpayment; if the bond expressly limits a right of action on the bond to the named obligees or is conditioned on the general contractor's payment of only materialmen having a direct relationship with the general contractor, then a materialman of a subcontractor may not sue on the payment bond; and if the bond is conditioned on the general contractor's payment of all persons furnishing labor and material under or for the contract, then, at a minimum, materialmen of the general contractor may maintain an action on the bond. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

Action by materialman against obligors in bond for materials furnished is not subject to dismissal upon ground that it is not brought in name of obligee named in bond. Robinson Explosives, Inc. v. Dalon Contracting Co., 132 Ga. App. 849 , 209 S.E.2d 264 (1974).

Real estate broker bringing action for commission against closing agent is not prevented from recovery because the broker did not expressly approve or ratify contract providing for distribution of commission by defendant to broker. Guaranty Title Ins. Co. v. Wilson, 123 Ga. App. 3 , 179 S.E.2d 280 (1970).

Restrictive covenant. - When a grantor sells property with a restriction benefiting the grantor's neighbors, the neighbor is a beneficiary who may enforce the restriction. Muldawer v. Stribling, 243 Ga. 673 , 256 S.E.2d 357 (1979).

Grantees under a deed containing restrictive covenants had standing to complain that a successor in title to a separate tract of land deeded by the same grantor had breached identical covenants. Jones v. Gaddy, 259 Ga. 356 , 380 S.E.2d 706 (1989).

Debtors as beneficiaries under Home Affordable Modification Program. - Debtors lacked standing to sue a bank as third party beneficiaries since the debtors were merely incidental beneficiaries of, and did not have enforceable rights under the Home Affordable Modification Program and a service participation agreement. Salvador v. Bank of Am., N.A. (In re Salvador), 456 Bankr. 610 (Bankr. M.D. Ga. 2011).

Denial of bank's motion to dismiss was reversed because homeowners were mere incidental beneficiaries who lacked standing to enforce the Home Affordable Modification Program (HAMP) Agreements. As such, the borrower did not have a private right of action to enforce HAMP against the bank. U.S. Bank, N.A. v. Phillips, 318 Ga. App. 819 , 734 S.E.2d 799 (2012).

Contract between state highway department and construction company by which company undertakes to provide for safety of the public during construction of project inures to the benefit of the public, and a member of the public injured as a result of company's negligence in failing to do so may sue the company directly. Lee v. Petty, 133 Ga. App. 201 , 210 S.E.2d 383 (1974).

Enforcement of purchaser's assumption agreement by holder of security deed. - Assignee of a mortgage may enforce it against the purchaser of the property who assumes payment. Reid v. Whisenant, 161 Ga. 503 , 131 S.E. 904 , 44 A.L.R. 599 (1926).

Under well-recognized exception to the general rule, where owner conveys tract of land as security for indebtedness and thereafter sells and conveys such land to purchaser by deed stipulating that purchaser agrees to assume and pay the indebtedness, the grantee in the security deed or the grantee's transferee may enforce the assumption agreement of the purchaser by a suit in equity. National Mtg. Corp. v. Bullard, 178 Ga. 451 , 173 S.E. 401 (1934).

Creditor of vendor may enforce agreement. - When the purchaser of the assets of a firm agrees to pay their debts, a creditor of the firm can enforce this agreement for the creditor's benefit by a bill in equity to which the partners and purchasers are parties. Bell v. McGrady, 32 Ga. 257 (1861).

After married woman conveyed her separate estate absolutely to others in consideration of their agreement to pay her an annuity for life and all debts against her separate property, the agreement may in equity be enforced by her creditors. Reid v. Whisenant, 161 Ga. 503 , 131 S.E. 904 , 44 A.L.R. 599 (1926).

Whe vendor conveys property to purchaser in transaction whereby purchaser agrees to assume and pay debts of vendor, a creditor of the vendor may enforce assumption agreement in equity. O'Leary v. Costello, 169 Ga. 754 , 151 S.E. 487 (1930); First Nat'l Bank v. Rountree, 173 Ga. 117 , 159 S.E. 658 (1931); National Mtg. Corp. v. Bullard, 178 Ga. 451 , 173 S.E. 401 (1934); Alexander v. Dinwiddie, 214 Ga. 441 , 105 S.E.2d 451 (1958).

When vendor conveys property to vendee, who agrees, as partial or entire consideration, to pay debts of vendor, creditor of vendor may enforce assumption agreement against vendee by suit in equity with proper pleadings and parties. Gerson v. Haley, 114 Ga. App. 606 , 152 S.E.2d 654 (1966).

Action against party assuming debt no longer in equity. - Suit upon a note against party assuming the indebtedness is not dismissible because it was brought in a court without equity jurisdiction. Jones v. Frances Wood Wilson Found., Inc., 119 Ga. App. 28 , 165 S.E.2d 882 (1969).

Before the enactment of the 1949 amendment to this section, a suit in equity was required to assert a debt against the party assuming it, but now the action is not considered equitable. Rader v. H. Boyer Marx & Assocs., 142 Ga. App. 97 , 235 S.E.2d 690 (1977) (see now O.C.O.G. § 9-2-20 ).

Contractual provisions were insufficient to create an intended third-party beneficiary status in primary lender. - See American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186 (N.D. Ga. 1978).

Fact that plaintiff may benefit by performance of subcontract does not make it a beneficiary of the subcontract as contemplated under this section, when the benefits provided did not originate on that contract but originated on the primary contract to which the plaintiff was a party. McWhirter Material Handling Co. v. Georgia Paper Stock Co., 118 Ga. App. 582 , 164 S.E.2d 852 (1968).

Mere fact that an owner might benefit from a subcontractor's performance of a contract provision is insufficient to entitle the owner to claim a right to secure the enforcement of that provision when the subcontract indicates that it is solely for the benefit of the contractor and subcontractor. Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389 , 367 S.E.2d 278 (1988).

Stock purchase agreement to protect purchasers from double liability. - Contractual provisions in a stock purchase agreement whereby purchasers of corporation's stock guaranteed their pro rata shares of the outstanding debts of the corporation did not create an enforceable promise to pay outstanding insurance premiums to an insurance company as a third-party beneficiary since the intention of the parties was to protect the purchasers from incurring double liability on the corporation's outstanding debts, as well as the purchase price. Continental Cas. Co. v. Continental Rent-A-Car of Ga., Inc., 349 F. Supp. 666 (N.D. Ga.), aff'd, 468 F.2d 950 (5th Cir. 1972).

Contract between county and another party. - No plaintiff may maintain action as third-party beneficiary based upon alleged breach of contract between county and another party. Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 (1978).

No third-party beneficiaries to agreement. - Trial court did not err by finding that an inmate was not a third-party beneficiary to the contract between the county sheriff's office and a medical provider because under the express terms of the contract, there were no third-party beneficiaries to the agreement. Graham v. Cobb County, 316 Ga. App. 738 , 730 S.E.2d 439 (2012).

State employee receiving benefits under state health plan. - State employee could not bring a breach of contract action against a managed healthcare company (MHC) that maintained a national PPO network of providers and the Georgia Department of Community Health (DCH) regarding a contract between DCH and the MHC under which the MHC managed a network of PPO network providers for DCH; the employee was not a third-party beneficiary of that contract. Mitchell v. Ga. Dept. of Cmty. Health, 281 Ga. App. 174 , 635 S.E.2d 798 (2006).

"Potential minority subcontractor" not third-party beneficiary. - Provision in contract between city and general contractor calling for minimum level of minority participation in the contract did not render company listed as a "potential minority subcontractor" in the bid a third-party beneficiary of the prime contract. Southeast Grading, Inc. v. City of Atlanta, 172 Ga. App. 798 , 324 S.E.2d 776 (1984).

Action against club by spouse of member. - Since it was clear that the spouse of a club member had no property rights in the club and could not be a third party beneficiary since the contract was not for the spouse's benefit, the spouse could not maintain an action against the club as the spouse lacked standing to do so. Bartley v. Augusta Country Club, Inc., 172 Ga. App. 289 , 322 S.E.2d 749 (1984).

In personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect the plaintiff from physical injury. Armor Elevator Co. v. Hinton, 213 Ga. App. 27 , 443 S.E.2d 670 (1994).

On-call doctor not liable. - Patient could not rely on a contract between a doctor and a hospital to create a consensual relationship between the patient and the doctor since there was no evidence that the patient was an intended third party beneficiary of the contract with enforceable rights thereunder. Anderson v. Houser, 240 Ga. App. 613 , 523 S.E.2d 342 (1999).

Municipal liability insurance contract. - Members of the public were not third party beneficiaries of municipal liability insurance contracts voluntarily acquired by a city without legislative mandate and did not have the right to bring an action to reform the contract. Googe v. Florida Int'l Indem. Co., 262 Ga. 546 , 422 S.E.2d 552 (1992).

Attorney in title certification case has duty to third-party beneficiary which may be enforced under O.C.G.A. § 9-2-20 . Kirby v. Chester, 174 Ga. App. 881 , 331 S.E.2d 915 (1985).

Attorney as third party beneficiary. - When an attorney sued a former client's ex-spouse to enforce a lien on the former client's former marital residence, which was titled in the ex-spouse's name, the attorney was an unnamed third-party beneficiary of the separation agreement between the ex-spouse and the former client as the agreement provided for the satisfaction of liens against the parties to the agreement, and the attorney was a member of a relatively small group of those with liens against those parties. Northen v. Tobin, 262 Ga. App. 339 , 585 S.E.2d 681 (2003).

Dissolved corporations. - Insurance agency's motion for summary judgment was properly denied in declaratory judgment action since the agency did not assert that the agency had standing to sue as a third-party beneficiary of the insured's insurance policy under O.C.G.A. § 9-2-20(b) . Ins. Agency of Glynn County, Inc. v. Atlanta Cas. Co., 255 Ga. App. 323 , 565 S.E.2d 547 (2002).

Trial court erred in denying the seller's motion to dismiss the dissolved corporation's renewal action as that action was filed more than two years after the dissolved corporation was dissolved and applicable statutory law only gave the dissolved corporation two years from the time of dissolution to file suit, regardless of whether that suit was an original action or was a renewal action filed after the original action had been voluntarily dismissed. Deere & Co. v. JPS Dev., Inc., 264 Ga. App. 672 , 592 S.E.2d 175 (2003).

Bank did not have standing as third party beneficiary of agreement between borrower and borrower's debtor. - Under O.C.G.A. § 9-2-20(b) , a bank was not a third party beneficiary of a guaranty agreement between the bank's borrower and a supplier, although the supplier agreed to deposit all funds owed to the borrower into the borrower's account at the bank. The agreement and letter between the borrower and the supplier did not show any intention that the bank be benefited. U.S. Foodservice, Inc. v. Bartow County Bank, 300 Ga. App. 519 , 685 S.E.2d 777 (2009).

Car owner not third party beneficiary in contract between mechanic and garage. - Car owner was not a third party beneficiary under O.C.G.A. § 9-2-20(b) of a repair contract between the owner's mechanic and a garage to which the mechanic took the car for additional advice and repairs regarding an overheating problem. Dominic v. Eurocar Classics, 310 Ga. App. 825 , 714 S.E.2d 388 (2011).

Debtor has no standing to challenge assignment. - Lower court correctly determined that the debtors lacked standing to challenge the assignment of the security deed to a bank because the security deed afforded the debtors no right to dispute the assignment as they were not third-party beneficiaries of the assignment as a whole and were not intended to directly benefit from the transfer of the power of sale. Ames v. JP Morgan Chase Bank, N.A., 298 Ga. 732 , 783 S.E.2d 614 (2016).

Debtor lacked standing to challenge the assignment of the debtor's security deed by the bank to the new loan servicer because the debtor was neither a party to the assignment nor a beneficiary. Cooley v. Ocwen Loan Servicing, LLC, 729 Fed. Appx. 677 (11th Cir. 2018)(Unpublished).

Failure to show third party beneficiary status. - Trial court did not err in granting a clinic's motion under O.C.G.A. § 9-11-12(b)(6) to dismiss for failure to state a claim as the patients' action failed to state a claim that the patients were entitled as third-party beneficiaries to sue for breach of the contract between the clinic and another medical provider to provide free dialysis treatment for one year after the clinic closed; the contract did not clearly show on the contract's face that the contract was intended for the benefit of the patients as required under O.C.G.A. § 9-2-20(b) , and the contract plainly showed that there was no intent to confer third-party beneficiary status on existing clinic outpatients. Andrade v. Grady Mem'l Hosp. Corp., 308 Ga. App. 171 , 707 S.E.2d 118 (2011).

Complaint Allegations Sufficient

Allegations in complaint sufficiently set out third party beneficiary right. - Trial court erred in granting the defendant's motion to dismiss the plaintiff's claim for breach of contract because the allegations that the defendant demanded and received from the plaintiff an additional $3,850 for license and trophy fees in connection with the purchase of the safari arguably showed the flow of consideration directly from the plaintiff to the defendant for goods and services that the defendant allegedly failed to provide thus creating a third party beneficiary right for the plaintiff. Wright v. Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd., 330 Ga. App. 508 , 767 S.E.2d 513 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 59 Am. Jur. 2d, Parties, §§ 32, 140, 141, 148.

19 Am. Jur. Pleading and Practice Forms, Parties, § 3.

C.J.S. - 67A C.J.S., Parties, §§ 9 et seq., 50, 51, 57, 70, 71.

ALR. - Action on implied contract arising out of fraud as within statutes of limitation applicable to fraud, 3 A.L.R. 1603 .

Enforceability by the purchaser of a business, of a covenant of a third person with his vendor not to engage in a similar business, 22 A.L.R. 754 .

Loss of profits as elements of damages for fraud of seller, as to quality of goods purchased for resale, 28 A.L.R. 354 .

Right of beneficiary to enforce contract between third persons to provide for him by will, 33 A.L.R. 739 ; 73 A.L.R. 1395 .

Right of third person to maintain action at law on sealed instrument, 47 A.L.R. 5 ; 170 A.L.R. 1299 .

Actions at law between partners and partnerships, 58 A.L.R. 621 ; 168 A.L.R. 1088 .

Liability of water company to private owner or insurer for breach of its contract with municipality to supply pressure for fire purposes, 62 A.L.R. 1205 .

Right of third person to enforce contract between others for his benefit, 81 A.L.R. 1271 ; 148 A.L.R. 359 .

Right of beneficiary to bring action under death statute where executor or administrator, who by the statute is the proper party to bring it, fails to do so, 101 A.L.R. 840 .

Right of third person entitled to maintain an action at law on a contract between other parties, or to garnish indebtedness thereunder, to maintain a suit for its reformation, 112 A.L.R. 909 .

Right of one who buys goods from or sells goods to department under a lease or license from proprietor of department store to hold the latter upon the contract, 123 A.L.R. 594 .

Contract to induce promisee to enter into contractual or other relations with third person as enforceable by latter, his creditors or representatives, 129 A.L.R. 172 .

Reconveyance to grantor of land previously conveyed by him in consideration of support of grantor and other persons by grantee, as affecting such other persons, 150 A.L.R. 412 .

Suits and remedies against alien enemies, 152 A.L.R. 1451 ; 153 A.L.R. 1419 ; 155 A.L.R. 1451 ; 156 A.L.R. 1448 ; 157 A.L.R. 1449 .

Rights and remedies of beneficiary after death of insured who had pledged policy to secure debt, 160 A.L.R. 1389 .

Breach of assumed duty to inspect property as ground of liability for damage or injury to third person, 6 A.L.R.2d 284.

Trust beneficiaries as necessary parties to action relating to trust or its property, 9 A.L.R.2d 10.

Right of third person not named in bond or other contract conditioned for support of, or services to, another, to recover thereon, 11 A.L.R.2d 1010.

Suspension or expulsion from social club or similar society and the remedies therefor, 20 A.L.R.2d 344.

Suspension or expulsion from professional association and the remedies therefor, 20 A.L.R.2d 531.

Right of owner's employee, injured by subcontractor, to recover against general contractor for breach of contract between latter and owner requiring contractor and subcontractors to carry insurance, 22 A.L.R.2d 647.

Assignee's right to enforce lessor's covenant to renew or extend lease, 29 A.L.R.2d 837.

Tenant's capacity to sue independent contractor, as third-party beneficiary, for breach of contract between landlord and such contractor for repair or remodeling work, 46 A.L.R.2d 1210.

Power and standing of personal representative of deceased promisee to enforce a contract made for benefit of a third party, 76 A.L.R.2d 231.

Right of insurance agent to sue in his own name for unpaid premium, 90 A.L.R.2d 1291.

Mutual rescission of release of contract as affecting rights of third-party beneficiary, 97 A.L.R.2d 1262.

Right of child to enforce provisions for his benefit in parents' separation or property settlement agreement, 34 A.L.R.3d 1357.

Surveyor's liability for mistake in, or misrepresentation as to accuracy of, survey of real property, 35 A.L.R.3d 504.

Judgment in action on express contract for labor or services as precluding, as a matter of res judicata, subsequent action on implied contract (quantum meruit) or vice versa, 35 A.L.R.3d 874.

Attorney's liability, to one other than his immediate client, for consequences of negligence in carrying out legal duties, 45 A.L.R.3d 1181; 61 A.L.R.4th 464; 61 A.L.R.4th 615.

Discharge of debtor who makes payment by delivering checks payable to creditor to latter's agent, where agent forges creditor's signature and absconds with proceeds, 49 A.L.R.3d 843.

Similarity of ownership or control as basis for charging corporation acquiring assets of another with liability for former owner's debts, 49 A.L.R.3d 881.

Bailor's right of direct action against bailee's theft insurer for loss of bailed property, 64 A.L.R.3d 1207.

Right in absence of express statutory authorization, of one convicted of crime and imprisoned or paroled, to prosecute civil action, 74 A.L.R.3d 680.

Liability of security services company to injured employee as beneficiary of security services contract between company and employer, 75 A.L.R.4th 836.

Breach of assumed duty to inspect property as ground for liability to third party, 13 A.L.R.5th 289.

Enforceability of trial period plans (TPP) under the home affordable modification program (HAMP), 88 A.L.R. Fed. 2d 331.

9-2-21. Parties to actions for torts; notice to Department of Community Health for a party who has received medical assistance benefits.

  1. An action for a tort shall, in general, be brought in the name of the person whose legal right has been affected. In the case of an injury to property, a tort action shall be brought in the name of the person who was legally interested in the property at the time the injury thereto was committed or in the name of his assignee.
  2. An action for a tort shall be brought against the party committing the injury, either by himself, his servant, or an agent in his employ.
  3. If the person whose legal right has been affected has received medical assistance benefits pursuant to Chapter 4 of Title 49, prior to initiating recovery action, the representative or attorney who has actual knowledge of the receipt of said benefits shall notify the Department of Community Health of the claim.  Mailing and deposit in a United States post office or public mail box of said notice addressed to the Department of Community Health with adequate postage affixed is adequate legal notice of the claim. Notice as provided in this subsection shall not be a condition precedent to the filing of any action for tort.  Initiating recovery action shall include any communication with a party who may be liable or someone financially responsible for that liability with regard to recovery of a claim including but not limited to the filing of an action in court.

    (Orig. Code 1863, § 3182; Code 1868, § 3193; Code 1873, § 3258; Code 1882, § 3258; Civil Code 1895, § 4940; Civil Code 1910, § 5517; Code 1933, § 3-109; Ga. L. 1993, p. 1080, § 1; Ga. L. 1999, p. 296, § 24.)

Law reviews. - For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 20 (1993).

JUDICIAL DECISIONS

This section requires that civil actions be brought in name of real parties in interest, and does not touch upon the question of who may present an order or pleading to the court on behalf of one of the parties. Dixie-Land Iron & Metal Co. v. Piedmont Iron & Metal Co., 235 Ga. 503 , 220 S.E.2d 130 (1975).

In an action for damages to and to enjoin further damage to real property, the real party in interest is the person or persons who own, lease, or have a legal interest in the property. Equitable Life Assurance Soc'y v. Tinsley Mill Village, 249 Ga. 769 , 294 S.E.2d 495 (1982).

Section 51-1-11 provides exception to this section. - Former Code 1933, § 105-106 (see now O.C.G.A. § 51-1-11 ), providing that if tort results from violation of a duty, itself the consequence of a contract, right of action was confined to parties and privies to that contract, except in cases where the party would have had a right of action for the injury done, independently of the contract, set forth an exception to former Code 1933, § 3-109, (see now O.C.G.A. § 9-2-21 ). Black v. Southern Ry., 48 Ga. App. 445 , 173 S.E. 199 (1934).

Former Civil Code 1910, § 5517 (see now O.C.G.A. § 9-2-21 ) governed right of action under former Code 1933, § 105-108 (see now O.C.G.A. § 51-2-2 ) for torts by servant. Burch v. King, 14 Ga. App. 153 , 80 S.E. 664 (1914).

Conditional vendor has right of action for damages to automobile. Louisville & N.R.R. v. Dickson, 158 Ga. 303 , 123 S.E. 12 (1924); Ryals v. Seaboard Air-Line Ry., 32 Ga. App. 453 , 123 S.E. 733 (1924).

Minor may maintain action for damages on account of any tort resulting in damages to the minor, whether or not the tortious act affects the minor's parent. Kite v. Brooks, 51 Ga. App. 531 , 181 S.E. 107 (1935).

Action should be brought in minor's name. - As minor plaintiff in action for injuries caused by tortious conduct of defendant is real party in interest and next friend is merely an officer of the court who is to protect the rights of the minor, the action should properly be brought in the name of the minor, by the minor's next friend, but if the action is brought in the name of the next friend, the difference is of little consequence. Kite v. Brooks, 51 Ga. App. 531 , 181 S.E. 107 (1935).

Action to recover property set apart to minor children which has been taken and converted by other persons should be brought in the name of such children, regardless of whether they sue by guardian or next friend or without representation. Pardue Medicine Co. v. Pardue, 194 Ga. 516 , 22 S.E.2d 143 (1942).

Mentally incompetent plaintiff. - In an action for injuries by a mentally incompetent plaintiff, the statute of limitations did not continue indefinitely and started to run upon entry into the case of the plaintiff's mother's next friend. Price v. Department of Transp., 214 Ga. App. 85 , 446 S.E.2d 749 (1994).

This section permits tenant in common to bring action of trover. Jordan v. Thornton, 7 Ga. 517 (1849); Howard v. Snelling & Snelling, 28 Ga. 469 (1859).

Action by highway department for destruction of bridge. - The State Highway Department (now Department of Transportation), holding bridge in trust for public as part of system of roads under its jurisdiction could be considered a bailee, and was entitled to bring the action for the allegedly negligent destruction of the bridge. State Hwy. Dep't v. Florence, 73 Ga. App. 852 , 38 S.E.2d 628 (1946).

To maintain action for the use of another, there must be a legal right of action in the party bringing the action. King v. Prince, 89 Ga. App. 588 , 80 S.E.2d 222 (1954).

If automobile owner has been fully compensated for damage to the owner's automobile by payment by insurer of damages less deductible amount and by payment by other party to the collision of the deductible amount, the owner has no cause of action against the other party and may not maintain suit in the owner's name. King v. Prince, 89 Ga. App. 588 , 80 S.E.2d 222 (1954).

Insurance company cannot maintain action for destruction of property covered in part by its policy in the absence of an assignment. Atlanta Cadillac Co. v. Manley, 29 Ga. App. 522 , 116 S.E. 35 (1923).

Subsequent vendees having no legal or equitable interest in property at time alleged negligent act occurred are not parties to tort action. Barber v. Adams, 145 Ga. App. 627 , 244 S.E.2d 149 (1978).

Limited rights of subsequent owners. - Purchaser who paid seller's draft for price of cotton after it was burned in carrier's possession cannot sue the carrier. Delgado Mills v. Georgia R.R. & Banking Co., 144 Ga. 175 , 86 S.E. 550 (1915); Pee Dee Mfg. Co. v. Georgia R.R. & Banking Co., 144 Ga. 176 , 86 S.E. 551 (1915).

Complaint for damage to realty brought by owner against tenant was properly nonsuited (dismissed) since the plaintiff was neither the owner of the property nor the landlord during most of the period when the damages were inflicted and there was no evidence from which the jury might reasonably infer that any ascertainable part of the damage was inflicted after plaintiff became the landlord and partial owner. Martin v. Medlin, 83 Ga. App. 589 , 64 S.E.2d 73 (1951).

Owner was not entitled to recover mesne profits for period prior to time the owner acquired title. Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

Trover by one who had parted with title. - When the plaintiff parted with title to property prior to bringing trover action, nonsuit (involuntary dismissal) was proper. Dunlap-Huckabee Auto Co. v. Central Ga. Automotive Co., 31 Ga. App. 617 , 122 S.E. 69 , cert. denied, 31 Ga. App. 811 , 122 S.E. 260 (1924).

Tortious agent and corporation for whom agent was acting when tort was committed could be sued in same action jointly. Coffer v. Bradshaw, 46 Ga. App. 143 , 167 S.E. 119 (1932).

Tort action against wife and husband, her agent. - When husband, as agent of wife, took out a dispossessory warrant to evict a tenant, tenant may join both in subsequent tort action connected therewith. Smith v. Eubanks & Hill, 72 Ga. 280 (1884).

On proof of conspiracy, all the conspirators are liable for the damage done. Woodruff v. Hughes, 2 Ga. App. 361 , 58 S.E. 551 (1907).

Parties in trover action cannot be substituted by amendment. Willis v. Burch, 116 Ga. 374 , 42 S.E. 718 (1902).

Action improperly brought against county commissioners cannot be amended by making the county a party or by changing action into one against commissioners as individuals. Arnett v. Board of Comm'rs, 75 Ga. 782 (1885).

Venue of trover action against joint defendants. - Trover action alleging that named defendants have possession of described articles of personal property to which plaintiff claims title which they refuse to deliver to plaintiff charges defendants jointly with tortious act of conversion, and hence they may be sued together in county where any of them resides. Screven Oil Mill v. Crosby, 94 Ga. App. 238 , 94 S.E.2d 146 (1956).

Tort action failed for lack of ownership interest. - State court, as a matter of law, properly entered summary judgment for amusement park owner for lack of an ownership interest in the property at the time of the alleged sexual molestation of a minor on the roller coaster as, under O.C.G.A. § 9-2-21(b) , an action in tort had to be brought against the party committing the injury, either personally, by the party's servant, or an agent in the party's employ. Rice v. Six Flags Over Ga., LLC, 257 Ga. App. 864 , 572 S.E.2d 322 (2002).

Party without involvement in business not proper party. - In a personal injury case in which a hotel moved for summary judgment, it was not a proper party under O.C.G.A. § 9-2-21(b) . The hotel demonstrated that the hotel did not own, manage, or otherwise have any participation or involvement with the hotel in question. Vidal v. Otis Elevator Co., F. Supp. 2d (N.D. Ga. Apr. 20, 2012).

Cited in Mason v. Hamby & Toomer, 6 Ga. App. 131 , 64 S.E. 569 (1909); Louisville & N.R.R. v. Ramsay, 137 Ga. 573 , 73 S.E. 847 , 1913B Ann. Cas. 108 (1912); Southern Ry. v. Barrett, Denton & Lynn Co., 141 Ga. 584 , 81 S.E. 863 (1914); Sullivan v. Curling, 149 Ga. 96 , 99 S.E. 533 , 5 A.L.R. 124 (1919); Gulf States Lumber Co. v. Citizens' First Nat'l Bank, 30 Ga. App. 709 , 119 S.E. 426 (1923); Webb v. Carpenter, 168 Ga. 398 , 148 S.E. 80 (1929); Feeney v. Decatur Developing Co., 47 Ga. App. 353 , 170 S.E. 518 (1933); Bowman v. Chapman, 179 Ga. 49 , 175 S.E. 241 (1934); Maynard v. Pratt, 181 Ga. 74 , 181 S.E. 579 (1935); Dale Elec. Co. v. Thurston, 82 Ga. App. 516 , 61 S.E.2d 584 (1950); Russell v. City of Rome, 98 Ga. App. 653 , 106 S.E.2d 339 (1958); Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747 , 266 S.E.2d 531 (1980); Buchanan v. Georgia Boy Pest Control Co., 161 Ga. App. 301 , 287 S.E.2d 752 (1982); Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31 , 299 S.E.2d 76 (1983); Gwinnett Hosp. Sys. v. Massey, 220 Ga. App. 334 , 469 S.E.2d 729 (1996).

RESEARCH REFERENCES

Am. Jur. 2d. - 59 Am. Jur. 2d, Parties, §§ 33, 157 et seq.

C.J.S. - 67A C.J.S., Parties, §§ 9 et seq., 52, 58, 65, 66.

ALR. - Right of husband and wife to maintain joint action for wrongs directly affecting both arising from same act, 25 A.L.R. 743 .

Jurisdiction of action at law for damages for tort concerning real property in another state or country, 42 A.L.R. 196 ; 30 A.L.R.2d 1219.

Liability of employer forbidding employees to trade or associate with another, 52 A.L.R. 1028 .

Actions at law between partners and partnerships, 58 A.L.R. 621 ; 168 A.L.R. 1088 .

Right under or in view of statute to join in tort action at law parties who are severally but not jointly liable to plaintiff, 94 A.L.R. 539 .

Suits and remedies against alien enemies, 152 A.L.R. 1451 ; 153 A.L.R. 1419 ; 155 A.L.R. 1451 ; 156 A.L.R. 1448 ; 157 A.L.R. 1449 .

Breach of assumed duty to inspect property as ground of liability for damage or injury to third person, 6 A.L.R.2d 284.

Conflict of laws as to right of injured person to maintain direct action against tort-feasor's automobile liability insurer, 16 A.L.R.2d 881.

What rights of action in tort in favor of a bankrupt vest in his trustee in bankruptcy under § 70(a) of the former Bankruptcy Act (11 U.S.C. § 110(a)), 66 A.L.R.2d 1217.

Liability of real estate broker for interference with contract between vendor and another real estate broker, 34 A.L.R.3d 720.

Surveyor's liability for mistake in, or misrepresentation as to accuracy of, survey of real property, 35 A.L.R.3d 504.

Death action by or in favor of parent against unemancipated child, 62 A.L.R.3d 1299.

Right in absence of express statutory authorization, of one convicted of crime and imprisoned or paroled, to prosecute civil action, 74 A.L.R.3d 680.

Statute of limitations: running of statute of limitations on products liability claim against manufacturer as affected by plaintiff's lack of knowledge of defect allegedly causing personal injury or disease, 91 A.L.R.3d 991.

Breach of assumed duty to inspect property as ground for liability to third party, 13 A.L.R.5th 289.

9-2-22. Joinder of defendants in action for deficiencies in construction.

In any action arising out of alleged deficiencies in the construction of improvements on real property, the party plaintiff may join in one action, as parties defendants, all parties who allegedly contributed in the construction of the improvements as well as all bonding companies who bonded the performance of the parties defendant.

(Code 1933, § 3-110.1, enacted by Ga. L. 1964, p. 140, § 1.)

JUDICIAL DECISIONS

Cited in I. Perlis & Sons v. Peacock Constr. Co., 222 Ga. 723 , 152 S.E.2d 390 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 59 Am. Jur. 2d, Parties, §§ 124 et seq., 144, 152, 157 et seq.

C.J.S. - 1A C.J.S., Actions, §§ 135, 149, 151; 67A C.J.S., Parties, § 41 et seq.

ALR. - Purchase of mortgaged property by mortgagee as affecting liability on bond conditioned for improvement of property or other obligation collateral to mortgage and mortgage debt, 82 A.L.R. 762 .

9-2-23. Separate action by tenant in common.

A tenant in common may bring an action separately for his own interest, and the judgment in such case shall affect only himself.

(Orig. Code 1863, § 3183; Code 1868, § 3194; Code 1873, § 3259; Code 1882, § 3259; Civil Code 1895, § 4941; Civil Code 1910, § 5518; Code 1933, § 3-111.)

Cross references. - Tenancy in common generally, § 44-6-120 et seq.

JUDICIAL DECISIONS

In action ensuing from filing of distress warrant, it was immaterial whether premises were leased to defendant lessee by lessors separately or as a partnership, since in either event lessors would be tenants in common of the property and thus subject to the express provisions of this section. Wisteria Garden Restaurant, Inc. v. Tuntas Co., 114 Ga. App. 165 , 150 S.E.2d 460 (1966).

Action by assignee of tenant in common. - Under agreement between two former partners, in course of dissolution of partnership and division of assets remaining after payment of all indebtedness, that claim for personalty against third party would be divided equally between them, partners thereafter became tenants in common, insofar as their claim for such personalty was concerned, and it was therefore permissible for assignee of claim of one of such cotenants to sue in trover for the recovery of one-half undivided share of such property without joining the other cotenant and without suing in the name of the dissolved partnership. Graham v. Raines, 83 Ga. App. 581 , 64 S.E.2d 98 (1951).

Separate action by tenants in common. - Since deed grantor's action to set aside and cancel warranty deed that the deed grantor conveyed to the deed grantees was severable as to the deed grantor's interest in the property that the deed grantor held as a joint tenant with the deed grantor's spouse, the deed grantor could not toll the applicable statute of limitations for bringing the deed grantor's action as the deed grantor could not use the spouse's disability to toll the action that the deed grantor could have brought as to the deed grantor's own interest in the property. Pivic v. Pittard, 258 Ga. App. 675 , 575 S.E.2d 4 (2002).

Cited in Butler v. Prudden, 182 Ga. 189 , 185 S.E. 102 (1936); Keen v. Rodgers, 203 Ga. 578 , 47 S.E.2d 567 (1948); Pugh v. Moore, 207 Ga. 453 , 62 S.E.2d 153 (1950); Kitchens v. Jefferson County, 85 Ga. App. 902 , 70 S.E.2d 527 (1952); Perkins v. First Nat'l Bank, 221 Ga. 82 , 143 S.E.2d 474 (1965); Carroll v. Morrison, 116 Ga. App. 575 , 158 S.E.2d 480 (1967); Paine v. Thomas, 228 Ga. 519 , 186 S.E.2d 737 (1972).

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Cotenancy and Joint Ownership, §§ 32 et seq., 100 et seq. 59 Am. Jur. 2d, Parties, § 128 et seq.

C.J.S. - 86 C.J.S., Tenancy in Common, § 152 et seq. 67A C.J.S., Parties, § 41 et seq.

ALR. - Homestead right of cotenant as affecting partition, 140 A.L.R. 1170 .

Capacity of cotenant to maintain suit to set aside conveyance of interest of another cotenant because of fraud, undue influence, or incompetency, 7 A.L.R.2d 1317.

9-2-24. Action by unincorporated association.

An action may be maintained by and in the name of any unincorporated organization or association.

(Ga. L. 1959, p. 44, § 1.)

Cross references. - Applicability of Code section to professional associations, § 14-10-17 .

JUDICIAL DECISIONS

Capacity to bring suit. - Unincorporated association of owners of property in a residential community had the capacity to bring an action against the operator of community recreational amenities and property owners' association; overruling Embassy Row Assoc. v. Rawlins, 162 Ga. App. 669 , 292 S.E.2d 541 (1982). Fairfield Plantation Action Comm., Inc. v. Plantation Equity Group, Inc., 215 Ga. App. 746 , 452 S.E.2d 147 (1994).

Cited in Smith v. UMW, 180 F. Supp. 796 (M.D. Ga. 1958); Massey v. Curry, 216 Ga. 22 , 114 S.E.2d 416 (1960); Bethel Farm Bureau v. Anderson, 217 Ga. 529 , 123 S.E.2d 754 (1962); Shaw v. Cousins Mtg. & Equity Invs., 142 Ga. App. 773 , 236 S.E.2d 919 (1977); Equitable Life Assurance Soc'y v. Tinsley Mill Village, 249 Ga. 769 , 294 S.E.2d 495 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Business trust is an association, as opposed to a corporation. 1980 Op. Att'y Gen. No. 80-144.

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Associations and Clubs, § 51 et seq. 59 Am. Jur. 2d, Parties, § 413.

16 Am. Jur. Pleading and Practice Forms, Labor and Labor Relations, § 2.

C.J.S. - 7 C.J.S., Associations, § 85 et seq. 67A C.J.S., Parties, § 231.

ALR. - Rights and remedies in respect of membership in, or establishment and maintenance of local post of, American Legion or other veterans' organization, 147 A.L.R. 590 .

Right of labor union, or other organization for protection or promotion of interests of members, to challenge validity of statute or ordinance on behalf of members, 2 A.L.R.2d 917.

Joint venture's capacity to sue, 56 A.L.R.4th 1234.

9-2-25. Action against unincorporated association; service of process; venue; what property bound by judgment.

  1. Actions may be maintained against and in the name of any unincorporated organization or association for any cause of action for or upon which the plaintiff therein may maintain such an action against the members of the organization or association.
  2. Service of process in the action against the organization or association shall be had by service upon any officer or official member of such organization or association, or upon any officer or official member of any branch or local of the organization or association, provided that any such organization or association may file with the Secretary of State a designated officer or agent upon whom service shall be had and his residence address within the state. If the designation is made and filed, service of process shall be had only on the officer or agent designated, if he can be found within the state.
  3. The organization or association shall be suable in any cause of action. The action may be maintained in any county where the organization or association does business or has in existence a branch or local organization.
  4. Where a judgment in such actions is rendered in favor of the plaintiff against the organizations or associations, the property of the organization or association shall be liable to the satisfaction of the judgment. No such judgment shall be enforced against the individual property of any member of an unincorporated association, unless the member has personally participated in the transaction for which the action was instituted and has been served with process as provided by law. (Ga. L. 1959, p. 44, §§ 2-5.) Applicability of Code section to professional associations, § 14-10-17 .

Cross references. - Prosecution of actions against less than all copartners, § 9-2-26 .

JUDICIAL DECISIONS

This section is not unconstitutional as contrary to former Ga. Const. 1976, Art. VI, Sec. XIV, Para. VI (see now Ga. Const. 1983, Art. VI, Sec. II, Para. VI). Drake v. Chesser, 230 Ga. 148 , 196 S.E.2d 137 (1973).

Purpose of this section is to avoid having to locate a group of individuals in order to file suit in the county where each resides, and to fix a venue in order to bring an action against the association as a whole. Drake v. Chesser, 230 Ga. 148 , 196 S.E.2d 137 (1973).

Term "official member," as used in this section, means a person who is clothed with some official duty or status to perform for the association or organization, other than that imposed upon an officer and more than that imposed upon a person solely because a person is listed as a member on the official rolls of the association or organization. Sheet Metal Workers Int'l Ass'n v. Carter, 241 Ga. 220 , 244 S.E.2d 860 (1978).

This section does not and cannot include a limited partnership. Farmers Hdwe. of Athens, Inc. v. L.A. Properties, Ltd., 136 Ga. App. 180 , 220 S.E.2d 465 (1975).

Unincorporated associations may sue and be sued. Rogers v. Lindsey St. Baptist Church, 104 Ga. App. 487 , 121 S.E.2d 926 (1961).

Service absent designation of agent with Secretary of State. - When designated officer or agent upon whom service may be had has not been filed with Secretary of State, an unincorporated organization or association may be served by serving any officer or official member of any branch or local of the organization or association. American Fed'n of State, County & Mun. Employees v. Rowe, 121 Ga. App. 99 , 172 S.E.2d 866 (1970).

Valid service under this section sufficient. - If valid service was obtained under this section, use of any other method of service is immaterial. American Fed'n of State, County & Mun. Employees v. Rowe, 121 Ga. App. 99 , 172 S.E.2d 866 (1970).

Suits by members maintainable. - Member of an unincorporated association could sue that association. Piney Grove Baptist Church v. Goss, 255 Ga. App. 380 , 565 S.E.2d 569 (2002).

Order voiding county's appeal and directing high school association to award baseball victory to another county was in error because the high school association breached its own appeal procedures when it allowed the county to file an untimely appeal without sufficient time for the other county to respond and failed to submit the appeal to the Appeal Board for presentation of evidence, as required in governing White Book. Ga. High Sch. Ass'n v. Charlton County Sch. Dist., 349 Ga. App. 309 , 826 S.E.2d 172 (2019).

Cited in Smith v. UMW, 180 F. Supp. 796 (M.D. Ga. 1958); Smith v. United Constr. Workers, 106 Ga. App. 87 , 126 S.E.2d 307 (1962); Edwards v. United Stone & Allied Prods. Workers of Am., 220 Ga. 183 , 137 S.E.2d 632 (1964); American Fed'n of State, County & Mun. Employees v. Rowe, 121 Ga. App. 99 , 172 S.E.2d 866 (1970); Stein Printing Co. v. Atlanta Typographical Union 48, 329 F. Supp. 754 (N.D. Ga. 1971); Drake v. Chesser, 230 Ga. 148 , 196 S.E.2d 137 (1973); Freeman v. Motor Convoy, Inc., 409 F. Supp. 1100 (N.D. Ga. 1975); Ramey v. Hospital Auth., 218 Ga. App. 618 , 462 S.E.2d 787 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Associations and Clubs, §§ 46, 51 et seq. 59 Am. Jur. 2d, Parties, §§ 311, 413. 77 Am. Jur. 2d, Venue, § 5.

C.J.S. - 7 C.J.S., Associations, § 92 et seq. 67A C.J.S., Parties, § 54.

ALR. - Power to exact license fees or impose a penalty for benefit of private individual or corporation, 13 A.L.R. 828 ; 19 A.L.R. 205 .

Responsibility of agricultural society for tort, 52 A.L.R. 1400 .

Unincorporated association issuing insurance contract as subject to suit as entity in the name in which it contracts, 88 A.L.R. 164 .

Right of one who makes agreement with an unincorporated association to avoid or defend against agreement because association has no legal existence, 121 A.L.R. 632 .

Mandamus against unincorporated association or its officers, 137 A.L.R. 311 .

Privilege against self-incrimination as available to member or officer of unincorporated association as regards its books or papers, 152 A.L.R. 1208 .

Recovery by member from unincorporated association for injuries inflicted by tort of fellow member, 14 A.L.R.2d 473.

Power and capacity of members of unincorporated association, lodge, society, or club to convey, transfer, or encumber association property, 15 A.L.R.2d 1451.

Suability of individual members of unincorporated association as affected by statute or rule permitting association to be sued as an entity, 92 A.L.R.2d 499.

Liability of member of unincorporated association for tortious acts of association's nonmember agent or employee, 62 A.L.R.3d 1165.

9-2-26. Prosecution of action against less than all joint contractors or copartners.

When two or more joint contractors, joint and several contractors, or copartners are defendants in the same action and service is perfected on one or more of the contractors or copartners and the officer serving the writ or process returns that the rest are not to be found, the plaintiff may proceed to judgment and execution against the defendants served with process in the same manner as if they were the sole defendants. If any of the defendants die pending the action, his representative may be made a party and the case may proceed to judgment and execution as in other cases against the representatives of deceased persons.

(Laws 1820, Cobb's 1851 Digest, p. 485; Code 1863, § 3263; Code 1868, § 3274; Code 1873, § 3350; Code 1882, § 3350; Civil Code 1895, § 5009; Civil Code 1910, § 5591; Code 1933, § 3-301.)

JUDICIAL DECISIONS

This section changed the common law. Ross v. Executors of Everett, 12 Ga. 30 (1852); Raney v. McRae, 14 Ga. 589 , 60 Am. Dec. 660 (1854).

Under common law, a judgment was regarded as an entity which must stand or fall in toto, but in 1820 the legislature modified this rule with reference to actions against joint contractors; this statute was codified in this section. Crowe v. Fisher, 104 Ga. App. 725 , 122 S.E.2d 755 (1961).

This section is an exception to general rule that a recovery against a joint obligor on a joint contract merges the cause of action. Almand v. Hathcock, 140 Ga. 26 , 78 S.E. 345 (1913).

Dismissal of parties on joint contract was regulated by former Code 1863, §§ 3261, 3262, 3263 and 3264 (see now O.C.G.A. §§ 9-2-26 , 9-2-27 , and 9-13-59 ). Sanders v. Etcherson, 36 Ga. 404 (1867); Stanford & Golden v. Bradford, 45 Ga. 97 (1872); Lippincott & Co. v. Behre, 122 Ga. 543 , 50 S.E. 467 (1905).

This section permits joint provisors in same county to be joined. Booher v. Worrill, 43 Ga. 587 (1871).

Joint contractor who has been served is bound by judgment. Kitchens v. Hutchins, 44 Ga. 620 (1872).

Joint executors are joint contractors. Wynn v. Booker, 26 Ga. 553 (1858).

Verdict against surety on promissory note may be had when principal was not found in the county. Vandiver v. Third Nat'l Bank, 15 Ga. App. 433 , 83 S.E. 673 (1914).

Effect of judgment against partnership. - Judgment recovered in action against partnership binds both the partnership assets and the individual assets of the partners who were served; it need not be rendered expressly against the individual members who were served in order to bind their individual assets. Ragan v. Smith, 178 Ga. 774 , 174 S.E. 622 (1934).

Liability of unserved partner is not merged. Ells v. Bone, 71 Ga. 466 (1883).

Cited in Graham v. Marks & Co., 95 Ga. 38 , 21 S.E. 986 (1894); Warren Brick Co. v. Lagarde Lime & Stone Co., 12 Ga. App. 58 , 76 S.E. 761 (1912); McConnon & Co. v. Martin, 33 Ga. App. 392 , 126 S.E. 272 (1925); Ragan v. Smith, 49 Ga. App. 118 , 174 S.E. 180 (1934); Dillingham v. Cantrell, 54 Ga. App. 622 , 188 S.E. 605 (1936); Winder v. Winder, 218 Ga. 409 , 128 S.E.2d 56 (1962).

RESEARCH REFERENCES

Am. Jur. 2d. - 59 Am. Jur. 2d, Parties, §§ 128 et seq., 149 et seq.

C.J.S. - 67A C.J.S., Parties, §§ 55, 67 et seq., 76, 78, 86 et seq.

ALR. - Judgment against less than all parties to contract as bar to action against others, 1 A.L.R. 1601 .

Actions at law between partners and partnerships, 21 A.L.R. 21 .

Release of one of several joint or joint and several contract obligors as affecting liability of other obligors, 53 A.L.R. 1420 .

Payment by one of two or more joint and several debtors as suspending or tolling limitation, 71 A.L.R. 375 ; 74 A.L.R.2d 1287.

Right to judgment, levy, or lien against individual in action under statute permitting persons associated in business under a common name to be sued in that name, 100 A.L.R. 997 .

Validity of exception for specific kind of tort action in survival statute, 77 A.L.R.3d 1349.

9-2-27. Action against representative of joint obligor.

Where any person is in possession, in his own right or in any other capacity, of any note, bill, bond, or other obligation in writing, signed by two or more persons, and one or more of the persons whose names are so signed dies before the payment of the money or the compliance with the conditions of such bond or obligation in writing, the person holding the bill, bond, note, or other obligation in writing shall not be compelled to bring an action against the survivors alone, but may at his discretion bring an action against (1) the survivor or survivors, (2) the representative or representatives of the deceased person or persons, or (3) the survivor or survivors and the representative or representatives of the deceased person or persons in the same action. However, nothing contained in this Code section shall authorize the bringing of an action against the representative of any estate until six months after the probate of the will or the granting of letters of administration on the estate or estates. This Code section shall be so construed as to embrace debts against copartners as well as debts against joint or joint and several contractors.

(Laws 1818, Cobb's 1851 Digest, p. 483; Ga. L. 1858, p. 86, § 1; Code 1863, §§ 3261, 3262; Code 1868, §§ 3272, 3273; Code 1873, §§ 3348, 3349; Code 1882, §§ 3348, 3349; Civil Code 1895, §§ 5014, 5015; Civil Code 1910, §§ 5596, 5597; Code 1933, § 3-305; Ga. L. 1981; p. 852, § 1; Ga. L. 1982, p. 3, § 9.)

Editor's notes. - Ga. L. 1981, p. 852, § 1, amended this Code section so as to reduce the period of exemption from suit for representatives of joint obligors from 12 months to 6 months and to conform this Code section to Code Section 53-7-102, which was similarly amended by Ga. L. 1971, p. 433, § 2. Section 2 of this Act stated that the Act was not to be construed to imply that the 1971 Act that amended Code Section 53-7-102 did not impliedly repeal this Code section to the extent of any conflict.

Law reviews. - For survey article citing development in Georgia wills, trusts, and administration of estates law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 307 (1981). For article, "Partner v. Partner: Actions at Law for Wrongdoing in a Partnership," see 9 Ga. St. U.L. Rev. 905 (1993).

JUDICIAL DECISIONS

This section is applicable to partnership debts. Rodgers v. Rushin, 30 Ga. 934 (1860); Garrard v. Dawson, 49 Ga. 434 (1873); Lively v. Ward & McCullough, 23 Ga. App. 805 , 99 S.E. 632 (1919).

This section applies to action on sheriff's bond. Morrison v. Slaton, 148 Ga. 294 , 96 S.E. 422 (1918); Cone v. American Sur. Co., 29 Ga. App. 676 , 116 S.E. 648 (1923).

This section applies to action on bond of judge of probate court. State v. Henderson, 120 Ga. 780 , 48 S.E. 334 (1904).

This section does not apply to action on open account. Anderson v. Pollard & Co., 62 Ga. 46 (1878).

Representative unlawfully in possession of property not shielded by section. - Provision that action against representative of estate may not be brought until 12 months (now six months) after probate or grant of letters of administration applies to actions seeking recovery on some claim against the estate of the deceased; it affords no shield for one who, though the representative of a deceased person, wrongfully and illegally seizes and holds property that does not belong to the estate. Kinney v. Robinson, 181 Ga. 837 , 184 S.E. 616 (1936).

When a surviving member of a partnership brought an action against the executor of the estate of a former partner, personally and in the member's representative capacity, alleging that the defendant had illegally assumed possession of partnership assets and that the assets were necessary to wind up the affairs of the partnership which was alleged to be indebted to plaintiff in an uncertain sum, and praying for a receiver, an accounting, and other relief, this section, providing that action against representative of estate may not be brought until 12 months (now six months) after the probate of the will or granting of letters of administration, had no application. Kinney v. Robinson, 181 Ga. 837 , 184 S.E. 616 (1936).

Action against survivor, representative, or both. - Under this section, plaintiff is expressly authorized, at the plaintiff's discretion, to bring an action against the survivor, against the representative, or against both in the same action. Leonard v. Collier, 53 Ga. 387 (1874); Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275 , 65 S.E. 35 (1909).

Defendant may be sued in same action in two characters, as executor of maker of promissory note and as individual endorser. Roark v. Turner, 29 Ga. 455 (1859).

Plaintiff was not bound to join representatives of deceased directors in action against the survivor. Hargroves v. Chambers, 30 Ga. 580 (1860).

Action brought against surviving partner and administrator of deceased partner, under this section, could not be discontinued as to the former. Pullen v. Whitfield, 55 Ga. 174 (1875); McNaught & Co. v. Bostick, 71 Ga. 782 (1883).

Administrator could not be joined after judgment. - After the plaintiff elected to proceed against survivors and took judgment against them, the plaintiff could not afterwards make the administrator of the deceased a party. Harrell v. Park, 32 Ga. 555 (1861).

Cited in Sanders v. Etcherson, 36 Ga. 404 (1867); Mills v. Scott, 99 U.S. 25, 25 L. Ed. 294 (1879); Irvine v. Irvine, 145 Ga. 660 , 89 S.E. 746 (1916); Lane v. Tarver, 153 Ga. 570 , 113 S.E. 452 (1922).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival § 89. 59 Am. Jur. 2d, Parties, § 149 et seq.

C.J.S. - 1 C.J.S., Abatement and Revival, §§ 127, 128, 133. 67A C.J.S., Parties, §§ 76, 78.

ALR. - Actions at law between partners and partnerships, 21 A.L.R. 21 .

Liability of surety as affected by running of limitation in favor of principal or cosurety, 122 A.L.R. 204 .

Rendition of services, transfer of property, or similar benefits, other than money or obligation to pay money, as part payment tolling, or removing bar of, statute of limitations, 139 A.L.R. 1378 .

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

9-2-28. Effect of action by minor alone.

An action commenced and prosecuted by an infant alone shall not be void. Although the action may be defective in wanting a guardian or next friend, the defect shall be amendable before verdict and cured by verdict.

(Orig. Code 1863, § 3187; Code 1868, § 3198; Code 1873, § 3263; Code 1882, § 3263; Civil Code 1895, § 4947; Civil Code 1910, § 5524; Code 1933, § 3-115; Ga. L. 1959, p. 79, § 1.)

Cross references. - Age of legal majority, § 39-1-1 .

Law reviews. - For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

JUDICIAL DECISIONS

Section procedural in nature. - This section deals with ability of infants to commence action with or without appointment of guardian or next friend; it is procedural in nature. Jones v. Hartford Accident & Indem. Co., 132 Ga. App. 130 , 207 S.E.2d 613 (1974).

There is no substantial difference between prochein ami (next friend) and guardian ad litem. Sharp v. Findley, 59 Ga. 722 (1877).

Next friend and guardian ad litem are officers of court. - Minor may be a petitioner by next friend, which is equivalent to being represented by a guardian ad litem, and in either event the next friend or guardian ad litem is an officer of the court for the special protection of the minor. Sanders v. Hinton, 171 Ga. 702 , 156 S.E. 812 (1931).

There is no substantial difference between a prochein ami (next friend) and a guardian ad litem; the former denomination is usually applied when the representation is for an infant plaintiff and the latter when it is for an infant defendant, but in either case, the representative of the infant is regarded as an officer of the court. Gentle v. Georgia Power Co., 179 Ga. 853 , 177 S.E. 690 (1934).

Infant's nearest relation should be next friend. Gentle v. Georgia Power Co., 179 Ga. 853 , 177 S.E. 690 (1934).

Appointment of next friend is primarily for the court, but usually the infant in the infant's petition names the next friend and the court by allowing the action to proceed ratifies the appointment. Gentle v. Georgia Power Co., 179 Ga. 853 , 177 S.E. 690 (1934).

Infant who prosecutes action is bound by verdict rendered even if no guardian ad litem was appointed. Evans v. Collier, 79 Ga. 319 , 4 S.E. 266 (1887).

Applicability of section to irregular or void appointment. - If an irregular or void appointment is made, the rule of this section applies. White v. Rowland, 67 Ga. 546 , 44 Am. R. 731 (1881).

Substance of action determinative. - Action by father suing for the use of minor son is in substance an action by the son, and while the more regular form is for the minor to sue by next friend, it is the substance of the action and not its technical form that must determine its true character. Vale Royal Mfg. Co. v. Bradley, 8 Ga. App. 483 , 70 S.E. 36 (1911).

Action does not abate when minor comes of age. - When action is brought by infant through next friend, and infant comes of age before the case is finally disposed of, the action does not abate; the action may proceed in the infant's name, and the next friend will no longer be a necessary party. Gentle v. Georgia Power Co., 179 Ga. 853 , 177 S.E. 690 (1934).

Identity of action brought by next friend and action by minor on coming of age. - Action in the name of a minor by next friend is substantially an action by the minor, and if the minor on arriving at majority dismisses such action, an action subsequently brought by the minor in the minor's own right is as to the party plaintiff substantially identical with the former action; when it is brought against the same defendant and upon the same cause of action, the suits will be treated as identical. Young v. Western & A.R.R., 43 Ga. App. 257 , 158 S.E. 464 (1931).

Amendment of pleading to name guardian. - Name of guardian or next friend should be added by amendment to petition, in order to prevent a nonsuit (involuntary dismissal) after timely objection thereto. Vale Royal Mfg. Co. v. Bradley, 8 Ga. App. 483 , 70 S.E. 36 (1911); Mathews v. Fields, 12 Ga. App. 225 , 77 S.E. 11 (1913).

Petition brought by minor may be amended to proceed in the name of a person who is sui juris as next friend. Cook v. English, 85 Ga. App. 739 , 70 S.E.2d 86 (1952).

Amendment in appellate court. - Since two minor appellants were not represented by a guardian ad litem or next friend at the time bill of exceptions was presented and certified (pursuant to former appellate procedure), the bill of exceptions was amendable in the Supreme Court by adding the names of an adult as next friend for such minors as a party appellant. Cannon v. Whiddon, 194 Ga. 417 , 21 S.E.2d 850 (1942).

Failure to act through next friend cured by verdict. - Minor must bring an action through next friend, but when a minor acts personally and there is no objection to the minor's proceeding alone, the defect is cured by the verdict and the judgment is not void. Kite v. Brooks, 51 Ga. App. 531 , 181 S.E. 107 (1935).

Failure to make infant a party not cured by verdict. - Proceeding by administrator praying for direction as to distribution of estate could not be treated as an action commenced and prosecuted by an infant alone, nor could failure to comply with statutory requirements as to properly making infant a party be taken as a defect cured by verdict. Brown v. Anderson, 186 Ga. 220 , 197 S.E. 761 (1938).

Appointment of guardian on plaintiff's motion. - If infant fails or refuses to appear and move for appointment of guardian, court, at the instance of the plaintiff, will appoint one for the infant. Oliver v. McDuffie, 28 Ga. 522 (1859); Wood v. Haines, 72 Ga. 189 (1883).

Action not dismissible when brought by next friend rather than guardian. - Action in the name of minor by next friend is not subject to general demurrer (motion to dismiss) because te action was not brought by a guardian, even if the minor had a guardian at the time the action was filed. Pardue Medicine Co. v. Pardue, 194 Ga. 516 , 22 S.E.2d 143 (1942).

Guardian ad litem unnecessary when next friend acts. - When infant plaintiff appears by next friend, formal order of court appointing guardian ad litem is not necessary to give the next friend standing therein. Ross v. Battle, 113 Ga. 742 , 39 S.E. 287 (1901).

Unless minor's interests would not be protected. - When minor institutes litigation by next friend, there is no legal necessity to appoint guardian ad litem, unless it appears to the court that the next friend was not a suitable person or for some other reason the interests of the minor would not be properly protected. Sanders v. Hinton, 171 Ga. 702 , 156 S.E. 812 (1931).

Tort action properly brought by guardian ad litem or next friend. - When an action is brought by a minor for a tort committed upon the minor, the proper method is for the petition to be brought in the name of the minor, by the minor's guardian ad litem or next friend. Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369 , 170 S.E. 549 (1933).

Minors may intervene in action instituted by trustee acting for their benefit, without appointment of guardian ad litem. Watson v. Equitable Mtg. Co., 132 Ga. 154 , 63 S.E. 912 (1909).

Minor intervenor in foreclosure proceedings bound. - Minor who intervenes by filing counter-affidavit in foreclosure proceedings to subject minor's automobile to a lien for repairs was bound by verdict rendered. Royal v. Grant, 5 Ga. App. 643 , 63 S.E. 708 (1909); Sams v. Covington Buggy Co., 10 Ga. App. 191 , 73 S.E. 18 (1911).

Infant may maintain cross action or plea of recoupment in the infant's own name. Levy v. McPhail, 33 Ga. App. 784 , 127 S.E. 793 (1925).

Divorce and alimony petition brought by minor wife. - Infant wife of sufficient age to enter into marriage contract may maintain action to dissolve marriage relation and for alimony. Bentley v. Bentley, 149 Ga. 707 , 102 S.E. 21 , 17 A.L.R. 896 (1920).

Action brought in name of administrator of mother's estate for use of children seeking recovery for wrongful death of father was in substance an action by the children, and a proper construction of the petition was that it was brought for the minors by their next friend, plaintiff administrator; hence, claim of defendant that plaintiff was not the proper plaintiff was without merit. Keenan Welding Supplies Co. v. Bronner, 100 Ga. App. 400 , 111 S.E.2d 140 (1959).

Accounting proceeding properly maintained. - Action by guardian acting in behalf of minor by reason of disqualification of trustee who might otherwise have acted as testamentary guardian, seeking settlement of accounts with executrix, is properly maintained. Perdue v. McKenzie, 194 Ga. 356 , 21 S.E.2d 705 (1942).

This section permits infant, on becoming of age, to drop trustee's name where latter died during pendency of action, and to provide a next friend for the minor party. Blalock v. Newhill, 78 Ga. 245 , 1 S.E. 383 (1886).

While special guardian appointed in workers' compensation proceeding to receive compensation for use and benefit of minor claimant was not appointed until time of award, the special guardian's appointment at that time cured the defect and made such guardian a party to the case. Utica Mut. Ins. Co. v. Rolax, 87 Ga. App. 733 , 75 S.E.2d 205 (1953).

Infant is bound by judgment in case brought through next friend, as though the infant were an adult, in the absence of gross laches, fraud, or collusion. Gentle v. Georgia Power Co., 179 Ga. 853 , 177 S.E. 690 (1934).

Substitution of parent as party by amendment, unless, under this section, the parent has come into the action to prosecute infant's right rather than the parent's own right, is improper, but it will stand unless objected to in proper time. Ansley v. Jordan, 61 Ga. 482 (1878); Ross v. Battle, 113 Ga. 742 , 39 S.E. 287 (1901).

Cited in Bartlett v. Batts, 14 Ga. 539 (1854); Alspaugh v. Adams, 80 Ga. 345 , 5 S.E. 496 (1887); Summerour v. Fortson, 174 Ga. 862 , 164 S.E. 809 (1932); Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338 , 183 S.E. 210 (1935); Webb v. General Accident, Fire & Life Ins. Co., 72 Ga. App. 127 , 33 S.E.2d 273 (1945); Jackson v. Sanders, 199 Ga. 222 , 33 S.E.2d 711 (1945); Lewis v. Williams, 78 Ga. App. 494 , 51 S.E.2d 532 (1949); Lowry v. Smith, 103 Ga. App. 601 , 120 S.E.2d 47 (1961); Thomas v. Byrd, 107 Ga. App. 234 , 129 S.E.2d 566 (1963).

RESEARCH REFERENCES

Am. Jur. 2d. - 42 Am. Jur. 2d, Infants, § 149 et seq. 59 Am. Jur. 2d, Parties, §§ 363, 368 et seq., 392.

C.J.S. - 43 C.J.S., Infants, § 312. 67A C.J.S., Parties, § 11.

ALR. - Right of next friend to compensation for services rendered to infant in the litigation, 9 A.L.R. 1537 .

Right of ward to maintain action independent from his general guardian, on contracts or other obligations entered into by the guardian on ward's behalf, 102 A.L.R. 269 .

9-2-29. Plaintiff in penal action.

If no special officer is authorized to be the plaintiff in a penal action, the state, the Governor, the Attorney General, or a prosecuting attorney may be the plaintiff.

(Orig. Code 1863, § 3178; Code 1868, § 3189; Code 1873, § 3254; Code 1882, § 3254; Civil Code 1895, § 4933; Civil Code 1910, § 5510; Code 1933, § 3-103.)

Cross references. - For corresponding provision relating to criminal procedure, § 17-1-2 .

JUDICIAL DECISIONS

When informer may prosecute action. - Qui tam action cannot be brought and prosecuted in name of informer unless a right thus to sue is distinctly given by statute. O'Kelly v. Athens Mfg. Co., 36 Ga. 51 (1867).

Informer has no vested right to forfeiture. - Informer who commences a qui tam action under a penal statute does not acquire thereby a vested right to the forfeiture. Robison v. Beall, 26 Ga. 17 (1858); Hargroves v. Chambers, 30 Ga. 580 (1860).

Cited in Mack v. Westbrook, 148 Ga. 690 , 98 S.E. 339 (1919); Malone v. Clark, 109 Ga. App. 134 , 135 S.E.2d 517 (1964).

RESEARCH REFERENCES

C.J.S. - 1A C.J.S., Actions, §§ 1, 74 et seq., 83. 7A C.J.S., Attorney General, § 65 et seq.

9-2-30. Substitution of plaintiff's spouse or others in action on chose in action assigned as year's support.

When a party plaintiff dies during litigation concerning any chose in action and the chose in action is assigned to the surviving spouse, the surviving spouse and children, or the children only of the decedent as any part of a year's support, the surviving spouse personally or for the use of the surviving spouse and the children, or, in the event of children only, a next friend for the children may be made a party plaintiff upon the same terms and in the same manner that administrators are made parties plaintiff to actions in favor of their intestate, upon the submission by the person to the court of a certified copy of the assignment; and the action shall proceed in the name of the parties so made.

(Ga. L. 1878-79, p. 148, § 1; Code 1882, § 3424a; Civil Code 1895, § 5022; Civil Code 1910, § 5604; Code 1933, § 3-407.)

JUDICIAL DECISIONS

Year's support may include any property right, equitable or legal, present or future interest, which the deceased owned at the time of death. Bennett v. Davis, 201 Ga. 58 , 39 S.E.2d 3 (1946).

If a bond for title has been properly set apart, as a year's support to the widow and children of a decedent, an action cannot be maintained by the administrator to recover it. Winn v. Lunsford, 130 Ga. 436 , 61 S.E. 9 (1908).

Cited in Betts v. Brown, 219 Ga. 782 , 136 S.E.2d 365 (1964).

RESEARCH REFERENCES

C.J.S. - 67A C.J.S., Parties, §§ 76, 77.

ALR. - Right of next friend to compensation for services rendered to infant in the litigation, 9 A.L.R. 1537 .

ARTICLE 3 ABATEMENT

Cross references. - Effect of death or resignation of public officer when action brought against officer in official capacity, § 9-11-25 .

JUDICIAL DECISIONS

Abatement of action at common law is the entire overthrow or destruction of the action resulting from the fact that defendant pleads some matter that defeats the action, either for the time being or permanently; any further enforcement of the cause of action necessitates bringing a new action. Jones v. Doe, 143 Ga. App. 451 , 238 S.E.2d 555 (1977).

9-2-40. No abatement on death of party where cause survives.

No action shall abate by the death of either party, where the cause of action shall in any case survive to or against the legal representatives of the deceased party, either in the same or any other form of action.

(Laws 1799, Cobb's 1851 Digest, p. 472; Code 1863, § 3371; Code 1868, § 3390; Code 1873, § 3438; Code 1882, § 3438; Civil Code 1895, § 5035; Civil Code 1910, § 5617; Code 1933, § 3-501.)

JUDICIAL DECISIONS

Deceased person cannot be a party to legal proceedings. Eubank v. Barber-Colman Co., 115 Ga. App. 217 , 154 S.E.2d 638 (1967); Fuller v. Booth, 118 Ga. App. 685 , 165 S.E.2d 318 (1968).

Death of party suspends action until substitution of representative. - While death of a party does not abate pending action when cause of action survives, nevertheless the effect of the death is to suspend the action as to the decedent until someone is substituted for the decedent as a party to the proceedings. Eubank v. Barber-Colman Co., 115 Ga. App. 217 , 154 S.E.2d 638 (1967); Tarpley v. Hawkins, 144 Ga. App. 598 , 241 S.E.2d 480 (1978).

Only effect of death of party is to suspend action as to decedent until the decedent's legal representative is substituted as a party, assuming a pending action where the cause of action survives. Fuller v. Booth, 118 Ga. App. 685 , 165 S.E.2d 318 (1968).

Further proceedings void until such substitution. - Further proceedings in action suspended due to death of party are void as to the decedent until someone is properly substituted as a party. Eubank v. Barber-Colman Co., 115 Ga. App. 217 , 154 S.E.2d 638 (1967).

Effect of substitution of administrator. - In action by guardian to cancel deed executed by ward after appointment of guardian for the ward's person and property, when the ward died pending the action, an amendment substituting administrator of the ward's estate as party plaintiff did not introduce a new party plaintiff nor change the cause of action. Chaffin v. Chaffin, 207 Ga. 36 , 59 S.E.2d 911 (1950).

Substitution of personal representatives. - Substitution of personal representatives of decedent pursuant to O.C.G.A. § 9-11-25(a) in an action involving decedent's negligence claim against the defendant did not result in the addition of a new party or a new cause of action to the litigation. Pope v. GoodGame, 223 Ga. App. 672 , 478 S.E.2d 636 (1996).

Administrator proper party to pursue civil rights claims. - In a declaratory judgment case and pursuant to O.C.G.A. §§ 9-2-40 and 9-2-41 , an administrator had standing and was the proper party to pursue any surviving 42 U.S.C. §§ 1981 and 1988 civil rights claims on behalf of the decedent's estate. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324 (N.D. Ga. Mar. 12, 2007).

Cited in Perry v. Allen, 239 F.2d 107 (5th Cir. 1956); Kilgo v. Bowman Transp., Inc., 87 F.R.D. 26 (N.D. Ga. 1980); Allen v. City of Moultrie, 162 Ga. App. 188 , 290 S.E.2d 529 (1982); Omark Indus., Inc. v. Alewine, 164 Ga. App. 397 , 298 S.E.2d 259 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, § 47 et seq.

1 Am. Jur. Pleading and Practice Forms, Abatement, Revival, and Stay, § 2.

C.J.S. - 1 C.J.S., Abatement and Revival, § 114 et seq.

ALR. - Does right of grantor to maintain a suit in equity to set aside his conveyance for cause survive to his heir, 2 A.L.R. 431 ; 33 A.L.R. 51 .

Survival of action or cause of action for wrongful death against representative of wrongdoer, 61 A.L.R. 830 ; 171 A.L.R. 1392 .

Abatement of action which does not survive, by death of party pending appeal or writ of error, 62 A.L.R. 1048 .

Survival of liability on joint obligation, 67 A.L.R. 608 .

Survival against community of right of action for a tort of the deceased member of the community, 67 A.L.R. 1159 .

Does a right of action on bond to recover for damages personal in their nature, and not affecting property rights, survive principal's death, 70 A.L.R. 122 .

Survivability or assignability of action or cause of action in tort for damages for fraudulently procuring purchase or sale of property, 76 A.L.R. 403 .

Survival of claim for usury against estate of usurer, 78 A.L.R. 451 .

Survival upon death of wrongdoer of husband's or parent's action or right of action for consequential damages arising from injury to wife or minor child, 78 A.L.R. 593 .

Survival of action or cause of action for personal injuries upon death of tort-feasor, 78 A.L.R. 600 .

Relation between survivability of cause of action and abatability of pending action, 92 A.L.R. 956 .

Death of tort-feasor before death of injured person as precluding action for death, 112 A.L.R. 343 .

What actions or causes of action involve injury to the reputation within statutes relating to survival of causes of action or abatement of actions, 117 A.L.R. 574 .

Revivor of suit for cancellation or suit for reinstatement of life insurance pending at death of insured, 125 A.L.R. 706 .

Right of one to contest will as passing to his assignee, personal representative, heir or next of kin; revival of pending contest upon death of contestant, 129 A.L.R. 324 .

Death of principal defendant as abating or dissolving garnishment or attachment, 131 A.L.R. 1146 .

Abatement or survival, upon death of party, of action, or cause of action, based on libel or slander, 134 A.L.R. 717 .

Effect of death of party to divorce or annulment suit before final decree, 158 A.L.R. 1205 .

Conflict of laws as regards survival of cause of action and revival or pending action upon death of party, 42 A.L.R.2d 1170.

Capacity of local or foreign personal representative to maintain action for death under foreign statute providing for action by personal representative, 52 A.L.R.2d 1016.

Abatement or survival of action for attorney's malpractice or negligence upon death of either party, 65 A.L.R.2d 1211.

Illness or death of party, counsel, or witness as excuse for failure to timely prosecute action, 80 A.L.R.2d 1399.

Assignability and survivability of cause of action created by civil rights statute, 88 A.L.R.2d 1153.

For whose benefit a survival action under the Federal Employers' Liability Act, or the Jones Act, may be prosecuted, 94 A.L.R.2d 910.

Survival of action or cause of action under civil damage acts, 94 A.L.R.2d 1140.

Death of putative father as precluding action for determination of paternity or for child support, 58 A.L.R.3d 188.

Validity of exception for specific kind of tort action in survival statute, 77 A.L.R.3d 1349.

Modern status: inheritability or descendability of right to contest will, 11 A.L.R.4th 907.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707.

Abatement of state criminal case by accused's death pending appeal of conviction - modern cases, 80 A.L.R.4th 189.

9-2-41. Nonabatement of tort actions; survival of cause; no punitive damages against representative.

No action for a tort shall abate by the death of either party, where the wrongdoer received any benefit from the tort complained of; nor shall any action or cause of action for the recovery of damages for homicide, injury to the person, or injury to property abate by the death of either party. The cause of action, in case of the death of the plaintiff and in the event there is no right of survivorship in any other person, shall survive to the personal representative of the deceased plaintiff. In case of the death of the defendant, the cause of action shall survive against said defendant's personal representative. However, in the event of the death of the wrongdoer before an action has been brought against him, the personal representative of the wrongdoer in such capacity shall be subject to the action just as the wrongdoer himself would have been during his life, provided that there shall be no punitive damages against the personal representative.

(Orig. Code 1863, § 2909; Code 1868, § 2916; Code 1873, § 2967; Code 1882, § 2967; Ga. L. 1889, p. 73, § 1; Civil Code 1895, § 3825; Civil Code 1910, § 4421; Code 1933, § 3-505; Ga. L. 1935, p. 94, § 1; Ga. L. 1952, p. 224, § 1.)

Law reviews. - For article advocating protection of property rights of deceased injured party by means of survival statute, prior to revision of this Code section in 1952, see 14 Ga. B.J. 40 (1951). For article, "Actions for Wrongful Death in Georgia: Part One," see 19 Ga. B.J. 277 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," see 19 Ga. B.J. 439 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," Section Two, see 20 Ga. B.J. 152 (1957). For article, "The Discount Rate in Georgia Personal Injury and Wrongful Death Damage Calculations," see 13 Ga. St. U.L. Rev. 431 (1997). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). For comment on Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971), refusing to apply doctrine of parental immunity to suit brought by minor against father's estate, see 8 Ga. St. B.J. 544 (1972).

JUDICIAL DECISIONS

Constitutionality of 1952 amendment. - The 1952 Act amending this section does not violate Ga. Const. 1976, Art. III, Sec. VII, Paras. IV or XII (see now Ga. Const. 1983, Art. III, Sec. V, Para. III or IV). Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232 , 104 S.E.2d 208 (1958).

At common law, a cause of action for a personal tort abated on death of tort-feasor. Citizens' & S. Nat'l Bank v. Hendricks, 176 Ga. 692 , 168 S.E. 313 (1933).

At common law, the axiom "actio personalis moritur cum persona" applied, and personal actions abated upon the death of either party, with certain exceptions. Posner v. Koplin, 94 Ga. App. 306 , 94 S.E.2d 434 (1956).

This section was extended to rights of action in 1952. Posner v. Koplin, 94 Ga. App. 306 , 94 S.E.2d 434 (1956).

Purpose of 1952 amendment, inserting words "or cause of action," was not to create a new cause of action but to provide for survival to administrator of causes of action that existed in the deceased before death; the legislature could have had no other purpose in mind. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232 , 104 S.E.2d 208 (1958).

The 1952 amendment to this section, which added the words "or cause of action," while not creating any new cause of action, was clear in its intent that cause of action once accruing to a person would survive to the person's personal representative upon the death of such person, when there was no right of survivorship in any other person. West v. Mathews, 104 Ga. App. 57 , 121 S.E.2d 41 (1961).

Impact of 1952 amendment. - The Act of 1952, Ga. L. 1952, p. 224, amending this section, made the provisions of the Act of 1889 applicable to causes of action or rights of action, as opposed to pending suits which alone were dealt with in that Act. Posner v. Koplin, 94 Ga. App. 306 , 94 S.E.2d 434 (1956).

Effect of 1952 amendment is to preserve the cause of action of the deceased and to permit an action thereon by the deceased's administrator. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232 , 104 S.E.2d 208 (1958).

The 1952 amendment to this section confers a new right, and is remedial only; it may not be given retrospective effect. Biddle v. Moore, 87 Ga. App. 524 , 74 S.E.2d 552 (1953).

"Cause of action" and "action" distinguished. - Action is the judicial means of enforcing a right, and differs from a cause of action in that the latter is the right itself. Alexander v. Dean, 29 Ga. App. 722 , 116 S.E. 643 (1923), aff'd, 157 Ga. 280 , 121 S.E. 238 (1924); Citizens' & S. Nat'l Bank v. Hendricks, 176 Ga. 692 , 168 S.E. 313 (1933).

This section prevents pending action for libel from abating. Johnson v. Bradstreet Co., 87 Ga. 79 , 13 S.E. 250 (1891); Posner v. Koplin, 94 Ga. App. 306 , 94 S.E.2d 434 (1956).

Fetal victim of a tort must be born alive in order to seek recovery from the alleged tortfeasor. Peters v. Hospital Auth., 265 Ga. 487 , 458 S.E.2d 628 (1995).

Survival of cause for wrongful death of husband when wife dies. - When wife sues for wrongful death of husband, and during pendency of such action dies, the action survives in the first instance to the living children of the deceased, and if there are no living children, the action survives to the personal representative of the deceased plaintiff. Campbell v. Western & A.R.R., 57 Ga. App. 209 , 194 S.E. 927 (1938).

When widow died before instituting action for wrongful death of husband, the cause of action survived the death of the wife and became vested in the couple's children. Keenan Welding Supplies Co. v. Bronner, 100 Ga. App. 400 , 111 S.E.2d 140 (1959).

Wrongful death actions distinguished. - O.C.G.A. § 9-2-41 is distinct from, and should not be confused with, O.C.G.A. § 51-4-1 et seq. (wrongful death), as the latter sections create a new cause of action in certain individuals for the value of the decedent's life, while O.C.G.A. § 9-2-41 permits survival of the tort claims which the deceased possessed the instant before death. Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir. 1984), reh'g en banc, 774 F.2d 1495 (11th Cir. 1985), cert. denied, 476 U.S. 1115, 106 S. Ct. 1970 , 90 L. Ed. 2 d 654, cert. denied, 476 U.S. 1124, 106 S. Ct. 1993 , 90 L. Ed. 2 d 673 (1986), cert. denied, 493 U.S. 817, 110 S. Ct. 70 , 107 L. Ed. 2 d 37 (1989).

Survivor's statutory claim for a decedent's wrongful death and an estate's common-law claim for the same decedent's pain and suffering are distinct causes of action. This does not mean, however, that double damages are recoverable for the same injury. Bibbs v. Toyota Motor Corp., 304 Ga. 68 , 815 S.E.2d 850 (2018).

Standing of representatives. - Before determining whether the estates, representatives of the decedents, or direct heirs stated a valid cause of action under 28 U.S.C. § 1605A, the court had to first determine whether the estates had standing to pursue claims for emotional and mental anguish that the decedents suffered while still alive. The court permitted the claims of four of the servicemen's estates to proceed because: (1) pursuant to O.C.G.A. § 9-2-41 , Georgia courts frequently entertained suits, without limitation, brought by estate representatives for personal injury suffered by the decedent while still alive; (2) N.Y. Est. Powers & Trusts Law § 11-3.2 ensured that all tort and contract actions that belonged to a decedent may now be maintained by the estate's personal representative; (3) Puerto Rico's law regarding causes of action by members of an estate permitted individual members to bring a cause of action for the decedent's pain and suffering; and (4) the survivability statute, S.C. Code Ann. § 15-5-90 had a wide ambit, and generally any cause of action which could have been brought by the deceased in the deceased's lifetime survived to the deceased's representative. Anderson v. Islamic Republic of Iran, F. Supp. 2d (DC Dec. 1, 2010).

Parent's right to bring a wrongful death action survives to parent's representative. - Existing right of action by a parent to recover for the homicide of a child will survive to the representative of the parent's estate regardless of whether the action was filed during the parent's lifetime. Caylor v. Potts, 183 Ga. App. 133 , 358 S.E.2d 291 (1987), overruled on other grounds, Hosley v. Davidson, 211 Ga. App. 529 , 439 S.E.2d 742 (1993).

Representative of a parent's estate is not authorized to bring an action for wrongful death of the parent's minor child if there is a surviving parent or other person entitled to bring it. Hosley v. Davidson, 211 Ga. App. 529 , 439 S.E.2d 742 (1993).

Recovery, under former Civil Code 1910, § 4421 (see now O.C.G.A. § 9-2-41 ), by administrator for decedent's personal injuries was not bar to wrongful death action under former Civil Code 1910, §§ 4424 and 4425 (see now O.C.G.A. § 51-4-2 ), by decedent's wife and children. Spradlin v. Georgia Ry. & Elec. Co., 139 Ga. 575 , 77 S.E. 799 (1913).

Suspension of action on death of plaintiff. - Upon death of wife suing for homicide of husband, action does not abate but is suspended; however, nothing further can properly be done in the action until the person or persons in whose favor the action survives is brought or voluntarily appears before the court by proper proceedings. Campbell v. Western & A.R.R., 57 Ga. App. 209 , 194 S.E. 927 (1938).

Substitution of temporary administrator. - Upon death of parent suing for negligent homicide of child, temporary administrator upon the parent's estate may be made party plaintiff to the action. Roadway Express, Inc. v. Jackson, 77 Ga. App. 341 , 48 S.E.2d 691 (1948).

Action not viable prior to death. - Beneficiaries' claims against a former trustee failed because the cause of action was not viable against the former trustee before the former trustee's death. Nalley v. Langdale, 319 Ga. App. 354 , 734 S.E.2d 908 (2012).

If plaintiff could not have maintained action against decedent during lifetime, action cannot be maintained against decedent's personal representative. Wrinkle v. Rampley, 97 Ga. App. 453 , 103 S.E.2d 435 (1958).

Action against husband for tort against wife or against father's estate for tort against mother. - In this state wife cannot recover of husband with whom she is living for injury caused by his negligent operation of an automobile, and fact that defendant husband is dead at time of action is immaterial, for reason that defendant's administrator is subject to suit just as wrongdoer himself would have been during his life; moreover, since wife could not bring action if alive, her children could not sue husband (their father) for her wrongful death. Harrell v. Gardner, 115 Ga. App. 171 , 154 S.E.2d 265 (1967).

Action against father's estate for tort to son. - Son injured in auto accident due to alleged negligence of father had a cause of action against father which the son was prevented from converting into a judgment while father lived because of doctrine of parental immunity, but upon father's death such immunity terminated and father's estate became subject to liability. Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971), for comment, see 8 Ga. B.J. 544 (1972).

Husband's actions distinguished. - Husband's action for wrongful death of wife is not part of same cause of action as his action as administrator under this section for wife's pain and suffering and her medical, hospital, and funeral expenses so as to raise the issue of res judicata. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967).

Nonabatement of action for railroad employers' liability. - Under former Code 1910, § 4421 (see now O.C.G.A. § 9-2-41 ), an action under former Civil Code 1910, §§ 4421 and 5617 (see now O.C.G.A. Art. 1, Ch. 7, T. 34), relating to employers' liability for railroad employees' injuries, will not abate. Central of Ga. Ry. v. Jones, 24 Ga. App. 532 , 101 S.E. 710 (1919), later appeal, 28 Ga. App. 258 , 110 S.E. 914 , cert. denied, 260 U.S. 729, 43 S. Ct. 92 , 67 L. Ed. 485 (1922); Central of Ga. Ry. v. Jones, 152 Ga. 92 , 108 S.E. 618 (1921).

Administrator proper party to pursue civil rights claims. - In a declaratory judgment case and pursuant to O.C.G.A. §§ 9-2-40 and 9-2-41 , an administrator had standing and was the proper party to pursue any surviving 42 U.S.C. §§ 1981 and 1988 civil rights claims on behalf of the decedent's estate. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324 (N.D. Ga. Mar. 12, 2007).

Administrator in a RICO action could maintain suit. - In a case in which the intended beneficiaries of two life insurance policies alleged violations of Georgia's Racketeer Influenced & Corrupt Organizations Act (RICO), O.C.G.A. § 16-4-1 et seq., the representative of the decedent's estate may be able to recover in a representative capacity for acts directed toward, or harm incurred by, the decedent. Under O.C.G.A. § 9-2-41 , a tort action did not abate by the death of the injured party, but survived to the personal representative of the decedent. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324 (N.D. Ga. Mar. 12, 2007).

Cited in Ellington v. Bennett, 56 Ga. 158 (1876); Pritchard v. Savannah St. & Rural Resort R.R., 87 Ga. 294 , 13 S.E. 493 , 14 L.R.A. 721 (1891); Frazier v. Georgia R.R. & Banking Co., 101 Ga. 77 , 28 S.E. 662 (1897); Southern Bell Tel. & Tel. Co. v. Cassin, 111 Ga. 575 , 36 S.E. 881 , 50 L.R.A. 694 (1900); King v. Southern Ry., 126 Ga. 794 , 55 S.E. 965 , 8 L.R.A. (n.s.) 544 (1906); Peebles v. Charleston & W.C. Ry., 7 Ga. App. 279 , 66 S.E. 953 (1910); Smith v. Jones, 138 Ga. 716 , 76 S.E. 40 (1912); Sewell v. Atkinson, 14 Ga. App. 386 , 80 S.E. 862 (1914); Callaway v. Livingston, 28 Ga. App. 453 , 111 S.E. 742 (1922); Alexander v. Dean, 29 Ga. App. 722 , 116 S.E. 643 (1923); Tufts v. Threlkeld, 31 Ga. App. 452 , 121 S.E. 120 (1923); Alexander v. Dean, 157 Ga. 280 , 121 S.E. 238 (1924); Farnell v. Brady, 159 Ga. 209 , 125 S.E. 57 (1924); Darnell v. Toney, 41 Ga. App. 673 , 154 S.E. 379 (1930); Sheffield v. Sheffield, 49 Ga. App. 215 , 174 S.E. 925 (1934); Roberts v. Turner, 49 Ga. App. 516 , 176 S.E. 91 (1934); Herrington v. City of Dublin, 50 Ga. App. 769 , 179 S.E. 845 (1935); Harbour v. City of Rome, 54 Ga. App. 97 , 187 S.E. 231 (1936); Thompson v. Watson, 186 Ga. 396 , 197 S.E. 774 (1938); Barnett v. D.O. Martin Co., 191 Ga. 11 , 11 S.E.2d 210 (1940); Davis v. Atlanta Gas Light Co., 82 Ga. App. 460 , 61 S.E.2d 510 (1950); Burks v. Colonial Life & Accident Ins. Co., 98 F. Supp. 140 (M.D. Ga. 1951); Berry v. Smith, 85 Ga. App. 710 , 70 S.E.2d 62 (1952); Rogers v. Douglas Tobacco Bd. of Trade, Inc., 244 F.2d 471 (5th Cir. 1957); Gross v. Shankle, 97 Ga. App. 631 , 104 S.E.2d 145 (1958); Wheeler v. Satilla Rural Elec. Membership Corp., 103 Ga. App. 401 , 119 S.E.2d 375 (1961); Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961); Hayes v. Strickland, 112 Ga. App. 567 , 145 S.E.2d 728 (1965); Cohn v. Combs, 126 Ga. App. 292 , 190 S.E.2d 546 (1972); Rowe v. Citizens & S. Nat'l Bank, 129 Ga. App. 251 , 199 S.E.2d 319 (1973); Kilgo v. Bowman Transp., Inc., 87 F.R.D. 26 (N.D. Ga. 1980); Childers v. Tauber, 160 Ga. App. 713 , 288 S.E.2d 5 (1981); State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 , 347 S.E.2d 281 (1986); Gay v. Piggly Wiggly S., Inc., 183 Ga. App. 175 , 358 S.E.2d 468 (1987); Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275 , 398 S.E.2d 271 (1990), but see First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883 , 655 S.E.2d 605 (2008); Blackstone v. Blackstone, 282 Ga. App. 515 , 639 S.E.2d 369 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Survival of food stamp liability. - Liability provided for in Ga. L. 1965, p. 385, § 13 (see now O.C.G.A. § 49-4-15(b) ), relating to fraudulent use, etc., of food stamps, survived death of recipient and constituted a claim against the recipient's estate, even if considered as a cause of action in tort rather than in contract, inasmuch as former Code 1933, § 3-505 (see now O.C.G.A. § 9-2-41 ) provided that a cause of action in tort shall survive death of tort-feasor when the tort-feasor received a benefit from the tort. 1965-66 Op. Att'y Gen. No. 66-250.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, §§ 47 et seq., 58, 59.

C.J.S. - 1 C.J.S., Abatement and Revival, § 124 et seq.

ALR. - Does right of grantor to maintain a suit in equity to set aside his conveyance for cause survive to his heir, 2 A.L.R. 431 ; 33 A.L.R. 51 .

Measure of damages in action for personal injuries commenced by the deceased in his lifetime and revived by his personal representative, 42 A.L.R. 187 .

Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806 .

Survival of action or cause of action for wrongful death against representative of wrongdoer, 61 A.L.R. 830 ; 171 A.L.R. 1392 .

Abatement of action which does not survive, by death of party pending appeal or writ of error, 62 A.L.R. 1048 .

Recovery under common law or state death statute where cause of action under Federal Employers' Liability Acts fails for want of proof that deceased or injured person was an employee of defendant, 66 A.L.R. 429 .

Survival against community of right of action for a tort of the deceased member of the community, 67 A.L.R. 1159 .

Survival of cause of action for personal injury or death against tort-feasor killed in the same accident, 70 A.L.R. 1319 .

Survivability or assignability of action or cause of action in tort for damages for fraudulently procuring purchase or sale of property, 76 A.L.R. 403 .

Survival upon death of wrongdoer of husband's or parent's action or right of action for consequential damages arising from injury to wife or minor child, 78 A.L.R. 593 .

Survival of action or cause of action for personal injuries upon death of tort-feasor, 78 A.L.R. 600 .

Death of tort-feasor before death of injured person as precluding action for death, 112 A.L.R. 343 .

Kind of verdict or judgment, or verdicts or judgments, where administrator or executor whose decedent was negligently killed brings an action which combines a cause of action for benefit of estate and another for statutory beneficiaries, 124 A.L.R. 621 .

Revivor of suit for cancellation or suit for reinstatement of life insurance pending at death of insured, 125 A.L.R. 706 .

Abatement or survival, upon death of party, of action, or cause of action, based on libel or slander, 134 A.L.R. 717 .

Action against spouse or estate for causing death of other spouse, 28 A.L.R.2d 662.

Claim for negligently damaging or destroying personal property as surviving tort-feasor's death, 40 A.L.R.2d 533.

Statutory liability for physical injuries inflicted by animal as surviving defendant's death, 40 A.L.R.2d 543.

Conflict of laws as regards survival of cause of action and revival or pending action upon death of party, 42 A.L.R.2d 1170.

Medical malpractice action as abating upon death of either party, 50 A.L.R.2d 1445.

Abatement or survival of action for attorney's malpractice or negligence upon death of either party, 65 A.L.R.2d 1211.

Retroactive effect of statute changing manner and method of distribution of recovery or settlement for wrongful death, 66 A.L.R.2d 1444.

Illness or death of party, counsel, or witness as excuse for failure to timely prosecute action, 80 A.L.R.2d 1399.

Assignability and survivability of cause of action created by civil rights statute, 88 A.L.R.2d 1153.

For whose benefit a survival action under the Federal Employers' Liability Act, or the Jones Act, may be prosecuted, 94 A.L.R.2d 910.

Survival of action or cause of action under civil damage acts, 94 A.L.R.2d 1140.

Libel by will, 21 A.L.R.3d 754.

Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value of earnings decedent would have made after death, 76 A.L.R.3d 125.

Validity of exception for specific kind of tort action in survival statute, 77 A.L.R.3d 1349.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707.

Defamation action as surviving plaintiff's death, under statute not specifically covering action, 42 A.L.R.4th 272.

9-2-42. Death of one or more codefendants; suggestion of record.

In all actions against two or more defendants, one or more of whom have died or may die pending the action, the plaintiff may suggest the death of record and proceed against the surviving defendants to the extent of their respective liabilities.

(Ga. L. 1859, p. 49, § 1; Code 1863, § 3377; Code 1868, § 3396; Code 1873, § 3444; Code 1882, § 3444; Civil Code 1895, § 5041; Civil Code 1910, § 5623; Code 1933, § 3-506.)

Law reviews. - For article, "Actions for Wrongful Death in Georgia: Part One," see 19 Ga. B.J. 277 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," see 19 Ga. B.J. 439 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," section two, see 20 Ga. B.J. 152 (1957).

JUDICIAL DECISIONS

Plaintiff may suggest death and proceed against surviving defendants to the extent of their respective liabilities in actions against defendants, one or more of whom have died or may die pending the action. Rogers v. Chambers, 112 Ga. 258 , 37 S.E. 429 (1900).

Entry on minutes may be made after judgment. Pearce v. E.M. Bruce & Co., 38 Ga. 444 (1868).

Application of section to actions against partnerships. - Section does not apply to action against two partners to obtain account for partnership acts, and when one of the partners dies, the personal representatives of the deceased must be made parties. Pearce v. E.M. Bruce Co., 38 Ga. 444 (1868).

When action is pending against partnership and one of the partners dies, upon the partner's death being suggested of record, the case may proceed without further order against the other two partners as survivors. Telford v. Quillian, 45 Ga. App. 257 , 164 S.E. 228 (1932).

Death of surety in action on bond after reference to auditor. - Under this section, death of one of defendant sureties after filing of action against principal and sureties on administrator's bond and after reference of case to auditor but before hearing by auditor does not abate action or deprive auditor of jurisdiction. Ellis v. Geer, 36 Ga. App. 519 , 137 S.E. 290 (1927).

After sole defendant in action of ejectment dies and another defendant has been brought in and has pleaded to the merits, action may proceed as to the latter without making representative of the former a party. Gardner v. Granniss, 57 Ga. 539 (1876).

Cited in Castor v. Pace, 24 Ga. 137 (1858); Stancil v. Kenan, 35 Ga. 102 (1866); Sanders v. Etcherson, 36 Ga. 404 (1867); Bullock v. King, 48 Ga. 550 (1873); Cobb v. Pitman, 49 Ga. 578 (1873); Stewart v. Barrow, 55 Ga. 664 (1876); Hall ex rel. Watkins v. Woolley, 59 Ga. 755 (1877); Crapp v. Dodd, 92 Ga. 405 , 17 S.E. 666 (1893); American Sur. Co. v. Wood, 2 Ga. App. 641 , 58 S.E. 1116 (1907); Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275 , 65 S.E. 35 (1909); Heitmann v. Commercial Bank, 7 Ga. App. 740 , 68 S.E. 51 (1910); Watts v. Langston, 135 Ga. 161 , 68 S.E. 1115 (1910); Hyde v. Fornara, 74 Ga. App. 438 , 40 S.E.2d 151 (1946).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, §§ 47 et seq., 100.

C.J.S. - 1 C.J.S., Abatement and Revival, § 124 et seq.

ALR. - Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806 .

Abatement of action which does not survive, by death of party pending appeal or writ of error, 62 A.L.R. 1048 .

Death of tort-feasor before death of injured person as precluding action for death, 112 A.L.R. 343 .

Death of principal defendant as abating or dissolving garnishment or attachment, 131 A.L.R. 1146 .

Reversal upon appeal by, or grant of new trial to, one coparty defendant against whom judgment was rendered, as affecting judgment in favor of other coparty defendants, 166 A.L.R. 563 .

Conflict of laws as regards survival of cause of action and revival or pending action upon death of party, 42 A.L.R.2d 1170.

Abatement or survival of action for attorney's malpractice or negligence upon death of either party, 65 A.L.R.2d 1211.

Assignability and survivability of cause of action created by civil rights statute, 88 A.L.R.2d 1153.

Survival of action or cause of action under civil damage acts, 94 A.L.R.2d 1140.

Validity of exception for specific kind of tort action in survival statute, 77 A.L.R.3d 1349.

9-2-43. No abatement where some defendants not liable.

An action against several persons shall not abate where it appears that some of the defendants are not liable but may proceed against those who are liable.

(Orig. Code 1863, § 3375; Code 1868, § 3394; Code 1873, § 3442; Code 1882, § 3442; Civil Code 1895, § 5039; Civil Code 1910, § 5621; Code 1933, § 3-504.)

JUDICIAL DECISIONS

When amendment to petition set forth alleged true relationship between the parties by striking one of the defendants and petition as amended still set out cause of action against other defendant, seeking to recover on same contract, not a new or different contract and not a new cause of action, action did not abate. City Council v. Diseker, 54 Ga. App. 801 , 189 S.E. 601 (1936).

Cited in Wooten & Co. v. Nall, 18 Ga. 609 (1855); Hillburn v. O'Barr, 19 Ga. 591 (1856); Francis v. Dickel & Co., 68 Ga. 255 (1881); Lippincott & Co. v. Behre, 122 Ga. 543 , 50 S.E. 467 (1905).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, §§ 22 et seq., 102.

C.J.S. - 1 C.J.S., Abatement and Revival, §§ 106, 124 et seq. 27 C.J.S., Dismissal and Nonsuit, § 64 et seq.

ALR. - Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806 .

Release of one of two or more persons whose independent tortious acts combine to produce an injury as releasing other or others, 134 A.L.R. 1225 .

Grant of new trial, or reversal of judgment on appeal as to one joint tort-feasor, as requiring new trial or reversal as to other tort-feasor, 143 A.L.R. 7 .

Reversal upon appeal by, or grant of new trial to, one coparty defendant against whom judgment was rendered, as affecting judgment in favor of other coparty defendants, 166 A.L.R. 563 .

9-2-44. Effect of former recovery; pendency of former action.

  1. A former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement. However, if the first action is so defective that no recovery can possibly be had, the pendency of a former action shall not abate the latter.
  2. Parol evidence shall be admissible to show that a matter apparently covered by the judgment was not passed upon by the court.

    (Orig. Code 1863, §§ 2838, 2839, 3407; Code 1868, §§ 2846, 2847, 3426; Code 1873, §§ 2897, 2898, 3476; Code 1882, §§ 2897, 2898, 3476; Civil Code 1895, §§ 3741, 3743, 3476; Civil Code 1910, §§ 4335, 4337, 5678; Code 1933, §§ 3-607, 3-608; Ga. L. 1982, p. 3, § 9.)

Cross references. - Pendency of former action defense to latter on same cause, § 9-2-5 .

Law reviews. - For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B.J. 24 (1985). For note, "Res Judicata in the Georgia Courts," see 11 Ga. L. Rev. 929 (1977).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

History of this section, see Hood v. Cooledge, 39 Ga. App. 476 , 147 S.E. 426 (1929).

O.C.G.A. § 9-2-44 provides for abatement as matter of law whenever a former recovery or a pending suit for the same cause has been pleaded. Cale v. Cale, 160 Ga. App. 434 , 287 S.E.2d 362 (1981).

This section contemplates both actions that are reduced to judgment and pending actions. Stein Steel & Supply Co. v. Wilkins, 102 Ga. App. 389 , 116 S.E.2d 507 (1960).

Status of second action. - Second action is not necessarily void ab initio when there is a prior pending action. Parsons, Brinckerhoff, Quade & Douglas, Inc. v. Johnson, 161 Ga. App. 634 , 288 S.E.2d 320 (1982).

"Renewal suit" filed by a limited liability company (LLC) and the company's manager against three corporations was properly dismissed under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) as the LLC and manager's prior and nearly identical suit against the corporation had been dismissed and an appeal was pending. However, the second dismissal should have been without prejudice under O.C.G.A. § 9-11-41(b) as the corporation's plea in abatement did not challenge the merits of that suit. Sadi Holdings, LLC v. Lib Props., Ltd, 293 Ga. App. 23 , 666 S.E.2d 446 (2008).

Renewal action not barred although counterclaim from prior action still pending. - After a car buyer dismissed the buyer's fraud and breach of contract action against the seller while a counterclaim was pending and then attempted to refile the buyer's claims under the renewal statute, O.C.G.A. § 9-2-61 , the trial court erred in dismissing the renewed action under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) . Code Section 9-2-5(a) precluded simultaneous prosecution of the same claims, and the buyer was not prosecuting the same claims simultaneously, given that the buyer dismissed the buyer's claims in the first case. Brock v. C & M Motors, Inc., 337 Ga. App. 288 , 787 S.E.2d 259 (2016).

Third action dismissal. - While a trial court could dismiss a neighbor's third complaint pursuant to O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) , the court was not at liberty to do so with prejudice. McLeod v. Clements, 310 Ga. App. 235 , 712 S.E.2d 627 (2011).

Consideration with § 9-2-5 . - O.C.G.A. §§ 9-2-5 and 9-2-44 are closely related in effect and are to be considered and applied together. Huff v. Valentine, 217 Ga. App. 310 , 457 S.E.2d 249 (1995).

Apparent conflict between former Civil Code 1910, §§ 4335, 4336, 4337, 5678, 5679 and 5943 (see O.C.G.A. §§ 9-2-44 , 9-12-40 , and 9-12-42 ) was readily reconciled by the fact that former Civil Code 1910, §§ 4335, 4337, 5678, and 5679 have special application to estoppels by judgment, while former Civil Code 1910, §§ 4336 and 5943 applied when a plea of res adjudicate was available. Camp v. Lindsay, 176 Ga. 438 , 168 S.E. 284 (1933).

Law articulated by this section applies to torts. Owens v. Williams, 87 Ga. App. 238 , 73 S.E.2d 512 (1952).

Lack of jurisdiction. - Because a dispossessory court never ruled upon or resolved a landlord's claims for past due rent and other damages, and because the dispossessory court lacked jurisdiction over the defaulting tenants, who were served by "nail and mail" service under O.C.G.A. § 44-7-51(a) , the landlord's claims were not barred by the doctrine of res judicata under O.C.G.A. § 9-12-40 or subject to a plea of abatement under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) . Bhindi Bros. v. Patel, 275 Ga. App. 143 , 619 S.E.2d 814 (2005).

One of the prime objects of judicial procedure is to forever settle and end disputes between litigants, and courts never look with favor on unnecessary prolongation of litigation, and particularly disapprove of attempts to ignore or evade binding judgments. Lankford v. Holton, 196 Ga. 631 , 27 S.E.2d 310 (1943).

Record must be introduced. - For plea or motion based on this section to avail, record in former action must be introduced in evidence. Watts v. Kundtz, 128 Ga. App. 797 , 197 S.E.2d 859 (1973).

As court cannot take judicial notice of prior pleadings. - When no evidence is introduced in support of plea or motion based on pendency or adjudication of previous action, the trial court cannot take judicial notice of a pleadings in previously instituted suit. Watts v. Kundtz, 128 Ga. App. 797 , 197 S.E.2d 859 (1973).

In claim interposed by third person to vehicle seized by state for illegally transporting spiritous liquors, acquittal of defendant in criminal proceeding for related penal offense was inadmissible. Duncan v. State, 149 Ga. 195 , 99 S.E. 612 (1919).

Abatement was proper remedy. - When a former employer asserted claims identical to ones that were compulsory counterclaims in earlier suits, the trial court erred in denying a plea in abatement to all but one of the former employees pursuant to O.C.G.A. §§ 9-2-5 and 9-2-44 ; the trial court did not abuse the court's O.C.G.A. § 9-5-8 discretion in staying two prior cases pursuant to O.C.G.A. §§ 9-5-1 and 9-5-3 . Smith v. Tronitec, Inc., 277 Ga. 210 , 586 S.E.2d 661 (2003).

Abatement was not proper remedy. - Superior court erred in finding that the later-filed action, seeking an intruder warrant, had to be abated according to O.C.G.A. § 9-2-44 because, per the explicit language of O.C.G.A. § 44-11-32 , the case on the intruder warrant could not have been brought in the magistrate court and, thus, the prior pending action doctrine did not apply. Brixmor/IA Northeast Plaza, LLC v. Sublet Atlanta Realty, LLC, 347 Ga. App. 223 , 818 S.E.2d 681 (2018).

Cited in Macon & A.R.R. v. Garrard, 54 Ga. 327 (1875); Harris v. Tison, 63 Ga. 629 , 36 Am. R. 126 (1879); Watkins v. Lawton, 69 Ga. 671 (1882); Swift v. Dederick, 106 Ga. 35 , 31 S.E. 788 (1898); Garlington v. Fletcher, 111 Ga. 861 , 36 S.E. 920 (1900); Wilson v. Williams, 115 Ga. 474 , 41 S.E. 629 (1902); Reynolds & Hamby Estate Mtg. Co. v. Martin, 116 Ga. 495 , 42 S.E. 796 (1902); Conwell v. Neal, 118 Ga. 624 , 45 S.E. 910 (1903); Quattlebaum v. State, 119 Ga. 433 , 46 S.E. 677 (1904); Jordan v. Thornton, 5 Ga. App. 537 , 63 S.E. 601 (1909); Moor v. Farlinger, 138 Ga. 359 , 75 S.E. 423 (1912); Winkles v. Simpson Grocery Co., 138 Ga. 482 , 75 S.E. 640 (1912); Central Bank & Trust Corp. v. State, 139 Ga. 54 , 76 S.E. 587 (1912); Miller v. Franklin, 14 Ga. App. 180 , 80 S.E. 549 (1914); Perrin v. Richardson, 142 Ga. 394 , 83 S.E. 102 (1914); Loganville Banking Co. v. Forrester, 17 Ga. App. 246 , 87 S.E. 694 (1915); Loganville Banking Co. v. Forrester, 19 Ga. App. 394 , 91 S.E. 490 (1917); Acree v. Bandy, 20 Ga. App. 133 , 92 S.E. 765 (1917); Winn v. Walker, 147 Ga. 427 , 94 S.E. 468 (1917); Hill v. Cox, 151 Ga. 599 , 107 S.E. 850 (1921); Allen v. Allen, 154 Ga. 581 , 115 S.E. 17 (1922); Chastain v. Chastain, 163 Ga. 69 , 135 S.E. 439 (1922); Sparks & Hutson v. Fort, 29 Ga. App. 531 , 116 S.E. 227 (1923); New v. Quinn, 31 Ga. App. 102 , 119 S.E. 457 (1923); Moody v. Williams, 157 Ga. 576 , 122 S.E. 56 (1924); Cowart v. Brigman Motors Co., 32 Ga. App. 123 , 122 S.E. 645 (1924); Bitting v. Chattooga County Bank, 159 Ga. 78 , 124 S.E. 899 (1924); McNair v. Rabun, 159 Ga. 401 , 126 S.E. 9 (1924); Holston Box & Lumber Co. v. Vonberg & Bates, 34 Ga. App. 298 , 129 S.E. 562 (1925); Bank of Louisville v. Wheeler, 162 Ga. 635 , 134 S.E. 753 (1926); First Nat'l Bank v. Pounds, 163 Ga. 551 , 136 S.E. 528 (1927); Long v. Atlanta Trust Co., 164 Ga. 21 , 137 S.E. 394 (1927); City of Atlanta v. Smith, 165 Ga. 146 , 140 S.E. 369 (1927); Lovett v. Barwick, 39 Ga. App. 326 , 147 S.E. 133 (1929); Miller v. Phoenix Mut. Life Ins. Co., 168 Ga. 321 , 147 S.E. 527 (1929); McDonald Mtg. & Realty Co. v. Feingold, 168 Ga. 763 , 149 S.E. 132 (1929); Henderson v. Henderson, 170 Ga. 457 , 153 S.E. 182 (1930); Sells v. Sells, 175 Ga. 110 , 165 S.E. 1 (1932); McEntyre v. Merritt, 49 Ga. App. 416 , 175 S.E. 661 (1934); Fowler v. National City Bank, 49 Ga. App. 435 , 176 S.E. 113 (1934); Coolidge v. Sandwich, 49 Ga. App. 563 , 176 S.E. 524 (1934); Coolidge v. Sandwich, 49 Ga. App. 564 , 176 S.E. 525 (1934); Rozetta v. Rozetta, 181 Ga. 494 , 182 S.E. 847 (1935); Ellis v. First Nat'l Bank, 182 Ga. 641 , 186 S.E. 813 (1936); Crider v. Harris, 183 Ga. 695 , 189 S.E. 519 (1937); Loveless v. Carten, 64 Ga. App. 54 , 12 S.E.2d 175 (1940); Stanton v. Gailey, 72 Ga. App. 292 , 33 S.E.2d 747 (1945); Moon v. Price, 213 F.2d 794 (5th Cir. 1954); Threlkeld v. Whitehead, 95 Ga. App. 378 , 98 S.E.2d 76 (1957); Galloway v. Merrill, 213 Ga. 633 , 100 S.E.2d 443 (1957); Dowling v. Pound, 214 Ga. 298 , 104 S.E.2d 465 (1958); Towler v. State Hwy. Dep't, 100 Ga. App. 374 , 111 S.E.2d 154 (1959); Almon v. R.H. Macy & Co., 103 Ga. App. 372 , 119 S.E.2d 140 (1961); Lowry v. Smith, 103 Ga. App. 601 , 120 S.E.2d 47 (1961); Gay v. Crockett, 217 Ga. 288 , 122 S.E.2d 241 (1961); Keith v. Darby, 104 Ga. App. 624 , 122 S.E.2d 463 (1961); Banks v. Sirmans, 218 Ga. 413 , 128 S.E.2d 66 (1962); Cozzort v. Cunningham, 107 Ga. App. 320 , 130 S.E.2d 171 (1963); West v. Hatcher, 219 Ga. 540 , 134 S.E.2d 603 (1964); Smith v. Smith, 219 Ga. 739 , 135 S.E.2d 866 (1964); Housing Auth. v. Heart of Atlanta Motel, Inc., 220 Ga. 192 , 137 S.E.2d 647 (1964); Banks v. Employees Loan & Thrift Corp., 112 Ga. App. 38 , 143 S.E.2d 787 (1965); Bailey v. Louisville & N.R.R., 117 Ga. App. 185 , 160 S.E.2d 245 (1968); Bishop v. Weems, 118 Ga. App. 180 , 162 S.E.2d 879 (1968); Miami Properties, Inc. v. Fitts, 226 Ga. 300 , 175 S.E.2d 22 (1970); Lowe v. Lowe, 123 Ga. App. 525 , 181 S.E.2d 715 (1971); American Indem. Co. v. Wilingham, 124 Ga. App. 818 , 186 S.E.2d 351 (1971); Price v. Georgia Indus. Realty Co., 132 Ga. App. 107 , 207 S.E.2d 556 (1974); Gilmer v. Porterfield, 233 Ga. 671 , 212 S.E.2d 842 (1975); Perimeter Billjohn, Inc. v. Perimeter Mall, Inc., 141 Ga. App. 343 , 233 S.E.2d 470 (1977); Sheppard v. Post, 142 Ga. App. 646 , 236 S.E.2d 680 (1977); Rothstein v. Consuegra, 153 Ga. App. 620 , 266 S.E.2d 309 (1980); Bedingfield v. Bedingfield, 248 Ga. 91 , 281 S.E.2d 554 (1981); Greyhound Lines v. Cobb County, 681 F.2d 1327 (11th Cir. 1982); BBMS, Inc. v. Brown, 251 Ga. 409 , 306 S.E.2d 288 (1983); Ranger v. First Family Mtg. Corp., 176 Ga. App. 715 , 337 S.E.2d 388 (1985); Hose v. Jason Property Mgt. Co., 178 Ga. App. 661 , 344 S.E.2d 483 (1986); Sheppard v. Georgia Farm Bureau Mut. Ins. Co., 181 Ga. App. 258 , 351 S.E.2d 664 (1986); Atlanta Airmotive, Inc. v. Newnan-Coweta Airport Auth., 208 Ga. App. 906 , 432 S.E.2d 571 (1993); DOCO Credit Union v. Chambers, 330 Ga. App. 633 , 768 S.E.2d 808 (2015); White v. Ringgold Tel. Co., 334 Ga. App. 325 , 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

Former Recovery

This section must be construed in harmony with other sections to the effect that judgment of court of competent jurisdiction, if not absolutely void for some reason, shall be conclusive between same parties and their privies until it is reversed or set aside, and may not be impeached collaterally. Hadden v. Fuqua, 194 Ga. 621 , 22 S.E.2d 377 (1942).

Questions settled by former final judgment cannot be litigated in other actions, directly or indirectly. Smith v. Robinson, 214 Ga. 835 , 108 S.E.2d 317 (1959).

Subsequent suit forbidden against same parties on same issues. - Subsequent suit on different cause of action will be conclusive as to any matter actually in issue and determined by the court. Christian v. Penn, 7 Ga. 434 (1849); Price v. Carlton, 121 Ga. 12 , 48 S.E. 721 , 68 L.R.A. 736 (1904).

All questions between parties that are once and finally settled by solemn decree must be considered as an end to litigation; they cannot be relitigated in other actions, directly or indirectly. Lankford v. Holton, 196 Ga. 631 , 27 S.E.2d 310 (1943).

Adjudication of same subject matter at issue in former action between same parties, by court of competent jurisdiction, puts an end to litigation. Buie v. Buie, 175 Ga. 27 , 165 S.E. 15 (1932).

Former judgment is conclusive as to all facts which could have been ascertained and pled at original trial by use of proper diligence. Gladden v. Cobb, 80 Ga. 11 , 6 S.E. 163 (1887); McHan v. McHan, 178 Ga. 730 , 174 S.E. 336 (1934).

Involvement of same parties or their privies prerequisite. - Res judicata and estoppel by judgment can only be set up in a subsequent action between same parties or their privies. Harris v. Jacksonville Paper Co., 67 Ga. App. 759 , 21 S.E.2d 537 (1942); Owens v. Williams, 87 Ga. App. 238 , 73 S.E.2d 512 (1952).

Before judgment in former action will operate as a bar to subsequent action involving same subject matter, it must appear that former action was between the same parties or their privies. Russ Transp., Inc. v. Jones, 104 Ga. App. 612 , 122 S.E.2d 282 (1961).

In order for doctrine of collateral estoppel (estoppel by judgment) to be applied, parties to the two actions must be identical, or "privity" must exist with former party so as to provide for mutuality of application of former action. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967).

Phrase "same parties" does not mean that all of the parties on the respective sides of litigation in two cases shall have been identical, but means that those who invoke defense of res judicata or estoppel of judgment and those against whom defense is invoked must be the same. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

Real parties in interest or privies. - It is not required that all the parties on respective sides of litigation be identical, but is sufficient if those by and against whom the defense of res judicata or estoppel by judgment is invoked are real parties at interest or privies as to controversy in former case. National Life & Accident Ins. Co. v. Leo, 50 Ga. App. 473 , 178 S.E. 322 (1934).

Who are privies. - Prerequisite of identity of parties includes privies, who are usually defined as all persons who are represented by parties and claim under them, the term "privity" denoting a mutual or successive relationship to the same rights of property, but not different rights in the same property. Life & Cas. Ins. Co. v. Webb, 112 Ga. App. 344 , 145 S.E.2d 63 (1965).

Judgment is not conclusive as to third persons. Huggins v. State, 25 Ga. App. 38 , 103 S.E. 32 (1920).

Judgment is not conclusive as to one who was not a party to proceeding in which it was rendered or one over whom court acquired no jurisdiction, even if the latter was named as party defendant. Colodny v. Krause, 141 Ga. App. 134 , 232 S.E.2d 597 , cert. denied, 434 U.S. 892, 98 S. Ct. 267 , 54 L. Ed. 2 d 177 (1977).

Service on parties. - Record of former adjudication founded on pleadings of which no service was made or waiver thereof had is not admissible in subsequent suit. Muller v. Rhuman, 62 Ga. 332 (1879).

When original petition showed total want of jurisdiction and there was no attempt to serve amended petition upon defendant and no appearance or waiver by the defendant, the defendant was not concluded by final verdict and judgment rendered. Smith v. Downing Co., 21 Ga. App. 741 , 95 S.E. 19 (1913).

When substituted service of divorce action was accomplished by publication, mailing copy of process to nonresident defendant and having private individual hand copy to defendant, there was such total lack of personal service that defendant's rights could not be constitutionally adjudicated and res judicata could not operate. Daniel v. Daniel, 222 Ga. 861 , 152 S.E.2d 873 (1967).

If former action is dismissed for lack of jurisdiction, plaintiff is not prohibited from commencing another suit for same cause against same party in court having jurisdiction to grant relief sought. Harrison v. Speidel, 244 Ga. 643 , 261 S.E.2d 577 (1979).

This section does not operate as a bar when a judgment is set aside. Taylor v. Smith, 4 Ga. 133 (1848).

An erroneous judgment, while it stands unvacated, is a bar to another proceeding. Crutchfield v. State, 24 Ga. 335 (1858); Allen v. Allen, 154 Ga. 581 , 115 S.E. 17 (1922).

Identity of evidence in support of actions determinative. - To determine whether former recovery is bar to subsequent action, a good test is whether the same evidence will support both actions. Lynch v. Jackson, 31 Ga. 668 (1860).

Two causes of action involve same subject matter if same evidence would be necessary to sustain either of them. Jones v. Rich's, Inc., 81 Ga. App. 841 , 60 S.E.2d 402 (1950).

In order for former recovery to be pled in bar of subsequent action, two actions must be between same parties and on same cause of action, and test of identity of cause of action is whether same evidence will support both. Pekrol v. Collins, 122 Ga. App. 642 , 178 S.E.2d 294 (1970).

Any conclusion which court or jury must evidently have arrived at in order to reach judgment or verdict rendered will be fully concluded under this section. Kelly & Jones Co. v. Moore, 128 Ga. 683 , 58 S.E. 181 (1907).

Res judicata and estoppel by judgment distinguished. - While res judicata applies only as between same parties and upon same cause of action to matters which were actually in issue or which under rules of law could have been put in issue, estoppel by judgment applies as between same parties upon any cause of action to matters which were directly decided in former suit. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

Under both res judicata and estoppel by judgment, in order for former decision to be conclusive it must have been based, not merely on purely technical grounds, but at least in part on the merits, when under the pleadings they were or could have been involved. Sumner v. Sumner, 186 Ga. 390 , 197 S.E. 833 (1938).

Requirements for res adjudicata. - To make a matter res adjudicata, there must be a concurrence: (1) of identity of the subject-matter; (2) of the cause of action; (3) of persons and parties; and (4) in the quality of the person against whom the claim is made. Stevens v. Stembridge, 104 Ga. 619 , 31 S.E. 413 (1898); Price v. Carlton, 121 Ga. 12 , 48 S.E. 721 (1904); Edwards v. Carlton, 98 Ga. App. 230 , 105 S.E.2d 372 (1958).

In order for party to take advantage of doctrine of res judicata in subsequent action brought against that party after termination of first action, there are three prerequisites to which the situation must conform: (1) identity of the parties; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must concur. Lewis v. Price, 104 Ga. App. 473 , 122 S.E.2d 129 (1961); Life & Cas. Ins. Co. v. Webb, 112 Ga. App. 344 , 145 S.E.2d 63 (1965); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

In order for doctrine of res judicata to apply, there must be identity of parties, identity of cause of action, and adjudication by court of competent jurisdiction. Dixie Home Bldrs., Inc. v. Waldrip, 146 Ga. App. 464 , 246 S.E.2d 471 (1978).

Prior judgment is res judicata only as to actions involving same cause of action. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Requirement of same cause of action. - No judgment can be relied on in subsequent suit as res judicata of any issue in latter suit unless both suits are on same cause of action. Smith v. C.I.T. Corp., 69 Ga. App. 516 , 26 S.E.2d 146 (1943).

Judgment or decree of court of competent jurisdiction upon the merits concludes parties and privies to litigation and constitutes bar to new action involving same cause of action either before same or any other tribunal. Smith v. C.I.T. Corp., 69 Ga. App. 516 , 26 S.E.2d 146 (1943).

Causes of action in two suits must be identical in order for doctrine of res judicata to bar second action. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967).

Requirement that two cases be of "the same cause of action" is founded on doctrine that no one should be twice harassed for one and the same cause. Schoen v. Home Fed. Sav. & Loan Ass'n, 154 Ga. App. 68 , 267 S.E.2d 466 (1980).

New parties. - Plaintiffs' suit against three corporations was barred by O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) as a prior suit involving the same parties and claims had been dismissed and an appeal of the dismissal was pending. That there were minor differences between the two complaints and that plaintiffs added new defendants was immaterial. Sadi Holdings, LLC v. Lib Props., Ltd, 293 Ga. App. 23 , 666 S.E.2d 446 (2008).

Subject matter must be same. - Under this section, to make judgment in one action binding in another there must be not only identity of parties but also identity of subject matter. Brady v. Pryor, 69 Ga. 691 (1882).

What issues concluded by res adjudicata. - Under doctrine of res adjudicata, whenever there has been a judgment by court of competent jurisdiction in former litigation between same parties, based upon same cause of action as pending litigation, litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation. Harvey v. Wright, 80 Ga. App. 232 , 55 S.E.2d 835 (1949).

When issues presented by pleadings in pending action could have been inquired into and adjudicated in former action between same parties based upon same cause of action, adjudication of former suit on merits is res judicata of all issues presented in the pending suit. Mize v. Mize, 80 Ga. App. 441 , 56 S.E.2d 121 (1949).

Plea of res adjudicata is in the nature of an estoppel. Walden v. Walden, 128 Ga. 126 , 57 S.E. 323 (1907).

Plea of res adjudicata is not a dilatory plea. Hill v. Cox, 151 Ga. 599 , 107 S.E. 850 (1921).

Defense of res judicata must be sustained by proof clearly showing identity of parties and causes of action together with valid judgment. Uddyback v. George, 223 Ga. 311 , 154 S.E.2d 577 (1967).

Estoppel by judgment defined. - Doctrine of estoppel by judgment has reference to previous litigation between same parties based upon a different cause of action, and applies only to such matters as were necessarily or actually adjudicated in the former litigation. Farmer v. Baird, 35 Ga. App. 208 , 132 S.E. 260 (1926); Harvey v. Wright, 80 Ga. App. 232 , 55 S.E.2d 835 (1949).

Doctrine of estoppel by judgment has reference to previous litigation between same parties, based upon different cause of action, and provides for estoppel by judgment only as to such matters within scope of previous pleadings as necessarily had to be adjudicated in order for previous judgment to be rendered, or as to such matters within scope of pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. Sumner v. Sumner, 186 Ga. 390 , 197 S.E. 833 (1938).

Requirements for estoppel by judgment. - Traditional threshold requirements for application of doctrine of collateral estoppel (estoppel by judgment) are that: (1) the issue to be concluded must be identical to that involved in the prior action; (2) in the prior action the issue must have been "actually litigated;" and (3) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment. If any one of these requirements is lacking, there is no collateral estoppel. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Issue must be the same. - Estoppel by judgment occurs only when issue determined in prior proceeding is the same as that in subsequent proceeding. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

Only ultimate questions concluded by estoppel by judgment. - Judgment or decree is an estoppel to parties thereto and their privies if it relates to same subject matter and decides same question; but if that question came collaterally before the court and was only incidentally considered, judgment or decree is not an estoppel. Evans v. Birge, 11 Ga. 265 (1852).

In order for relitigation of particular question to be estopped by former judgment, question must have been "necessary" to former judgment and have been one of the "ultimate" questions or facts in issue, as opposed to supporting evidentiary or "mediate" question. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967).

Estoppel by judgment on issues actually litigated and determined. - There is estoppel by judgment only as to such matters within scope of previous pleadings as necessarily had to be adjudicated in order for previous judgment to be rendered, or as to such matters within scope of those pleadings which are shown by aliunde proof to have been actually litigated and determined. Harvey v. Wright, 80 Ga. App. 232 , 55 S.E.2d 835 (1949).

There is estoppel by judgment only as to such matters as were necessarily or actually adjudicated in former litigation. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 (1980).

Cause of action may differ. - Distinguishing feature of doctrine of collateral estoppel is that it precludes relitigation in a subsequent action of fact issues actually determined in prior suit, regardless of whether prior determination was based on same cause of action. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Plaintiff is not permitted to split single cause of action so as to seek in successive litigation enforcement of first one remedy and then a second. Massey v. Stephens, 155 Ga. App. 243 , 270 S.E.2d 796 (1980).

Generally, single cause of action with several elements of damage admits of but one action, when there is an identity of subject matter and of parties. Massey v. Stephens, 155 Ga. App. 243 , 270 S.E.2d 796 (1980).

Parties will not be allowed to try same issue twice by multiplying their claims, regardless of fact that they may be able to introduce more evidence on second trial than they did so first. Johnson v. Lovelace, 61 Ga. 62 (1878).

In order to defeat plea of res judicata, plaintiff must allege that the plaintiff did not know all the facts when the former action was begun or why the plaintiff could not then have set them up. Perrin v. Richardson, 142 Ga. 394 , 83 S.E. 102 (1914).

Amendments inadmissible to overturn judgments. - Effect of final judgment cannot be avoided by showing cause against it under guise of amendment to the pleadings; amendments are admissible to uphold judgments, but not to overturn them. Goldsmith v. Georgia R.R., 62 Ga. 542 (1879).

New defenses not available in seeking to set aside judgment. - When defendant is served, appears, and pleads in original suit and verdict and judgment are rendered against the defendant, the defendant cannot, upon motion to vacate judgment, urge matters of defense which could have been put in issue in original suit. Hardwick v. Hatfield, 30 Ga. App. 760 , 119 S.E. 430 , cert. denied, 30 Ga. App. 801 (1923).

Prior judgment cannot be avoided by slight differences in pleadings in second petition. Hill v. Cox, 151 Ga. 599 , 107 S.E. 850 (1921); Standard Steel Works Co. v. Williams, 158 Ga. 434 , 124 S.E. 21 (1924).

Allegations of different grounds of negligence irrelevant. - Judgment sustaining general demurrer (now motion to dismiss) to petition brought to recover damages caused by alleged negligence of defendant will bar second suit by same plaintiff against same defendant for same alleged cause of action, despite fact that grounds of negligence upon which second petition is based are different from those embraced in first suit. Owens v. Williams, 87 Ga. App. 238 , 73 S.E.2d 512 (1952).

Additional relief sought in second petition for injunction will not defeat plea of res adjudicata. Gunn v. James, 120 Ga. 482 , 48 S.E. 148 (1904); Coleman v. Fields, 142 Ga. 205 , 82 S.E. 529 (1914).

Cause for wrongful death distinct from cause for pain and suffering. - Cause of action for wrongful death available to wife's survivors is a separate and distinct cause of action from that of wife for her pain and suffering, and prior recovery in behalf of husband and minor children for full value of life of wife does not constitute a bar to subsequent action by administrator of wife's estate to recover for her pain and suffering. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232 , 104 S.E.2d 208 (1958).

Spouse's action for loss of consortium due to injuries to the spouse is part of single cause of action for personal injury and property damage when all elements of damage arise from single occurrence. Pekrol v. Collins, 122 Ga. App. 642 , 178 S.E. 294 (1970).

Settlement of property damage as bar to personal injury action. - Single wrongful or negligent act which injures both one's person and property gives but a single cause of action, and settlement of property damages will, when pled, bar an action on account of injuries to the person when both items of damage are result of single occurrence. Pekrol v. Collins, 122 Ga. App. 642 , 178 S.E.2d 294 (1970).

When a person sustains personal, physical and property damage from a single wrongful or negligent act, the tort to the person and property constitutes a single cause of action which should be presented for determination in a single action, unless the defendant consents to the splitting of the cause of action. Pekrol v. Collins, 122 Ga. App. 642 , 178 S.E.2d 294 (1970).

Judgment in former action for three installments of year's salary was good defense to second action for remaining months, as to all matters adjudicated. Kelly & Jones Co. v. Moore, 128 Ga. 683 , 58 S.E. 181 (1907).

Plea to jurisdiction in action on running account which has been split and decided adversely to defendant cannot be urged in objection to second action on remainder of account. Johnson v. Klassett, 9 Ga. App. 733 , 72 S.E. 174 (1911).

Conclusiveness of judgment affirmed by appellate court. - When judgment of lower court is affirmed generally by appellate court and another trial refused, such judgment is conclusive between the same parties and their privies as to all matters put in issue or which might have been put in issue in case wherein judgment was rendered. Hixon v. Callaway, 5 Ga. App. 415 , 63 S.E. 518 (1909).

Stay operates as bar to further actions for the same indebtedness between the same parties, and order granting stay amounts to a judgment. Stein Steel & Supply Co. v. Wilkins, 102 Ga. App. 389 , 116 S.E.2d 507 (1960).

Stay because of adjudication of bankruptcy of party, which is neither appealed and reversed nor set aside, has effect of judgment barring further proceedings by plaintiff in the case. Stein Steel & Supply Co. v. Wilkins, 102 Ga. App. 389 , 116 S.E.2d 507 (1960).

Judgments of habeas corpus may be properly pled to subsequent actions. Perry v. McLendon, 62 Ga. 598 (1879).

Previous judgment overruling motion to set aside amounted to adjudication that original judgment could not be set aside for any reason which was or might have been assigned, and rendered a subsequent motion in arrest subject to application of res judicata. Farmer v. Baird, 35 Ga. App. 208 , 132 S.E. 260 (1926).

Voluntary dismissal of truth-in-lending action. - Voluntary dismissal, with prejudice, of defendant bank in action for penalties under federal Truth-In-Lending Act, 15 U.S.C. § 1601 et seeq., merged plaintiffs' entire cause of action for nondisclosures under the Act and barred any subsequent action in this state against seller for the seller's joint liability for failure to make disclosures in the same transaction. Massey v. Stephens, 155 Ga. App. 243 , 270 S.E.2d 796 (1980).

Judgment adjudicating legal or equitable title to land will estop a later inconsistent action in ejectment among the same parties, a later dispossessory proceeding, or other suit touching right to entitlement between the parties. Schoen v. Home Fed. Sav. & Loan Ass'n, 154 Ga. App. 68 , 267 S.E.2d 466 (1980).

Dismissal of cross action on merits. - When court of competent jurisdiction in dismissing cross action, necessarily decides its merits, this decision may be pled in bar of subsequent action between same parties on same subject matter. Mize v. Mize, 80 Ga. App. 441 , 56 S.E.2d 121 (1949).

Failure of third party to protect rights. - When third party who has knowledge of pendency of action and fails to protect the third party's rights, this section will operate as a bar. Latimer v. Irish-American Bank, 119 Ga. 887 , 47 S.E. 322 (1904).

When predecessor in title of defendant was party to action, defendant is a privy in estate and is estopped by decree rendered in former action. Hopkins v. Martin, 153 Ga. 238 , 112 S.E. 117 (1922).

Conclusiveness of judgment on party vouched into court. - When defendant in action of ejectment brought an action over against a warrantor of title and vouched the warrantor into court by giving notice of pendency of the action, judgment rendered therein would be conclusive upon party vouched. Taylor v. Allen, 131 Ga. 416 , 62 S.E. 291 (1908).

Claimant who interposed claim by amendment in action is concluded by adverse judgment. Pollard v. King, 63 Ga. 224 (1879); Garlington v. Fletcher, 111 Ga. 861 , 36 S.E. 920 (1900); McLendon v. Schumate, 128 Ga. 526 , 57 S.E. 886 (1907); Exchange Nat'l Bank v. Covington, 160 Ga. 131 , 127 S.E. 453 (1925).

Since in cases of attachment claim may be interposed either before or after judgment, when claimant, in response to levy of execution in attachment, filed claim to property in hands of garnishee, the claimant was not estopped by previous judgment in favor of plaintiff in attachment against garnishee on the issue tried, on traverse of the claimant's answer, to which such claimant was not a party, nor was the claimant bound merely by reason of fact that during trial of traverse to garnishee's answer, the claimant was physically present but took no part therein. Tarver v. Jones, 34 Ga. App. 716 , 131 S.E. 102 (1925).

Merger of contract and decree for specific performance. - When party to contract seeks to enforce the contract by specific performance and obtains a decree thereon, the contract is merged into the decree; such contract and decree founded upon it will not be set aside at instance of party who took it, in absence of any allegation of fraud, accident, or mistake, or that insolvency had occurred since it was rendered. Cunningham v. Schley, 68 Ga. 105 (1881).

What breaches of contract covered in former action. - When in former action defendant pleaded breach of contract in setoff or recoupment against plaintiff, all breaches of contract up to commencement of former action and amount due complaining party were conclusively presumed to have been included in first action. Chappell v. F.A.D. Andrea, Inc., 47 Ga. App. 816 , 171 S.E. 582 (1933).

There cannot be subsequent actions for breaches of contract which have already occurred prior to commencement of first suit on contract, even though they were not included in first suit. Chappell v. F.A.D. Andrea, Inc., 47 Ga. App. 816 , 171 S.E. 582 (1933).

When state did not avail itself of right to recover principal and interest in former action, it is estopped from setting up claim for interest. Central Bank & Trust Corp. v. State, 139 Ga. 54 , 76 S.E. 587 (1912).

All of series of notes affected by judgment on one or more. - When action is brought by payee of series of notes given for balance of purchase price of item on one or more of such notes and defendant pleads failure of consideration, verdict and judgment in the defendant's favor can be pled as res judicata to suit on other notes of the same series under this section. Puffer Mfg. Co. v. Rivers, 10 Ga. App. 154 , 73 S.E. 20 (1911).

When subject matter of defense to promissory note has been passed upon by court of competent jurisdiction, such judgment, while in force, is conclusive. Freeman v. Bass, 34 Ga. 355 , 89 Am. Dec. 255 (1866).

Question concluded as to property involved in former litigation. - If a question could have been litigated in former controversy between same parties, judgment rendered in that case settles the question as to all property involved in that litigation; but to settle the question as to other property, it must appear that it was actually litigated, not only that it might have been. Sloan v. Price, 84 Ga. 171 , 10 S.E. 601 , 20 Am. St. R. 354 (1890).

Judgment discharging administrator relieves the administrator from further liability to those interested in estate, unless such judgment is set aside either on motion in probate court or by equitable proceeding in superior court. Stanton v. Gailey, 72 Ga. App. 292 , 33 S.E.2d 747 (1945).

Illegal use of architect's plan in constructing different houses. - When subject matter and cause of action of instant action was alleged use of plaintiff architect's plans in construction by defendant of two houses and subject matter of former action was alleged use of one plan in constructing other houses, there was no identity of subject matter or cause of action and trial court erred in sustaining plea of res judicata. Edwards v. Carlton, 98 Ga. App. 230 , 105 S.E.2d 372 (1958).

Prior decree of cotenancy did not estop defendant from applying for partition as no such question was involved in original suit. Roberts v. Federal Land Bank, 180 Ga. 832 , 181 S.E. 180 (1935).

Previous attachment not a bar. - When transferee and holder of title-retention note given for purchase money of machinery files action on note, defendant purchaser cannot set up in bar or in abatement that plaintiff had previously in same court instituted purchase money attachment and a levy had been made on the machinery; however, if judgment is rendered in plaintiff's favor, court should mold judgment so as to give defendant proper credit for any sums realized from sale of property by virtue of attachment proceedings. Hayes v. International Harvester Co. of Am., 52 Ga. App. 328 , 183 S.E. 197 (1935).

Partition not binding on cotenants absent service. - Suit for partition is not a proceeding in rem, nor is final judgment binding by reason of this section on any of the cotenants who are not brought within jurisdiction of court by some service of process, actual or constructive. Childs v. Hayman, 72 Ga. 791 (1884).

Plaintiff was not estopped by judgment rendered in probate court in proceeding to which the plaintiff was not a party, despite fact that the plaintiff appeared as witness therein. McAfee v. Martin, 211 Ga. 14 , 83 S.E.2d 605 (1954).

Subrogee not concluded. - One with right of subrogation accruing before bringing of action in which judgment was rendered is not a privy under this section so as to be concluded by judgment, especially when right of subrogation is claimed on an item of damage expressly excluded from that action. Seaboard Air-Line Ry. v. Insurance Co., 18 Ga. App. 341 , 89 S.E. 438 (1916).

Jury question. - Under this section, issue made by plea of former recovery should be submitted to jury under proper instructions from court as to effect of adjudication pleaded in bar, but when record so pled shows that matter in controversy had been fully determined in former suit, court may dismiss the case on motion. Robinson v. Wilkins, 74 Ga. 47 (1884).

Pendency of Actions

This section prohibits plaintiff from prosecuting two actions in court for same cause and against same party and, if the actions are commenced at different times, pendency of the former shall be a good defense to the latter. Harrison v. Speidel, 244 Ga. 643 , 261 S.E.2d 577 (1979).

Pursuit in two different courts against same defendants on same issues prohibited. - Individual cannot pursue at the same time against same defendant cause of action based upon same subject matter in two different courts, and a plea in second suit of pendency of former suit will cause abatement of second action. Jones v. Rich's, Inc., 81 Ga. App. 841 , 60 S.E.2d 402 (1950).

Pendency of the related actions was good cause for abatement of the instant case because the related actions and the instant case both involved the landowner's alleged rights to title and possession of the same land, the landowner properly asserted the landowner's claims of wrongful foreclosure in the prior pending related actions, and a decision in the landowner's favor on the landowner's wrongful foreclosure claims in the related actions could estop the present dispossessory proceeding. Premium Funding Solutions, LLC v. Metro Atlanta Task Force for the Homeless, Inc., 333 Ga. App. 718 , 776 S.E.2d 504 (2015).

Provided first action not defective. - Pendency of former suit for same cause of action, between same parties, in any court with jurisdiction, constitutes good cause of abatement, provided first action is not so defective as to prevent recovery therein. Moody v. Moody, 193 Ga. 699 , 19 S.E.2d 504 (1942).

Pendency of former suit for same cause of action shall not abate second action if the first action is so defective that no recovery can possibly be had. Dobson v. Truscon Steel Co., 70 Ga. App. 574 , 28 S.E.2d 870 (1944).

First action must be so defective upon its face that legal recovery cannot be had thereon in order to preclude abatement. Jones v. Rich's, Inc., 81 Ga. App. 841 , 60 S.E.2d 402 (1950).

If first action is wholly abortive effort which defendant is not legally called upon to resist, pendency of first suit shall not abate action subsequently filed. Jones v. Rich's, Inc., 81 Ga. App. 841 , 60 S.E.2d 402 (1950).

When it cannot be said that two proceedings arise out of same transaction or that allowing the present action to proceed to trial while the first case is pending on appeal is unnecessary, and consequently oppressive, a plea in abatement is without merit. Cheely v. State, 251 Ga. 685 , 309 S.E.2d 128 (1983).

Common issues but possibility of different ones being raised. - Even though there was a common issue of liability in each of two actions brought by a party, when additional liability issues could be raised in one action, mandatory abatement or dismissal was not authorized. International Telecommunications Exch. Corp. v. MCI Telecommunications Corp., 214 Ga. App. 416 , 448 S.E.2d 71 (1994).

Lack of jurisdiction. - Pendency of former action for same cause of action, between same parties, does not cause abatement of second action, if it appears on the face of the proceedings that first action was instituted in a court with no jurisdiction of the subject matter of the action; in such a case, the nonjurisdiction of that court may be determined by court in which second action was instituted. Cantrell v. Davis, 46 Ga. App. 710 , 169 S.E. 39 (1933).

Identity of cause of action and of parties required. - In order for pendency of former action to be basis of plea in abatement to subsequent action, both must be for same cause of action and between same parties. Latex Filler & Chem. Co. v. Chapman, 139 Ga. App. 382 , 228 S.E.2d 312 (1976).

Trial court erred by finding that two pending actions brought by a hospital against the Department of Community Health and a competing hospital involved the same cause of action under the prior pending action doctrine, O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) ; although both cases relied on one similar argument, the hospital's petition for judicial review of the final agency decision raised additional issues that could not have been brought in the hospital's earlier declaratory judgment action. Doctors Hosp. of Augusta, LLC v. Dep't of Cmty. Health, 344 Ga. App. 583 , 811 S.E.2d 64 (2018).

Even when causes of action are legally disparate and rest in opposite parties, if they arise out of the same transaction and if the second action would resolve the same issues as the first pending action and would therefore be unnecessary and oppressive, the second action shall abate. Schoen v. Home Fed. Sav. & Loan Ass'n, 154 Ga. App. 68 , 267 S.E.2d 466 (1980).

Filing counter claim permitted. - When basis for wrongful death action brought by a parent arose out of same transaction (automobile collision) as pending original action brought against the parent, in which the parent counterclaimed for the parent's personal injuries and damages, wrongful death complaint would be dismissed without prejudice so that plaintiff could file counterclaim in original action. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90 , 222 S.E.2d 878 (1975).

Priority of pending actions is determined by dates of filing, if service has been effected; service or waiver is essential, but when made it relates back to date of filing, which establishes date action is commenced. Jackson v. Schulman, 142 Ga. App. 625 , 237 S.E.2d 4 (1977).

Time of appeal of first action irrelevant. - If identical actions are filed at different times, pendency of the first is cause for abatement of the second, and whether first action was appealed before or after second was filed is irrelevant. Almand v. Northern Assurance Co., 88 Ga. App. 664 , 77 S.E.2d 321 , rev'd on other grounds, 210 Ga. 243 , 78 S.E.2d 788 (1953).

When defendant files counterclaim after plaintiff voluntarily dismisses action, counterclaim does not keep suit pending so as to authorize abatement of another suit. Swanson v. Holloway, 128 Ga. App. 453 , 197 S.E.2d 151 (1973).

Garnishment and contempt actions may be pursued simultaneously for collection or satisfaction of payments owed under divorce judgment. Herring v. Herring, 138 Ga. App. 145 , 225 S.E.2d 697 (1976).

Pending divorce action no bar to interlocutory hearing. - Proof of pendency of action for divorce between parties does not operate to prevent judge on interlocutory hearing from making award of temporary alimony and custody of children pending litigation. Moody v. Moody, 193 Ga. 699 , 19 S.E.2d 504 (1942).

Suit to collect on note and suit for foreclosure upon personal property securing payment of same note are different causes of action, and pendency of former does not serve to abate latter. Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94 , 222 S.E.2d 881 (1975).

Prior pending wrongful foreclosure suit did not require dismissal of condemnation suit. - Prior pending wrongful foreclosure action did not require the abatement and dismissal of a bank's application for confirmation under O.C.G.A. § 44-14-161 because the confirmation proceeding did not involve the same cause of action as the wrongful foreclosure suit, but was instead a special statutory proceeding and not a complaint which initiated a civil action or suit. BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759 , 670 S.E.2d 210 (2008).

Owner's action for damages not a bar to condemnation proceedings. - Pendency of action for damages brought against two counties for wrongful taking and appropriation of right of way over plaintiffs' lands does not prevent subsequent proceeding brought by state to condemn the land for same purposes. Cook v. State Hwy. Bd., 162 Ga. 84 , 132 S.E. 902 (1926).

Dismissal of action not justified. - Dismissal of an action by foreign corporations against a manufacturer on the basis of a prior pending action in the courts of another state was inappropriate in consideration of the provisions of O.C.G.A. §§ 9-2-5 , 9-2-44 , and 9-2-45 . Flagg Energy Dev. Corp. v. GMC, 223 Ga. App. 259 , 477 S.E.2d 402 (1996).

Parol Evidence

Application of subsection (b). - Subsection (b) of this section has no application to a proper case when a plea of res judicata is filed. Kennedy v. McCarthy, 73 Ga. 346 (1884).

Subsection (b) of this section governs those cases where a judgment is pled as an estoppel, and both parties are entitled to the benefit of this rule. Irvin v. Spratlin, 127 Ga. 240 , 55 S.E.2d 1037 , 9 Ann. Cas. 341 (1906).

Defendant may prove by parol evidence that court had no jurisdiction of former case. Dix v. Dix, 132 Ga. 630 , 64 S.E. 790 (1909).

When record shows uncertainty whether same matters have been litigated in the former action or whether the judgment rendered is conclusive upon present issues, parol evidence is admissible. Mortgage Bond & Trust Co. v. Colonial Hill Co., 175 Ga. 150 , 165 S.E. 25 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, § 6 et seq. 29A Am. Jur. 2d, Evidence, §§ 910, 917, 934, 1002.

C.J.S. - 1 C.J.S., Abatement and Revival, § 21. 32A C.J.S., Evidence, §§ 1132, 1133, 1146.

ALR. - Application of doctrine of res judicata to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 2 A.L.R. 534 ; 142 A.L.R. 905 .

Judgment against claim based on original form of indebtedness as res judicata as to claim based on new or substituted obligation, 4 A.L.R. 1173 .

Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306 .

Lis pendens: protection during time allowed for appeal, writ of error, or motion for new trial, 10 A.L.R. 415 .

Judgment on claim as bar to action to recover amount of payment which was not litigated in previous action, 13 A.L.R. 1151 .

Plea of pendency of former action as affecting right of pleader to avail himself of objections to the former action, 32 A.L.R. 1339 .

Judgment in action on commercial paper as affecting party to the paper who was not a party to the suit, 34 A.L.R. 152 .

Action or suit as abating mandamus proceeding or vice versa, 37 A.L.R. 1432 .

Judgment for rent for particular period as bar to action for rent for subsequent period, 42 A.L.R. 128 .

Foreign judgment based upon or which fails to give effect to a judgment previously rendered at the forum or in a third jurisdiction, 44 A.L.R. 457 ; 53 A.L.R. 1146 .

Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806 .

Judgment in action for death as a bar to an action for the same death in another jurisdiction or under another statute, 53 A.L.R. 1275 .

Judgment in action or proceeding involving an installment of an assessment for a public improvement as res judicata as regards other installments of assessments, 74 A.L.R. 880 .

Judgment in rem or quasi in rem upon constructive service against nonresident as res judicata as regards personal rights, 89 A.L.R. 1102 .

Relation between survivability of cause of action and abatability of pending action, 92 A.L.R. 956 .

Judgment as res judicata of usury notwithstanding question as to usury was not raised, 98 A.L.R. 1027 .

Decree in suit by judgment creditor to set aside conveyance in fraud of creditors as bar to another suit for same purpose in respect of another conveyance, 108 A.L.R. 699 .

Plea of abatement because of pendency of prior action as affected by termination of that action, 118 A.L.R. 1477 .

Pleading waiver, estoppel, and res judicata, 120 A.L.R. 8 .

Res judicata as regards decisions or awards under workmen's compensation acts, 122 A.L.R. 550 .

Judgment in action by third person against insured as res judicata in favor of indemnity or liability insurer which was not a nominal party, 123 A.L.R. 708 .

Conclusiveness, as to negligence or contributory negligence, of judgment in death action, in subsequent action between defendant in the death action and statutory beneficiary of that action, as affected by objection of lack of identity of parties, 125 A.L.R. 908 .

Judgment in action by or against corporation as res judicata in action by or against stockholder or officer of corporation, 129 A.L.R. 1041 .

Doctrine of res judicata in income tax cases, 130 A.L.R. 374 ; 140 A.L.R. 797 .

Judgment in action growing out of accident as res judicata, as to negligence or contributory negligence, in later action growing out of same accident by or against one not a party to earlier action, 133 A.L.R. 181 ; 23 A.L.R.2d 710.

Necessity, as condition of effectiveness of express finding on a matter in issue to prevent relitigation of question in later case, that judgment in former action shall have rested thereon, 133 A.L.R. 840 .

Ruling on creditor's claim in bankruptcy as res judicata in subsequent proceeding by trustee to recover voidable preference or transfer, 134 A.L.R. 1191 ; 165 A.L.R. 1413 .

Judgment as res judicata or conclusive as to party's attorney who was not himself a party, 137 A.L.R. 586 .

Decree in suit for separation as res judicata in subsequent suit for divorce or annulment, 138 A.L.R. 346 ; 90 A.L.R.2d 745.

Application of rule against splitting cause of action, or of doctrine of res judicata, to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 142 A.L.R. 905 .

Judgment as res judicata as to whether insured is "permanently disabled" within contemplation of insurance policy, 142 A.L.R. 1170 .

Judgment in partition as res judicata, 144 A.L.R. 9 .

Judgment in tax cases in respect of one period as res judicata in respect of another period, 150 A.L.R. 5 ; 162 A.L.R. 1204 .

Privity between cotenants for purposes of doctrine of res judicata, 169 A.L.R. 179 .

Judgment in suit for cancellation of restrictive covenant on ground of change in neighborhood as res judicata in suit for injunction against enforcement of covenant on that ground, and vice versa, 10 A.L.R.2d 357.

Extent to which principles of res judicata are applicable to judgments in actions for declaratory relief, 10 A.L.R.2d 782.

Judgment avoiding indemnity or liability policy for fraud as barring recovery from insurer by or on behalf of third person, 18 A.L.R.2d 891.

Decree granting or refusing injunction as res judicata in action for damages in relation to matter concerning which injunction was asked in first suit, 26 A.L.R.2d 446.

Pendency of prior action for absolute or limited divorce between same spouses in same jurisdiction as precluding subsequent action of like nature, 31 A.L.R.2d 442.

Divorce decree as res judicata in independent action involving property settlement agreement, 32 A.L.R.2d 1145.

Acquittal on homicide charge as bar to subsequent prosecution for assault and battery, or vice versa, 37 A.L.R.2d 1068.

Abatement on ground of prior pending action in same jurisdiction as affected by loss by plaintiff in second action of advantage gained therein by attachment, garnishment, or like process, 40 A.L.R.2d 1111.

Applicability of res judicata to decrees or judgments in adoption proceedings, 52 A.L.R.2d 406.

Dismissal of civil action for want of prosecution as res judicata, 54 A.L.R.2d 473.

Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.

Judgment determining question of coverage of automobile liability policy as between insurer and one claiming to be insured as res judicata in subsequent action by injured person against insurer, 69 A.L.R.2d 858.

Judgment in action by or against stockholder or corporate officer as res judicata in action by or against corporation, 81 A.L.R.2d 1323.

Res judicata as affected by limitation of jurisdiction of court which rendered judgment, 83 A.L.R.2d 977.

Raising res judicata by motion for summary judgment under Federal Rule 56 and similar state statutes or rules, 95 A.L.R.2d 648.

Conviction or acquittal in previous criminal case as bar to revocation or suspension of driver's license on same factual charges, 96 A.L.R.2d 612.

Circumstances under which court may abate a prior action and permit parties to proceed in subsequent action, 6 A.L.R.3d 468.

Modern status of doctrine of res judicata in criminal cases, 9 A.L.R.3d 203.

Judgment in spouse's action for personal injuries as binding, as regards loss of consortium and similar resulting damage, upon other spouse not a party to the action, 12 A.L.R.3d 933.

Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400.

Judgment in action on express contract for labor or services as precluding, as a matter of res judicata, subsequent action on implied contract (quantum meruit) or vice versa, 35 A.L.R.3d 874.

Decree allowing or denying specific performance of contract as precluding, as a matter of res judicata, subsequent action for money damages for breach, 38 A.L.R.3d 323.

Judgment against parents in action for loss of minor's services as precluding minor's action for personal injuries, 41 A.L.R.3d 536.

When does jeopardy attach in a nonjury trial?, 49 A.L.R.3d 1039.

Judgment in death action as precluding subsequent personal injury action by potential beneficiary of death action, or vice versa, 94 A.L.R.3d 676.

9-2-45. No abatement for pendency of action in another state.

The pendency of a prior action in another state shall not abate an action between the same parties for the same cause in this state.

(Civil Code 1895, § 3738; Civil Code 1910, § 4332; Code 1933, § 3-602.)

History of section. - This Code section is derived from the decision in Chattanooga, R. & C.R.R. v. Jackson, 86 Ga. 676 , 13 S.E. 109 (1891).

JUDICIAL DECISIONS

Parties to affected actions. - This section applies when the second action is instituted by defendant in the first action, as well as when plaintiff in both actions is the same person. Ambursen Hydraulic Constr. Co. v. Northern Contracting Co., 140 Ga. 1 , 78 S.E. 340 , 47 L.R.A. (n.s.) 684 (1913).

Alimony action not precluded by pending out-of-state divorce action. - Under former Code 1933, § 30-213 (see now O.C.G.A. § 19-6-10 ), the legislature did not intend to preclude maintenance of alimony action when a divorce action was pending in another state. Ward v. Ward, 223 Ga. 868 , 159 S.E.2d 81 (1968).

Texas divorce decree not affected by action pending in this state. - Mere fact that husband had a divorce action pending in court in this state when the husband procured a Texas divorce is not sufficient to rebut prima facie validity of the Texas decree, since whether or not there was an action pending in this state for the same cause was not a jurisdictional fact in the case in Texas. Meeks v. Meeks, 209 Ga. 588 , 74 S.E.2d 861 (1953).

Dismissal of action not justified. - Dismissal of an action by foreign corporations against a manufacturer on the basis of a prior pending action in the courts of another state was inappropriate in consideration of the provisions of O.C.G.A. §§ 9-2-5 , 9-2-44 , and 9-2-45 . Flagg Energy Dev. Corp. v. GMC, 223 Ga. App. 259 , 477 S.E.2d 402 (1996).

Cited in Harmon v. Wiggins, 48 Ga. App. 469 , 172 S.E. 847 (1934); Lumpkin v. Lumpkin, 173 Ga. App. 755 , 328 S.E.2d 389 (1985); Atlantic Wood Indus., Inc. v. Lumbermen's Underwriting Alliance, 196 Ga. App. 503 , 396 S.E.2d 541 (1990).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, §§ 11, 18.

C.J.S. - 1 C.J.S., Abatement and Revival, § 70 et seq.

ALR. - Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306 .

Action or suit as abating mandamus proceeding or vice versa, 37 A.L.R. 1432 .

Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806 .

Res judicata as available in support of demurrer, 101 A.L.R. 1325 .

Pendency of criminal prosecution as ground for continuance or postponement of civil action involving facts or transactions upon which prosecution is predicated, 123 A.L.R. 1453 .

9-2-46. Institution of action on same cause in other state; setting case in this state; postponement limited.

  1. Whenever it is made to appear to the judge of any court that any party to a case pending in the court, after the case has been commenced, has instituted proceedings in any court of any other state involving the same controversy or cause of action, or in which the judgment which might be rendered in the other state might be pleadable in the case in this state as affecting the relief sought, it shall be the duty of the judge of the court in which the case is pending to set the case specially and ahead of all other business for trial as the first case at the next ensuing term of the court, except for other cases having precedence for the same reason.
  2. No case so assigned for trial shall be continued or postponed for more than 30 days for any cause whatsoever at the instance of the party who has instituted the case or proceedings in the foreign state. The case may be postponed from day to day for good cause for not exceeding 30 days at the instance of such party, but after being postponed for the 30 days it shall not be further postponed at his instance. If the term of court ends within the 30 days and the case has not been continued for the term, it shall stand for trial as the first case at the next ensuing term. This Code section shall not be applied so as to set any case for trial before proper times have elapsed for notice, the filing of defensive pleadings, and discovery. Proper time limits for discovery shall be in the discretion of the judge.

    (Ga. L. 1922, p. 96, §§ 1, 2; Code 1933, §§ 3-603, 3-604.)

JUDICIAL DECISIONS

Texas divorce decree not affected by action pending in this state. - Mere fact that husband had a divorce action pending in court in this state when the husband procured a Texas divorce is not sufficient to rebut prima facie validity of the Texas decree, since whether or not there was an action pending in this state for the same cause was not a jurisdictional fact in the case in Texas. Meeks v. Meeks, 209 Ga. 588 , 74 S.E.2d 861 (1953).

Preference for first-filed rule. - Fact that former employee lied to the former employer in order to file suit over non-competition agreement in Georgia first did not require a conclusion that the district court abused the court's discretion in entertaining the employee's first-filed declaratory judgment action under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., especially since O.C.G.A. § 9-2-46(a) evidenced Georgia's favoritism for the first-filed rule. Manuel v. Convergys Corp., 430 F.3d 1132 (11th Cir. 2005).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, § 11. 20 Am. Jur. 2d, Courts, § 82.

C.J.S. - 1 C.J.S., Abatement and Revival, § 70 et seq. 17 C.J.S., Continuances, § 115. 21 C.J.S., Courts, §§ 170, 179.

9-2-47. Precedence of first filed informer's action; abatement of others.

In the case of actions by informers to recover any fine, forfeiture, or penalty, the first filed in the clerk's office shall have precedence for the same cause of action and the latter filed actions shall abate.

(Orig. Code 1863, § 2837; Code 1868, § 2845; Code 1873, § 2896; Code 1882, § 2896; Civil Code 1895, § 3740; Civil Code 1910, § 4334; Code 1933, § 3-606.)

Cross references. - Time limitations on bringing of actions by informers to recover fine, forfeiture, or penalty, § 9-3-28 .

JUDICIAL DECISIONS

Cited in Heath v. Bates, 70 Ga. 633 (1883).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, § 12 et seq.

C.J.S. - 1 C.J.S., Abatement and Revival, §§ 24, 44 et seq.

ALR. - Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306 .

Action or suit as abating mandamus proceeding or vice versa, 37 A.L.R. 1432 .

Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806 .

ARTICLE 4 DISMISSAL AND RENEWAL

9-2-60. Dismissal for want of prosecution; costs; recommencement within six months.

  1. For the purposes of this Code section, an order of continuance will be deemed an order and the word "proceedings" shall be held to include, but shall not be limited to, an appeal from an award of assessors or a special master in a condemnation proceeding.
  2. Any action or other proceeding filed in any of the courts of this state 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.
  3. When an action is dismissed under this Code section, 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.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 342, §§ 1, 2; Ga. L. 1967, p. 557, § 1; Ga. L. 1984, p. 597, § 1.)

Law reviews. - For article comparing sections of the Georgia Civil Practice Act (Ch. 11 of this title) with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article surveying Georgia cases in the area of trial practice and procedure from June 1977 through May 1978, see 30 Mercer L. Rev. 239 (1978). For annual survey of trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality. - Automatic dismissal provision of O.C.G.A. § 9-2-60 is a reasonable procedural rule and does not violate due process. Georgia Dep't of Medical Assistance v. Columbia Convalescent Ctr., 265 Ga. 638 , 458 S.E.2d 635 (1995).

This section is declaration of legislature that it is in the public interest to remove from court records litigation which has been inactive for a period of five years. Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 (1964); Berry v. Siskin, 128 Ga. App. 3 , 195 S.E.2d 255 (1973).

Legislative intent to reduce cluttered dockets. - This section was passed by the legislature in recognition of the fact that courts of this state had long been cluttered by a great number of cases which to all intents and purposes had been abandoned by both parties and in many cases settled without clearing the docket. Lewis v. Price, 104 Ga. App. 473 , 122 S.E.2d 129 (1961).

Purpose of this section is to prevent cluttering of court records with unresolved and inactive litigation. Freeman v. Ehlers, 108 Ga. App. 640 , 134 S.E.2d 530 (1963).

Rule nisi filed for the purpose of securing a continuance was a "rule" and not an "order" within the meaning of O.C.G.A. § 9-2-60 . Beck v. Dean, 177 Ga. App. 144 , 338 S.E.2d 693 (1985).

This section serves dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation and protecting litigants from dilatory counsel. Lewis v. Price, 104 Ga. App. 473 , 122 S.E.2d 129 (1961); Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 (1964); Berry v. Siskin, 128 Ga. App. 3 , 195 S.E.2d 255 (1973); Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847 , 212 S.E.2d 451 (1975); Jefferson v. Ross, 250 Ga. 817 , 301 S.E.2d 268 (1983).

Equities of parties. - There being no "express provision" in the statute defining the words "written" and "order," the equities of the parties may be considered in order to effect the true purpose of O.C.G.A. § 9-2-60 . Republic Claims Serv. Co. v. Hoyal, 210 Ga. App. 88 , 435 S.E.2d 612 (1993), rev'd on other grounds, 264 Ga. 127 , 441 S.E.2d 755 (1994).

Operation of O.C.G.A. § 9-2-60 cannot be waived by the parties. Department of Medical Assistance v. Columbia Convalescent Ctr., Inc., 203 Ga. App. 535 , 417 S.E.2d 195 (1992), cert. denied, 203 Ga. App. 535 , 417 S.E.2d 195 (1992).

No power to reinstate dismissed proceeding. - Trial court does not have the power to reinstate a proceeding that, pursuant to subsection (b) of O.C.G.A. § 9-2-60 , has been automatically dismissed by operation of law. Earp v. Kranats, 184 Ga. App. 316 , 361 S.E.2d 217 (1987).

Civil Practice Act (Ch. 11 of this title) did not repeal this section expressly or by implication. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847 , 212 S.E.2d 451 (1975).

Section inapplicable when default judgment entered. - This section was inapplicable to action in which for five years a default judgment was allowed to stand as such action was one in which an apparent final judgment had been entered, even though a later judgment was set aside for lack of service. Lewis v. Price, 104 Ga. App. 473 , 122 S.E.2d 129 (1961).

Provisions of this section are mandatory. - See Bowen v. Morrison, 103 Ga. App. 632 , 120 S.E.2d 57 (1961); Freeman v. Ehlers, 108 Ga. App. 640 , 134 S.E.2d 530 (1963); Norton v. Brady, 129 Ga. App. 753 , 201 S.E.2d 188 (1973).

O.C.G.A. § 9-2-60 provides for automatic dismissal when no written order is taken for a period of five years; this is mandatory and dismissal occurs by operation of law. Loftin v. Prudential Property & Cas. Ins. Co., 193 Ga. App. 514 , 388 S.E.2d 525 (1989).

O.C.G.A. § 9-2-60 only mandates that a written order be taken. Plaintiff need not initiate the process but only insure that an order is entered before five years elapse. Loftin v. Prudential Property & Cas. Ins. Co., 193 Ga. App. 514 , 388 S.E.2d 525 (1989).

Operation of this section cannot be waived by party litigant. Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 (1964).

Agreement between counsel to continue a case, entered in record prior to lapse of five years, was not sufficient to avoid mandatory dismissal provisions of Ga. L. 1966, p. 609, § 41 and Ga. L. 1967, p. 557, § 1 (see now O.C.G.A. §§ 9-11-41 and 9-2-60 ), as plaintiffs had the duty to obtain a written order of continuance from court and enter it in record. Harris v. Moody, 144 Ga. App. 656 , 242 S.E.2d 321 (1978).

Fact that one defendant died would not prevent dismissal. Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 (1964).

Granting leave of absence to counsel constituted "order". - Unopposed grant of a ten-day leave of absence to third-party defendant's counsel constituted an order within the meaning of O.C.G.A. § 9-2-60 . Loftin v. Prudential Property & Cas. Ins. Co., 193 Ga. App. 514 , 388 S.E.2d 525 (1989).

Inactive list placement order within meaning of subsection (b). - It is not necessary for an order to advance or resolve a litigation matter for the order to fall within the meaning of subsection (b) of O.C.G.A. § 9-2-60 , as an order granting a continuance or any order that would delay the resolution of the pending litigation will qualify. Tillett Bros. Constr. Co. v. DOT, 210 Ga. App. 84 , 435 S.E.2d 241 (1993).

Order issued by the court in response to plaintiff's unopposed motion to stay discovery, signed by the trial judge and entered in the records of the court, placing an action on the "inactive list," was a written order within the meaning of subsection (b) of O.C.G.A. § 9-2-60 . DOT v. Tillett Bros. Constr. Co., 264 Ga. 219 , 443 S.E.2d 610 (1994), overruled on other grounds, Zepp v. Brannen, 283 Ga. 395 , 658 S.E.2d 567 (2008).

Effect of ex parte restraining order on operation of section. - Automatic dismissal by reason of this section would not be affected or prevented by fact that when the case was originally filed the court granted an ex parte restraining order until further order of the court. Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 (1964).

Any action of court clerk in marking case dismissed is ministerial as dismissal is automatic on expiration of five years. Norton v. Brady, 129 Ga. App. 753 , 201 S.E.2d 188 (1973).

Role of clerk of court. - When an action is pending, with no written order taken therein for over five years, it is automatically dismissed by operation of law, and action of the clerk of court in entering order of dismissal thereon is a purely ministerial act. Freeman v. Ehlers, 108 Ga. App. 640 , 134 S.E.2d 530 (1963).

Party asserting this section will not be estopped simply because it might seem unfair to allow that party to go to trial and only assert this section after the party has lost. Salter v. Chatham County, 136 Ga. App. 914 , 222 S.E.2d 638 (1975).

This section is not a statute of limitations as to cause of action or right to again bring a dismissed complaint. Harris v. United States Fid. & Guar. Co., 134 Ga. App. 739 , 216 S.E.2d 127 (1975).

Failure to reduce defendant's default to judgment. - Since the defendant failed to answer and was in default, but judgment was not entered for more than five years, the case stood as if a jury verdict had been returned and was not subject to dismissal under the five-year rule. Faircloth v. Cox Broadcasting Corp., 169 Ga. App. 914 , 315 S.E.2d 434 (1984).

Exception based on "manifest injustice". - Since the trial court's order revoking the grant of a continuance and dismissing a complaint was entered some three years after the entry of the order granting the continuance - although after the expiration of over five years from the last written order prior to the continuance order - it was obvious that "manifest injustice" would result if that order revoking the continuance was affirmed, even though the continuation order had been entered in the absence of a written motion and without notice. Simmerson v. Blanks, 183 Ga. App. 863 , 360 S.E.2d 422 , cert. denied, 183 Ga. App. 907 , 360 S.E.2d 422 (1987).

Waiver. - Operation of the mandatory dismissal provision of subsection (b) of O.C.G.A. § 9-2-60 cannot be waived by a party litigant. Bainbridge & Assocs. v. Johnson, 183 Ga. App. 784 , 360 S.E.2d 273 (1987).

Case properly dismissed. - Individual's case against an employee of a condominium association was automatically dismissed under the five-year rule of O.C.G.A. § 9-2-60(b) , even though the individual had obtained a directed verdict on liability, had filed a motion for a leave of absence, and had secured a date for a hearing on damages. Ogundele v. Camelot Club Condo. Ass'n, 268 Ga. App. 400 , 602 S.E.2d 138 (2004).

Trial court properly dismissed a party's counterclaim for failure to prosecute under O.C.G.A. §§ 9-2-60(b) and 9-11-41(e) . It was undisputed that there had been no written order entered in the case for a period of over five years; even if there was evidence supporting the party's claim that the party had attempted to have the case placed on the trial calendar, the case the party relied upon had been reversed; and it had been held that the automatic dismissal statutes did not violate due process. Roberts v. Eayrs, 297 Ga. App. 821 , 678 S.E.2d 535 (2009).

Because no written order was entered in the parents' wrongful death action for five years, pursuant to O.C.G.A. § 9-2-60(b) , the action was dismissed by operation of law; therefore, the trial court's memorialization of the automatic dismissal resulting from that fact was not erroneous. Cornelius v. Morris Brown College, 299 Ga. App. 83 , 681 S.E.2d 730 (2009).

Trial court did not err in dismissing a condemnation case for lack of prosecution pursuant to O.C.G.A. § 9-2-60(b) because the last qualifying order entered in the case was the certificate of immediate review signed by the trial court and entered on the trial court's records on April 7, 2004, which was two months before the owner filed the owner's motion under Ga. Unif. Super. Ct. R. 7.1 to have the matter placed on the trial court's next available pretrial calendar to address the notice of appeal challenging the amount of compensation. If the owner wished to further litigate the owner's claims, the owner had ample time to obtain a trial court order that would have allowed that, but the owner failed to do so. Windsor v. City of Atlanta, 287 Ga. 334 , 695 S.E.2d 576 (2010).

Dismissal erroneously granted. - Trial court erroneously dismissed a litigant's petition for a writ of mandamus, and erroneously relied on dicta, in finding that orders setting a pre-trial conference in the underlying medical malpractice action were merely "housekeeping or administrative orders" that did not suspend the running of the five-year period under O.C.G.A. §§ 9-2-60(b) and 9-11-41(e) . Instead, such orders tolled the running of the five-year rule if it was in writing, signed by the trial judge, and properly entered in the records of the trial court. Zepp v. Brannen, 283 Ga. 395 , 658 S.E.2d 567 (2008).

Trial court erred by dismissing a father's contempt action because the final consent order had not been entered within the five-year rule under O.C.G.A. § 9-2-60(b) because the legitimation, custody, and support matter had been resolved by consent and all that remained was entry of the order; thus, the case presented an exception to the five-year rule. Ga. Dep't of Human Servs. v. Patton, 322 Ga. App. 333 , 744 S.E.2d 854 (2013).

Civil renewal provisions apply in habeas corpus proceedings. - O.C.G.A. § 9-14-42(c) was not a statute of repose and not an absolute bar to the refiling of a habeas corpus petition, and therefore, was not in conflict with the provisions of O.C.G.A. §§ 9-2-60(b) and (c) and 9-11-41(e) , which allowed for the renewal of civil actions after dismissal. Therefore, the habeas court's dismissal of a petition as untimely was reversed. Phagan v. State, 287 Ga. 856 , 700 S.E.2d 589 (2010).

Cited in Friedman v. Theofilos, 102 Ga. App. 304 , 115 S.E.2d 598 (1960); State Hwy. Dep't v. Hester, 112 Ga. App. 51 , 143 S.E.2d 658 (1965); City of Chamblee v. Village of N. Atlanta, 217 Ga. 517 , 123 S.E.2d 663 (1962); Burgess v. State, 221 Ga. 586 , 146 S.E.2d 288 (1965); Butler v. Claxton, 221 Ga. 620 , 146 S.E.2d 763 (1966); Bridger v. Bracewell, 222 Ga. 856 , 152 S.E.2d 839 (1967); Hodges v. Libbey, 120 Ga. App. 246 , 170 S.E.2d 37 (1969); Milam v. Mojonnier Bros. Co., 135 Ga. App. 208 , 217 S.E.2d 355 (1975); Majors v. Lewis, 135 Ga. App. 420 , 218 S.E.2d 130 (1975); Jernigan v. Collier, 234 Ga. 837 , 218 S.E.2d 556 (1975); Tarpley v. Hawkins, 144 Ga. App. 598 , 241 S.E.2d 480 (1978); Dehco, Inc. v. State Hwy. Dep't, 147 Ga. App. 476 , 249 S.E.2d 282 (1978); Kessler v. Liberty Mut. Ins. Co., 157 Ga. App. 287 , 277 S.E.2d 257 (1981); Ross v. Ross, 159 Ga. App. 144 , 282 S.E.2d 759 (1981); Couch v. Wallace, 249 Ga. 568 , 292 S.E.2d 405 (1982); Stone v. Green, 163 Ga. App. 18 , 293 S.E.2d 506 (1982); Henry v. Department of Transp., 255 Ga. 467 , 339 S.E.2d 715 (1986); Pierce v. Cessna Aircraft Co., 179 Ga. App. 549 , 347 S.E.2d 261 (1986); Adams v. Cobb County, 184 Ga. App. 879 , 363 S.E.2d 260 (1987); Nixson v. Chris Leasing, Inc., 185 Ga. App. 548 , 365 S.E.2d 135 (1988); DOT v. Samuels, 185 Ga. App. 871 , 366 S.E.2d 181 (1988); In the Matter of Leslie, 300 Ga. 774 , 798 S.E.2d 221 (2017).

Timing

Intention of legislature in enacting 1967 version of this section was to make five-year bar binding upon all court proceedings, not limited to suits and specifically including condemnations. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847 , 212 S.E.2d 451 (1975).

Impact of 1967 amendment. - Legislature passed the 1967 version of this section to correct the situation created by case law holding that the five-year bar did not apply to appeal pending in superior court from award of assessors in condemnation proceeding so as to include condemnation proceedings within the five-year rule. Berry v. Siskin, 128 Ga. App. 3 , 195 S.E.2d 255 (1973).

Action refiled more than six months after automatic dismissal was untimely. - Injured party's lawsuit against a business was automatically dismissed for want of prosecution, pursuant to O.C.G.A. § 9-11-41(e) , five years after the lawsuit was filed, not on the date the trial court entered an order confirming the fact that the lawsuit was dismissed. Therefore, the trial court properly granted the business's motion for summary judgment after the injured party refiled a lawsuit because the injured party refiled that lawsuit more than six months after the lawsuit was automatically dismissed. Brown v. Kroger Co., 278 Ga. 65 , 597 S.E.2d 382 (2004).

As the plaintiff failed to show that any action in the original suit filed, within the meanings of O.C.G.A. §§ 9-2-60 and 9-11-41(e) , occurred to bar dismissal of the suit, and failed to timely file a renewal action, the renewal action was properly dismissed. Nelson v. Haugabrook, 282 Ga. App. 399 , 638 S.E.2d 840 (2006).

Five-year rule was intended to prevent long delays before trial, not to facilitate such delays. Jefferson v. Ross, 250 Ga. 817 , 301 S.E.2d 268 (1983).

Statutory five-year period does not run during time case in federal court. - Although dismissal for want of prosecution is automatic on expiration of five years, the statutory five-year period does not run during the time the case is in federal court. When an action in a state court is removed to a federal district court, the jurisdiction of the state court is suspended until the case is remanded to the state court, at which time the case resumes the status it occupied at the time of the removal. Southern Bell Tel. & Tel. Co. v. Perry, 168 Ga. App. 387 , 308 S.E.2d 848 (1983); Strauss Fuchs Org., Inc. v. LaFitte Invs., Ltd., 177 Ga. App. 891 , 341 S.E.2d 873 (1986).

Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41 ) was neither in conflict with nor contradictory to Ga. L. 1967, p. 557, § 1 (see now O.C.G.A. § 9-2-60 ); the statutes reasonably stand together by recognizing that Ga. L. 1967, p. 557, § 1 expanded coverage of the five-year nonaction bar. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847 , 212 S.E.2d 451 (1975).

Five-year period of Ga. L. 1953, Nov.-Dec. Sess., p. 342, §§ 1 and 2 (see now O.C.G.A. § 9-2-60 ) is not a limitation within meaning of former Code 1933, §§ 3-803, 3-804, and 3-806 (see now O.C.G.A. §§ 9-3-92 , 9-3-93 , and 9-3-95 ). Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 (1964).

Applicability of § 9-11-6(a) . - Ga. L. 1967, p. 557, § 1 (see now O.C.G.A. § 9-2-60 ) was an applicable statute under the time computation provision of Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6 ), and not a statute of limitations. Georgia Power Co. v. Whitmire, 146 Ga. App. 29 , 245 S.E.2d 324 (1978).

Computation of five-year period. - Orders are not complete until filed or recorded, and five-year period is computed from filing date. Georgia Power Co. v. Whitmire, 146 Ga. App. 29 , 245 S.E.2d 324 (1978).

Five-year period of subsection (b) of O.C.G.A. § 9-2-60 begins to run on the date the complaint is filed, and not on the date defendant's answer is filed. International Longshoremen's Ass'n v. Saunders, 182 Ga. App. 301 , 355 S.E.2d 461 (1987).

Trial court correctly determined that a products liability case had been dismissed by operation of law pursuant to O.C.G.A. § 9-2-60(b) because an order granting the plaintiffs' attorney a leave of absence was improvidently entered in violation of the automatic stay in bankruptcy and was void, and the record affirmatively showed that the case was inactive for a period of five years when the bankruptcy stay was not in place. Jinks v. Eastman Enters., 317 Ga. App. 489 , 731 S.E.2d 378 (2012).

Dismissal is automatic on expiration of five-year period and cannot be waived by a party litigant. Maroska v. Williams, 146 Ga. App. 130 , 245 S.E.2d 470 (1978).

Dismissal of a survivor's wrongful death suit was proper and automatic, when five years had passed after the most recent court order, and no further action was documented thereafter. Tate v. Ga. DOT, 261 Ga. App. 192 , 582 S.E.2d 162 (2003).

Five ad valorem tax appeals were properly dismissed because more than five years had passed since entry of the last order in each of the cases, and the clear language of this provision stated that automatic dismissal applied to "any action or other proceeding," which included appeals from property assessment valuations. Pace Burt, Inc. v. Dougherty County Bd. of Tax Assessors, 305 Ga. App. 111 , 699 S.E.2d 34 (2010).

Trial court did not err in dismissing the action under the five-year rule, O.C.G.A. §§ 9-2-60(b) and 9-11-41(e) , because no written order had been taken in the case for a period of five years and an order authorizing an attorney to withdraw during the five-year period did not toll the time because the order was void since the order was entered in violation of a bankruptcy stay. Miller v. Lomax, 333 Ga. App. 402 , 773 S.E.2d 475 (2015).

Statute of limitations not tolled. - When a Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. action is dismissed for the absence of a written order for a period of five years, the statute of limitations applicable to such actions is not tolled during that five year period. Smith v. Seaboard Sys. R.R., 179 Ga. App. 822 , 348 S.E.2d 97 (1986).

Right to refile within six months. - Under former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61 ), plaintiff may refile an action within six months following automatic dismissal mandated by Ga. L. 1967, p. 557, § 1 or Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-2-60 or O.C.G.A. § 9-11-41 ) when the original action was not barred by the statute of limitations. Berry v. Siskin, 128 Ga. App. 3 , 195 S.E.2d 255 (1973).

When five years have not yet passed since last order was filed in prior action, the prior action is still pending when a plea of pendency is filed. That being so, the pleader is entitled to a judgment in the pleader's favor because the key event is not the entry of an order in the second action but the filing of the defense of pendency. Hammond v. State, 168 Ga. App. 508 , 308 S.E.2d 701 (1983).

Court may enter judgment on jury verdict at any time. - Court of record, in the exercise of its inherent power, has continuing jurisdiction to enter judgment on a jury verdict at any time. Jefferson v. Ross, 250 Ga. 817 , 301 S.E.2d 268 (1983) (overruling Maroska v. Williams, 146 Ga. App. 130 , 245 S.E.2d 470 (1978)).

Effect of settlement during five-year period. - Automatic dismissal requirement of O.C.G.A. § 9-2-60 when no action is taken for a period of five years requires dismissal of a motion to compel settlement, made more than five years after a written order was taken on the case, even though a settlement has been reached during the five years. Stephens v. Stovall & Co., 184 Ga. App. 78 , 360 S.E.2d 638 (1987).

Writing Requirement

In order to avoid automatic dismissal, an order must be written, signed by the trial judge, and properly entered in the records of the trial court by filing it with the clerk. Scott v. DeKalb County Hosp. Auth., 168 Ga. App. 548 , 309 S.E.2d 635 , aff'd, 169 Ga. App. 257 , 312 S.E.2d 154 (1983).

In order to break the running of the five-year dormancy period, the order has to be in writing, signed, and entered. Loftin v. Prudential Property & Cas. Ins. Co., 193 Ga. App. 514 , 388 S.E.2d 525 (1989).

Duty to obtain written continuance or order. - Legislature placed the duty squarely upon plaintiff to obtain a written order of continuance from the court and have the order entered in the record in order to avoid mandatory provisions of this section. Dupriest v. Reese, 104 Ga. App. 805 , 123 S.E.2d 161 (1961).

This section places upon plaintiff who wishes to avoid automatic dismissal of the plaintiff's case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five-year period and to make sure that order is entered in the record. Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 (1964); Norton v. Brady, 129 Ga. App. 753 , 201 S.E.2d 188 (1973); J.F. Barton Contracting Co. v. Southern Ry., 191 Ga. App. 13 , 380 S.E.2d 724 (1989).

Order must be properly entered in records of court to toll five-year period. - As a jury selection notice sent by the trial court to the parties was not stamped by the clerk of court's office as "filed," and there was nothing else in the record to show that the notice was properly entered in the records of the court, the jury selection notice did not meet the requirements for a written order that tolled the five-year dismissal period of O.C.G.A. § 9-2-60(b) . Therefore, the trial court erred in denying the defendants' motion to dismiss. Pilz v. Thibodeau, 293 Ga. App. 532 , 667 S.E.2d 622 (2008).

Continuance must be reduced to writing and entered in record in order to avoid mandatory provisions of this section. Bowen v. Morrison, 103 Ga. App. 632 , 120 S.E.2d 57 (1961); Johnson v. McCauley, 123 Ga. App. 393 , 181 S.E.2d 111 (1971); Georgia Power Co. v. Whitmire, 146 Ga. App. 29 , 245 S.E.2d 324 (1978); Maroska v. Williams, 146 Ga. App. 130 , 245 S.E.2d 470 (1978).

Unsigned entries in a docket sheet indicating continuances did not satisfy the requirements of subsection (b) of O.C.G.A. § 9-2-60 and were not sufficient to preclude dismissal for want of prosecution. Republic Claims Serv. Co. v. Hoyal, 264 Ga. 127 , 441 S.E.2d 755 (1994).

Grant of continuance is an "order"; when it is entered in the docket, it is "written" and has the force of law. Thus, if the court's docket showed several continuances and trial resettings caused by the defendant and the defendant caused further delay by refusing to make an agreed settlement, the action did not have to be dismissed as one in which there had been no written order taken in five years. Republic Claims Serv. Co. v. Hoyal, 210 Ga. App. 88 , 435 S.E.2d 612 (1993), rev'd on other grounds, 264 Ga. 127 , 441 S.E.2d 755 (1994).

It was the duty of a decedent's spouse to obtain a written order from the probate court granting the spouse's petition for year's support. Because the spouse failed to do so, the entire case, not just a caveat to the petition filed by the decedent's child, was automatically dismissed as a matter of law pursuant to O.C.G.A. § 9-2-60(b) five years after the last written order was filed on the spouse's petition. Clark v. Clark, 293 Ga. App. 309 , 667 S.E.2d 103 (2008).

Appellate court order was not a "written order" signed by the trial court within the meaning of subsection (b) of O.C.G.A. § 9-2-60 . Kachwalla v. Byrne, 198 Ga. App. 454 , 402 S.E.2d 74 (1991).

Effect of Dismissal

Section makes dismissal rule applicable to all proceedings. - Ga. L 1967, p. 557, § 1 (see now O.C.G.A. § 9-2-60 ) was supplementary to Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(e) ) in making the five-year dismissal rule applicable to all proceedings in all courts. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847 , 212 S.E.2d 451 (1975).

Notices of attorney's leaves of absences insufficient to avoid application of statute. - Pursuant to O.C.G.A. §§ 9-2-60(b) and 9-11-41(e) , because an individual's negligence suit sat dormant when the trial court failed to enter any orders for eight years, the suit was automatically dismissed for want of prosecution, and the individual could not overcome application of those statutes as notices of leaves of absence filed by the individual's attorney were insufficient to avoid application. Ward v. Swartz, 285 Ga. App. 788 , 648 S.E.2d 114 (2007).

Proceedings after dismissal hereunder null. - After automatic dismissal under this section, the case is no longer pending, and any further action, even trial and verdict, is a mere nullity. Salter v. Chatham County, 136 Ga. App. 914 , 222 S.E.2d 638 (1975).

When case stands automatically dismissed it is completely lifeless for all purposes from date of dismissal, so that if not removed motion to strike it from the docket will lie; date on which automatic dismissal occurs rather than date on which it was physically stricken is controlling. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847 , 212 S.E.2d 451 (1975).

Dismissal under this section is not dismissal deciding merits of the case so as to bar another action upon the same cause of action. Covil v. Stansell, 113 Ga. App. 179 , 147 S.E.2d 479 (1966); Frank Maddox Realty & Mtg., Inc. v. First Nat'l Bank, 196 Ga. App. 114 , 395 S.E.2d 326 (1990).

Nor is dismissal under this section res judicata so as to conclude, adversely to plaintiff, the cause of action itself. City of Chamblee v. Village of N. Atlanta, 217 Ga. 517 , 123 S.E.2d 663 (1962); Frank Maddox Realty & Mtg., Inc. v. First Nat'l Bank, 196 Ga. App. 114 , 395 S.E.2d 326 (1990).

Party may refile after dismissal pursuant to this section, provided the cause of action is not then barred by some statutory limitation or by laches. City of Chamblee v. Village of N. Atlanta, 217 Ga. 517 , 123 S.E.2d 663 (1962).

OPINIONS OF THE ATTORNEY GENERAL

Intent of legislature in passing 1967 version of this section was to expand scope of original provisions. 1970 Op. Att'y Gen. No. 70-138.

This section controls in appeal of condemnation proceedings. - Civil Practice Act (Ch. 11 of this title) is controlling in declaration of method of condemnation, and this section is controlling in appeal from award of assessors or special master. 1970 Op. Att'y Gen. No. 70-138.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Actions, § 3. 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, §§ 76, 78 et seq.

C.J.S. - 27 C.J.S., Dismissal and Nonsuit, § 67 et seq.

ALR. - Construction and application of statutory requirement or rule of court that action should be brought to trial within specified time, 112 A.L.R. 1158 .

Effect of nonsuit, dismissal, or discontinuance of action on previous orders, 11 A.L.R.2d 1407.

Reviving, renewing, or extending judgment by order entered after expiration of statutory limitation period on motion made or proceeding commenced within such period, 52 A.L.R.2d 672.

Illness or death of party, counsel, or witness as excuse for failure to timely prosecute action, 80 A.L.R.2d 1399.

Dismissal of appeal or writ of error for want of prosecution as bar to subsequent appeal, 96 A.L.R.2d 312.

Time when voluntary nonsuit or dismissal may be taken as of right under statute so authorizing at any time before "trial," "commencement of trial," "trial of facts," or the like, 1 A.L.R.3d 711.

What constitutes bringing an action to trial or other activity in case sufficient to avoid dismissal under state statute or court rule requiring such activity within stated time, 32 A.L.R.4th 840.

9-2-61. Renewal of case after dismissal.

  1. When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.
  2. This Code section shall not apply to contracts for the sale of goods covered by Article 2 of Title 11.
  3. The provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.

    (Laws 1847, Cobb's 1851 Digest, p. 569; Ga. L. 1855-56, p. 233, § 33; Code 1863, § 2873; Code 1868, § 2881; Code 1873, § 2932; Code 1882, § 2932; Civil Code 1895, § 3786; Civil Code 1910, § 4381; Code 1933, § 3-808; Ga. L. 1962, p. 156, § 1; Ga. L. 1967, p. 226, § 39; Ga. L. 1985, p. 1446, § 1; Ga. L. 1989, p. 419, § 1; Ga. L. 1990, p. 876, § 1; Ga. L. 1998, p. 862, § 1.)

Cross references. - Dismissal of actions and recommencement within six months, § 9-11-41 .

Editor's notes. - Ga. L. 1998, p. 862, § 4, not codified by the General Assembly, provides that the 1998 amendment was applicable to cases pending on April 10, 1998, or cases dismissed or discontinued after April 10, 1998.

Law reviews. - For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act," see 3 Ga. St. B.J. 383 (1967). For article surveying judicial developments in Georgia's trial practice and procedure laws, see 31 Mercer L. Rev. 249 (1979). For review of 1998 legislation relating to civil practice, see 15 Ga. St. U.L. Rev. 1 (1998). For annual survey article discussing trial practice and procedure, see 51 Mercer L. Rev. 487 (1999). For survey article on trial practice and procedure for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 439 (2003). For annual survey of appellate practice and procedure, see 57 Mercer L. Rev. 35 (2005). For annual survey of insurance law, see 58 Mercer L. Rev. 181 (2006). For article, "What is Reasonable Service?," see 12 Ga. St. B.J. 22 (2007). For annual survey on trial practice and procedure, see 61 Mercer L. Rev. 363 (2009). For annual survey on trial practice and procedure, see 64 Mercer L. Rev. 305 (2012). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015). For annual survey on zoning and land use law, see 69 Mercer L. Rev. 371 (2017).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

As to history of this section, see Clark v. Newsome, 180 Ga. 97 , 178 S.E. 386 , answer conformed to, 50 Ga. App. 591 , 179 S.E. 143 (1935).

Attack on constitutionality not raised at trial. - When a car accident victim voluntarily dismissed the victim's first action and then filed another action based on the same facts in a different court, which action was then dismissed due to the limitations bar, the trial court's later dismissal of the victim's second renewed complaint was proper as the victim had failed to raise a challenge to the constitutionality of O.C.G.A. § 9-2-61 in the trial court and, therefore, it was not reviewable on appeal; as the constitutionality issue was the only one raised on appeal, the trial court's dismissal of the action was held to be proper. Watson v. Frnka, 266 Ga. App. 64 , 596 S.E.2d 187 (2004).

This section is remedial and should be liberally construed. Cox v. Berry, 13 Ga. 306 (1853); Atlanta, K. & N. Ry. v. Wilson, 119 Ga. 781 , 47 S.E. 366 (1904); Lamb v. Howard, 150 Ga. 12 , 102 S.E. 436 (1920); Southern Ry. v. Pruitt, 121 Ga. App. 530 , 174 S.E.2d 249 (1970), overruled on other grounds, Rakestraw v. Berenson, 153 Ga. App. 513 , 266 S.E.2d 249 (1980).

This section, being remedial in nature, is to be liberally construed so as to preserve the right to renew a cause of action set out in the previous action wherever same has been disposed of on any ground other than one affecting the merits. United States Cas. Co. v. AMOCO, 104 Ga. App. 209 , 121 S.E.2d 328 (1961); Hiley v. McGoogan, 177 Ga. App. 809 , 341 S.E.2d 461 (1986).

This is a remedial statute and is to be liberally construed when the first action is disposed of on grounds not affecting merits of the case. Keramidas v. Department of Human Resources, 147 Ga. App. 820 , 250 S.E.2d 560 (1978).

Construction with federal statute. - Georgia Court of Appeals has adopted the grace period approach and construed 28 U.S.C. § 1367(d) as allowing state law claims that would otherwise be time-barred to be refiled in state court, if the claims are refiled no later than 30 days after federal court dismissal. Gottschalk v. Woods, 329 Ga. App. 730 , 766 S.E.2d 130 (2014).

Construction with O.C.G.A. § 9-11-9.1 . - On the statute's face, O.C.G.A. § 9-11-9.1 (f) requires a motion to dismiss to be filed in addition to the first responsive pleading to foreclose the possibility of renewal under O.C.G.A. § 9-2-61 . Mission Health of Georgia, LLC v. Bagnuolo, 339 Ga. App. 23 , 793 S.E.2d 98 (2016).

Section inapplicable. - Because a personal injury plaintiff failed to file an action against an uninsured/underinsured motorist insurer within the applicable statutory period, and the action was not subject to renewal, as the magistrate court determined that service was made by an unauthorized person, thus rendering the original action void, and, therefore, the insurer was entitled to dismissal. Lewis v. Waller, 282 Ga. App. 8 , 637 S.E.2d 505 (2006).

O.C.G.A. § 9-2-61(a) not used to bar statute of repose. - When O.C.G.A. § 9-2-61(a) allows a dismissed action to be renewed after expiration of the applicable statute of limitation, it says nothing about a statute of repose and may not be used to avoid the bar of the statute of repose. Siler v. Block, 204 Ga. App. 672 , 420 S.E.2d 306 (1992), aff'd, 263 Ga. 257 , 429 S.E.2d 523 (1993).

This section is designed to save causes from the statute of limitations, and applies only to cases which are otherwise barred by the statute of limitations. Moore v. Tootle, 134 Ga. App. 232 , 214 S.E.2d 184 (1975).

This section is meant to save case from the statute of limitations when it attaches a pending action. Brooks v. Douglas, 154 Ga. App. 54 , 267 S.E.2d 495 (1980).

As long as the original suit is filed within the limitation period and the action is properly renewed pursuant to the requirement of O.C.G.A. § 9-2-61(a) , the renewed action will not be barred by the statute of limitation. Chinn v. Maxwell, 170 Ga. App. 85 , 316 S.E.2d 546 (1984).

Fact that the original suit is dismissed prior to the expiration of the statute of limitations but the renewed action is not instituted until after the expiration of the limitation period does not bar application of O.C.G.A. § 9-2-61(a) . Chinn v. Maxwell, 170 Ga. App. 85 , 316 S.E.2d 546 (1984).

Since original action was pending in court for over two years before being voluntarily dismissed by the plaintiff and then refiled the same day of plaintiff's own volition, these actions could not prevent plaintiff from raising the one-year bar of removal against defendant's notice of removal absent a finding of bad faith or deception. Hattaway v. Engelhard Corp., 998 F. Supp. 1479 (N.D. Ga. 1998).

Relation back only if diligence present. - Service that is perfected after the statute of limitations has run and more than five days after the complaint was filed will relate back to the date of filing only if the plaintiff diligently attempted to perfect service. Morris v. Haren, 52 F.3d 947 (11th Cir. 1995).

Limitation period is not tolled when plaintiff failed to dismiss first complaint prior to filing second complaint. - Appellant's failure to ensure that the appellant's first complaint was dismissed prior to the filing of the second complaint deprives the appellant of the protection from the statute of limitation afforded by the renewal statute. Jones v. Cargill, Inc., 191 Ga. App. 843 , 383 S.E.2d 206 (1989).

When a suit has been filed within the statute of limitations and dismissed after the statute has attached, a party may dismiss, pay all costs, and recommence the action by a new filing of the suit; however, the pending action must have been a valid action that was subject to renewal. Sylvester v. DOT, 252 Ga. App. 31 , 555 S.E.2d 740 (2001).

Section does not limit rebringing case if statute has not run. - This section has application only when bar of the statute of limitations would otherwise apply, and does not attempt to limit time in which plaintiff may rebring the plaintiff's case if the statute of limitations on the action has not run. Alewine v. State, 103 Ga. App. 120 , 118 S.E.2d 499 (1961).

There is no limitation as to the number of times an action may be brought and dismissed so long as the statute of limitations does not attach. Brooks v. Douglas, 154 Ga. App. 54 , 267 S.E.2d 495 (1980).

Right of renewal comes into play only if case would otherwise be barred by the statute of limitations. Rakestraw v. Berenson, 153 Ga. App. 513 , 266 S.E.2d 249 (1980).

This section does not apply when the original action was not barred by the statute of limitations. Hackney v. Asbury & Co., 124 Ga. 678 , 52 S.E. 886 (1906); Powell v. Fidelity & Deposit Co., 48 Ga. App. 529 , 173 S.E. 196 (1934); Whalen v. Certain-Teed Prods. Corp., 108 Ga. App. 686 , 134 S.E.2d 528 (1963).

This section is applicable only to save a case from the statute of limitations when it attaches a pending action. Williford v. State, 56 Ga. App. 840 , 194 S.E. 384 (1937).

This section is not applicable unless, due to dismissal, the bar of the statute of limitations has attached or may attach; and it is to relieve this bar that allowance of six months time in which to renew the action is given. Bowman v. Ware, 133 Ga. App. 799 , 213 S.E.2d 58 (1975).

Original action must not have been barred. - Plaintiff who has had an action dismissed other than on the merits may refile within six months if the original action was not barred by the statute of limitations. Covil v. Stansell, 113 Ga. App. 179 , 147 S.E.2d 479 (1966); Schaffer v. City of Atlanta, 151 Ga. App. 1 , 258 S.E.2d 674 (1979), rev'd on other grounds, 245 Ga. 164 , 264 S.E.2d 6 (1980).

Under former Code 1933, § 3-808 (see O.C.G.A. § 9-2-61 ), plaintiff may refile an action within six months following the automatic dismissal mandated by Ga. L. 1967, p. 557, § 1 or Ga. L. 1966, p. 608, § 41 (see O.C.G.A. § 9-2-60 or O.C.G.A. § 9-11-41 ) if the original action was not barred by the statute of limitations. Berry v. Siskin, 128 Ga. App. 3 , 195 S.E.2d 255 (1973).

First action dismissed with prejudice. - After the trial court dismissed the first action with prejudice, it could not be properly refiled under O.C.G.A. § 9-2-61 . Black v. Knight, 231 Ga. App. 820 , 499 S.E.2d 69 (1998).

Although a patient and a husband had an expert affidavit, they failed to file it with their complaint against a doctor and a professional corporation alleging ordinary and professional negligence, and the trial court's grant of the motion to dismiss for failure to comply with O.C.G.A. § 9-11-9.1 was with prejudice, as it was on the merits; as the patient and the husband conceded that they could not seek to amend the complaint by adding the affidavit, and they had failed to voluntarily dismiss their action prior to the trial court having ruled on the motion, the patient and the husband could not seek to renew under O.C.G.A. § 9-2-61 . Bardo v. Liss, 273 Ga. App. 103 , 614 S.E.2d 101 (2005).

Only one opportunity to renew action. - Since plaintiff refiled a complaint outside the statute of limitations after the plaintiff's first suit was dismissed for lack of jurisdiction, the plaintiff exercised the plaintiff's one and only opportunity to validly renew the action under O.C.G.A. § 9-2-61 . White v. KFC Nat'l Mgt. Co., 229 Ga. App. 73 , 493 S.E.2d 244 (1997).

Right to renew a previously dismissed action after the statute of limitation has expired is governed by O.C.G.A. § 9-2-61 , subject to the requirement of payment of costs in the original action as required by O.C.G.A. § 9-11-41(d) ; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once. Belcher v. Folsom, 258 Ga. App. 191 , 573 S.E.2d 447 (2002).

Trial court's dismissal of injured party's renewed complaint was proper because, even though dismissal under O.C.G.A. § 50-21-26(a)(4) was without prejudice, the injured party had renewed the action once and could not, under O.C.G.A. § 9-2-61(a) , do so again. Baskin v. Ga. Dep't of Corr., 272 Ga. App. 355 , 612 S.E.2d 565 (2005).

In order to show right to renew action within six months after dismissal of prior action on same cause of action, it is necessary for the renewal petition to show affirmatively that the former petition was not a void action, that it was such a valid action as may be renewed under this section, that it is based upon substantially the same cause of action, and that it is not a renewal of a previous action which was dismissed on its merits so that dismissal would act as a bar to rebringing of the petition. Morrison v. Bowen, 106 Ga. App. 464 , 127 S.E.2d 194 (1962); Hudnall v. Kelly, 388 F. Supp. 1352 (N.D. Ga. 1975).

Trial court did not err in directing verdict for defendants on trover claim because the statute of limitations had ran where plaintiff failed to place in record, by offer of proof or otherwise, evidence that the plaintiff had filed the instant case within six months after dismissal without prejudice of prior action brought within the statute of limitations. Duckworth v. Collier, 164 Ga. App. 139 , 296 S.E.2d 640 (1982).

Renewal action improperly dismissed under abatement statutes. - After a car buyer dismissed the buyer's fraud and breach of contract action against the seller while a counterclaim was pending and then attempted to refile the buyer's claims under the renewal statute, O.C.G.A. § 9-2-61 , the trial court erred in dismissing the renewed action under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) . Code Section 9-2-5(a) precluded simultaneous prosecution of the same claims, and the buyer was not prosecuting the same claims simultaneously, given that the buyer dismissed the buyer's claims in the first case. Brock v. C & M Motors, Inc., 337 Ga. App. 288 , 787 S.E.2d 259 (2016).

Renewal precluded if requisite expert affidavit was not filed in prior action. - Pursuant to O.C.G.A. § 9-11-9.1 , the renewal provision in O.C.G.A. § 9-2-61(a) did not save a second medical malpractice suit that was filed by plaintiffs, patient and wife, after the statute of limitation but within six months of their voluntary dismissal of a timely first malpractice suit because: (1) plaintiffs failed to attach an O.C.G.A. § 9-11-9.1 expert affidavit to the first complaint and dismissed the first action without giving defendants, doctor and employer, a chance to seek dismissal on that ground; (2) the required affidavit was not executed until after the time for filing such an affidavit in the first action had expired; and (3) defendants raised the affidavit issue in a motion to dismiss contemporaneous with their initial responsive pleadings in the second action. Griffin v. Carson, 255 Ga. App. 373 , 566 S.E.2d 36 (2002).

Trial court did not err in dismissing with prejudice a patient's medical malpractice action on the ground that the patient failed to attach the required affidavits under O.C.G.A. § 9-11-9.1 , because O.C.G.A. §§ 9-2-61(a) and 9-11-9.1 did not allow amendments of complaints in order to attach affidavits; dismissals for failure to attach such affidavits were dismissals for failure to state a claim and were, therefore, on the merits and with prejudice. Roberson v. Northrup, 302 Ga. App. 405 , 691 S.E.2d 547 (2010).

Suit which is voluntarily dismissed after the statutory period of limitation has passed may be refiled in the correct county. Hornsby v. Hancock, 165 Ga. App. 543 , 301 S.E.2d 900 (1983).

Dismissal by court on ground not adjudicating merits counts as voluntary dismissal for purposes of this section. Douglas v. Kelley, 116 Ga. App. 670 , 158 S.E.2d 441 (1967).

Application of O.C.G.A. § 9-11-41 . - Dismissal under Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(e) ) was not on the merits and a case may be refiled within six months of such dismissal under former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61 ). Calloway v. Harms, 135 Ga. App. 54 , 217 S.E.2d 184 (1975).

Dismissal under Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(e) ) did not operate as dismissal on the merits pursuant to Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(b) ), and after such dismissal the plaintiff has six months to refile the complaint pursuant to former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61 ). Allstate Ins. Co. v. Dobbs, 134 Ga. App. 225 , 213 S.E.2d 915 (1975).

This section is not applicable when decision on merits terminates action. Harp v. Smith, 155 Ga. App. 393 , 271 S.E.2d 38 (1980).

Service on uninsured motorist carrier. - When insured brought suit against a driver for negligence, but did not serve the insured's excess uninsured motorist (UM) carrier under O.C.G.A. § 33-7-11 until after renewing the suit under O.C.G.A. § 9-2-61 , it was error to grant summary judgment to the excess carrier on ground that service was untimely; purpose of § 33-7-11 (d) is to provide notice to a UM carrier, not to obtain personal jurisdiction over it or to make it a party defendant, and service on a UM carrier was permissible at any time within which valid service could be made on the defendant. Hayward v. Retention Alternatives, Ltd., 291 Ga. App. 232 , 661 S.E.2d 862 (2008), aff'd, 285 Ga. 437 , 678 S.E.2d 877 (2009).

Uninsured motorist (UM) insurer was timely served in an insured's renewal action, and summary judgment for the insurer was error because service on a UM carrier under O.C.G.A. § 33-7-11 was valid and timely within any time allowed for valid service on the tortfeasor in the case, even if such valid service was after the expiration of the statute of limitation; nothing in the 1998 amendment to § 33-7-11 reflected a legislative decision to overrule any of the judicial decisions holding such service valid. Although the insured had voluntarily dismissed the initial suit, the insured timely renewed the action pursuant to O.C.G.A. § 9-2-61 , and served the insurer with the renewed complaint. Retention Alternatives, Ltd. v. Hayward, 285 Ga. 437 , 678 S.E.2d 877 (2009).

Refiled suit barred by statute of repose. - Executrix's medical malpractice claim against a doctor was properly dismissed as, even if the action was refiled in accordance with O.C.G.A. § 9-2-61 , the suit was barred by the statute of repose under O.C.G.A. § 9-3-71(b) as the suit was filed seven years after the patient's death. Adams v. Griffis, 275 Ga. App. 364 , 620 S.E.2d 575 (2005).

Failure to file a required affidavit contemporaneously with the complaint did not render the complaint void ab initio, but merely made the action voidable insofar as the application of O.C.G.A. § 9-2-61 was concerned. Patterson v. Douglas Women's Center, 258 Ga. 803 , 374 S.E.2d 737 (1989).

Intention of legislature was that this section should apply only to state courts, for in the Act of 1847 it uses the words "courts of this State," meaning, in the court's opinion, courts created by the Constitution and laws of this state. Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80 , 240 S.E.2d 284 (1977).

Claims dismissed under section. - Because the children of a decedent refiled their complaint against the operators of a nursing home more than five years after the death of their mother or the alleged wrongful acts occurred, their claims were subject to dismissal under the statute of repose of O.C.G.A. § 9-3-71(b) . Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80 , 666 S.E.2d 401 (2008).

Trial court did not err in dismissing a passenger's O.C.G.A. § 9-2-61 renewal action entirely as being void ab initio and in denying the passenger's request to substitute parties under O.C.G.A. § 9-11-25 because the passenger's renewed complaint was filed after the driver's death, and the passenger never attempted to substitute a new defendant before a hearing on a motion to dismiss. Cox v. Progressive Bayside Ins. Co., 316 Ga. App. 50 , 728 S.E.2d 726 (2012).

Renewal can only be exercised once. - In a wrongful death action, a trial court properly granted summary judgment to two defending prison workers because the estate administrator for the deceased inmate had already exercised the right to one renewal of the action outside the statute of limitation authorized by O.C.G.A. § 9-2-61(a) and could not invoke the statute again to save the time-barred third complaint after a federal court declined to exercise pendent jurisdiction over the state claims. Stokes v. Hill, 324 Ga. App. 256 , 749 S.E.2d 819 (2013).

Cited in Jordan v. Faircloth, 27 Ga. 372 (1859); Cohen & Menko v. Southern Express Co., 53 Ga. 128 (1874); Kimbro & Morgan v. Virginia & T. Air Line R.R., 56 Ga. 185 (1876); Crane v. Barry, 60 Ga. 362 (1878); Bagley v. Stephens, 80 Ga. 736 , 6 S.E. 695 (1888); Smith v. Floyd County, 85 Ga. 420 , 11 S.E. 850 (1890); Colley v. Gate City Coffin Co., 92 Ga. 664 , 18 S.E. 817 (1893); Savannah, F. & W. Ry. v. Smith, 93 Ga. 742 , 21 S.E. 157 (1894); Crawford v. Watkins, 118 Ga. 631 , 45 S.E. 482 (1903); Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 , 72 S.E. 51 (1911); Central of Ga. Ry. v. Macon Ry. & Light Co., 140 Ga. 309 , 78 S.E. 931 (1913); Fordham v. Hicks, 224 F. 810 (S.D. Ga. 1915); Ternest v. Georgia C. & P.R.R., 19 Ga. App. 94 , 90 S.E. 1040 (1916); Mitchell County v. Dixon, 20 Ga. App. 21 , 92 S.E. 405 (1917); Southern Bell Tel. & Tel. Co. v. Freeman, 22 Ga. App. 166 , 95 S.E. 740 (1918); McFarland v. McFarland, 151 Ga. 9 , 105 S.E. 596 (1921); Guthrie v. Gaskins, 171 Ga. 303 , 155 S.E. 185 (1930); Granite State Fire Ins. Co. v. Carpenter, 42 Ga. App. 523 , 156 S.E. 645 (1931); George v. McCurdy, 42 Ga. App. 614 , 157 S.E. 219 (1931); Sharpe v. Seaboard Air Line Ry., 43 Ga. App. 51 , 157 S.E. 875 (1931); Avery v. Southern Ry., 47 Ga. App. 772 , 171 S.E. 456 (1933); Allen v. McGuire, 49 Ga. App. 60 , 174 S.E. 147 (1934); Powell v. Powell, 179 Ga. 817 , 177 S.E. 566 (1934); Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935); Jones v. Mayor of Savannah, 52 Ga. App. 537 , 184 S.E. 353 (1936); Rogers v. Rigell, 183 Ga. 455 , 188 S.E. 704 (1936); Quinn v. O'Neal, 58 Ga. App. 628 , 199 S.E. 359 (1938); Bryant v. Whitley, 70 Ga. App. 864 , 29 S.E.2d 648 (1944); Moore v. Gregory, 72 Ga. App. 614 , 34 S.E.2d 624 (1945); Kenemer v. Arkansas Fuel Oil Co., 151 F.2d 567 (5th Cir. 1945); Peterson v. Lott, 200 Ga. 390 , 37 S.E.2d 358 (1946); Crapps v. Mangham, 75 Ga. App. 563 , 44 S.E.2d 133 (1947); Barry Fin. Co. v. Lanier, 79 Ga. App. 344 , 53 S.E.2d 694 (1949); Fowler v. Latham, 206 Ga. 245 , 56 S.E.2d 272 (1949); Zachry v. State, 81 Ga. App. 637 , 59 S.E.2d 555 (1950); Posey v. Frost Motor Co., 84 Ga. App. 30 , 65 S.E.2d 427 (1951); Carroll v. Taylor, 87 Ga. App. 815 , 75 S.E.2d 346 (1953); Barnett v. Ashley, 89 Ga. App. 679 , 81 S.E.2d 11 (1954); Shockley v. Nunnally, 95 Ga. App. 342 , 98 S.E.2d 47 (1957); Laughlin Motors, Inc. v. General Fin. & Thrift Corp., 101 Ga. App. 846 , 115 S.E.2d 574 (1960); Crow v. Whitfield, 105 Ga. App. 436 , 124 S.E.2d 648 (1962); Davis v. Holt, 108 Ga. App. 280 , 132 S.E.2d 796 (1963); Anderson v. Southern Bell Tel. & Tel. Co., 108 Ga. App. 314 , 132 S.E.2d 820 (1963); Lillibridge v. Riley, 316 F.2d 232 (5th Cir. 1963); Old S. Inv. Co. v. Aetna Ins. Co., 124 Ga. App. 697 , 185 S.E.2d 584 (1971); Brock v. Baker, 128 Ga. App. 397 , 196 S.E.2d 875 (1973); Dollar v. Webb, 132 Ga. App. 811 , 209 S.E.2d 253 (1974); Harris v. United States Fid. & Guar. Co., 134 Ga. App. 739 , 216 S.E.2d 127 (1975); Milam v. Mojonnier Bros. Co., 135 Ga. App. 208 , 217 S.E.2d 355 (1975); McLanahan v. Keith, 239 Ga. 94 , 236 S.E.2d 52 (1977); Bourquine v. City of Patterson, 151 Ga. App. 232 , 259 S.E.2d 214 (1979); City of Atlanta v. Schaffer, 245 Ga. 164 , 264 S.E.2d 6 (1980); Sumlin v. Jones, 153 Ga. App. 585 , 266 S.E.2d 274 (1980); Reese v. Frazier, 158 Ga. App. 237 , 279 S.E.2d 529 (1981); Smith v. Deller, 161 Ga. App. 112 , 288 S.E.2d 825 (1982); Stone v. Green, 163 Ga. App. 18 , 293 S.E.2d 506 (1982); Walker v. Little, 164 Ga. App. 423 , 296 S.E.2d 636 (1982); Speer, Inc. v. Manis, 164 Ga. App. 460 , 297 S.E.2d 374 (1982); GECC v. Home Indem. Co., 168 Ga. App. 344 , 309 S.E.2d 152 (1983); Ballard v. Rappaport, 168 Ga. App. 671 , 310 S.E.2d 4 (1983); Scott v. DeKalb County Hosp. Auth., 169 Ga. App. 257 , 312 S.E.2d 154 (1983); Cambridge Mut. Fire Ins. Co. v. City of Claxton, 720 F.2d 1230 (11th Cir. 1983); Petkas v. Grizzard, 252 Ga. 104 , 312 S.E.2d 107 (1984); Drohan v. Carriage Carpet Mills, 175 Ga. App. 717 , 334 S.E.2d 219 (1985); Hanna v. Savannah Serv., Inc., 179 Ga. App. 525 , 347 S.E.2d 263 (1986); Adams v. Cobb County, 184 Ga. App. 879 , 363 S.E.2d 260 (1987); Foster & Kleiser, Inc. v. Coe & Payne Co., 185 Ga. App. 284 , 363 S.E.2d 818 (1987); Gober v. Nisbet, 186 Ga. App. 264 , 367 S.E.2d 68 (1988); Waldrop v. Evans, 681 F. Supp. 840 (M.D. Ga. 1988); Ingle v. Specialty Distrib. Co., 681 F. Supp. 1556 (N.D. Ga. 1988); Byrd v. City of Atlanta, 683 F. Supp. 804 (N.D. Ga. 1988); Montford v. Robins Fed. Credit Union, 691 F. Supp. 347 (M.D. Ga. 1988); Kadel v. Thompson, 84 Bankr. 878 (N.D. Ga. 1988); Rowell v. Parker, 192 Ga. App. 215 , 384 S.E.2d 396 (1989); Robinson v. Stuck, 194 Ga. App. 311 , 390 S.E.2d 603 (1990); Robinson v. Department of Transp., 195 Ga. App. 594 , 394 S.E.2d 590 (1990); Associated Writers Guild of Am., Inc. v. First Nat'l Bank, 195 Ga. App. 820 , 395 S.E.2d 23 (1990); Clark v. West, 196 Ga. App. 456 , 395 S.E.2d 884 (1990); Baxter v. Fulton-DeKalb Hosp. Auth., 764 F. Supp. 1510 (N.D. Ga. 1991); Granite State Ins. Co. v. Nord Bitumi U.S., Inc., 959 F.2d 911 (11th Cir. 1992); Siler v. Block, 263 Ga. 257 , 429 S.E.2d 523 (1993); Wimberly v. Department of Cors., 210 Ga. App. 57 , 435 S.E.2d 67 (1993); Sievers v. Espy, 264 Ga. 118 , 442 S.E.2d 232 (1994); McClendon v. 1152 Spring St. Associates-Georgia, 225 Ga. App. 333 , 484 S.E.2d 40 (1997); White v. Rolley, 225 Ga. App. 467 , 484 S.E.2d 83 (1997); Littleton v. Stone, 231 Ga. App. 150 , 497 S.E.2d 684 (1998); Sawyer v. DeKalb Medical Ctr., Inc., 234 Ga. App. 54 , 506 S.E.2d 197 (1998); Carnes Bros., Inc. v. Cox, 243 Ga. App. 863 , 534 S.E.2d 547 (2000); Cecil T. Allgood, Inc. v. Stark Props., Inc., 244 Ga. App. 105 , 534 S.E.2d 858 (2000); Cotton v. NationsBank, N.A., 2 49 Ga. App. 60 6 , 548 S.E.2d 40 (2001); West v. Men's Focus Health Ctrs. of Ga., Inc., 251 Ga. App. 202 , 553 S.E.2d 379 (2001); Ward v. Dodson, 256 Ga. App. 660 , 569 S.E.2d 554 (2002); Middlebrooks v. Bibb County, 261 Ga. App. 382 , 582 S.E.2d 539 (2003); Smith v. Morris, Manning & Martin, LLP, 264 Ga. App. 24 , 589 S.E.2d 840 (2003); Brown v. Kroger Co., 278 Ga. 65 , 597 S.E.2d 382 (2004); Slone v. Myers, 288 Ga. App. 8 , 653 S.E.2d 323 (2007); Brito v. Gomez Law Group, LLC, 289 Ga. App. 625 , 658 S.E.2d 178 (2008); Holmes & Co. v. Carlisle, 289 Ga. App. 619 , 658 S.E.2d 185 (2008); Batesville Casket Co. v. Watkins Mortuary, Inc., 293 Ga. App. 854 , 668 S.E.2d 476 (2008); Long v. Greenwood Homes, Inc., 285 Ga. 560 , 679 S.E.2d 712 (2009); Cleveland v. Katz, 311 Ga. App. 880 , 717 S.E.2d 500 (2011); Gala v. Fisher, 296 Ga. 870 , 770 S.E.2d 879 (2015); Wright v. Brown, 336 Ga. App. 1 , 783 S.E.2d 405 (2016); Trabue v. Atlanta Women's Specialists, LLC, 349 Ga. App. 223 , 825 S.E.2d 586 (2019); Premier Eye Care Assocs. v. Mag Mut. Ins. Co., 355 Ga. App. 620 , 844 S.E.2d 282 (2020); Odion v. Avesis, Inc., 355 Ga. App. 598 , 845 S.E.2d 335 (2020).

Procedural Consideration

Renewal allowable to meet service requirements of O.C.G.A. § 50-21-35 . - Trial court erred in dismissing an injured party's personal injury action against a state agency because, under the current precedent, failure to meet the notice requirements of O.C.G.A. § 50-21-35 did not automatically require a dismissal, and the injured party's act of refiling the complaint under the renewal statute, O.C.G.A. § 9-2-61 , was allowable under the circumstances. Shiver v. DOT, 277 Ga. App. 616 , 627 S.E.2d 204 (2006).

Renewal application to confirm arbitration award governed by O.C.G.A. § 9-2-61(c) . - Corporation's original state court application to confirm an arbitration award was incapable of being renewed pursuant to O.C.G.A. § 9-2-61(a) because O.C.G.A. § 9-9-4(a)(1) required any application to the court under the Georgia Arbitration Code to be made in the superior court of the county where venue lies, and thus, the state court lacked subject matter jurisdiction over the corporation's original application; O.C.G.A. § 9-2-61(c) provided the only avenue by which the corporation could have resurrected the corporation's original void action under the renewal statute. Warehouseboy Trading, Inc. v. Gew Fitness, LLC, 316 Ga. App. 242 , 729 S.E.2d 449 (2012).

No reference to venue. - Venue of renewed action may be laid in any court having jurisdiction. Cox v. Strickland, 120 Ga. 104 , 47 S.E. 912 , 1 Ann. Cas. 870 (1904).

When venue is improperly laid in the first action, this section does not require that the action shall be renewed in the same court or county, for this section is but a codification of the Act of 1847 which allowed plaintiff to renew in any court having jurisdiction thereof in this state. Chance v. Planters Rural Tel. Coop., 219 Ga. 1 , 131 S.E.2d 541 (1963).

This section, in granting the right to renew within six months, forms an exception to the statute of limitations, and has no reference to the subject of venue; new action may be brought in any court having jurisdiction thereof in this state. Keramidas v. Department of Human Resources, 147 Ga. App. 820 , 250 S.E.2d 560 (1978).

Jurisdiction of parties and subject matter required. - In order for this section to prevent operation of the statute of limitations, the first action must have been one in which the court had jurisdiction of the parties and subject matter. Hudnall v. Kelly, 388 F. Supp. 1352 (N.D. Ga. 1975).

Trial court properly dismissed a plaintiff's renewal action regarding a personal injury suit because the plaintiff's original action was void in that the trial court had orally dismissed that suit for insufficiency of service and a lack of personal jurisdiction, and the renewal statute only applied to actions that were valid prior to dismissal. Stephens v. Shields, 271 Ga. App. 141 , 608 S.E.2d 736 (2004).

Service in first action essential. - In order to make the second action stand upon the same footing as to limitation as the original case, it is essential that service was had in the first action; mere filing, without service, will not be sufficient. McClendon & Co. v. Hermando Phosphate Co., 100 Ga. 219 , 28 S.E. 152 (1897); Planters Rural Tel. Coop. v. Chance, 107 Ga. App. 116 , 129 S.E.2d 384 (1962), rev'd on other grounds, 219 Ga. 1 , 131 S.E.2d 541 (1963); Haas v. Blake, 148 Ga. App. 366 , 251 S.E.2d 386 (1978).

Mere filing of petition will not of itself operate to toll the statute of limitations, for service is also a vital ingredient. Chance v. Planters Rural Tel. Coop., 219 Ga. 1 , 131 S.E.2d 541 (1963).

When action is filed but there is no service, the first action is void and will not serve to toll the statute of limitations. Douglas v. Kelley, 116 Ga. App. 670 , 158 S.E.2d 441 (1967).

In order for the filing of the complaint to qualify under O.C.G.A. § 9-2-61 as a valid renewal of a previously dismissed action, the proceedings which plaintiff dismissed must have constituted a "valid action." The mere filing of plaintiff's first complaint, without service on defendant, does not, however, constitute a "valid" action. Acree v. Knab, 180 Ga. App. 174 , 348 S.E.2d 716 (1986).

Because the defendant was never served with the original DeKalb County complaint, the renewal provision contained in O.C.G.A. § 9-2-61 was inapplicable and plaintiff's Henry County action, filed more than two years after the incident and some eight months after the first suit, was barred by the applicable statute of limitation. Wilkins v. Butler, 187 Ga. App. 84 , 369 S.E.2d 267 , cert. denied, 187 Ga. App. 909 , 370 S.E.2d 773 (1988).

In order for a case to qualify as a renewal action, the earlier filing must have been a valid action, with proper service on the defendant. Ludi v. Van Metre, 221 Ga. App. 479 , 471 S.E.2d 913 (1996).

When an original action was filed prior to the running of the statute of limitation and proper service was not perfected on defendants until after the expiration thereof, O.C.G.A. § 9-2-61 remained available to the plaintiff because the plaintiff voluntarily dismissed the original action before the trial court ruled on the reasonableness of the service therein. This decision overrules Brooks v. Young, 220 Ga. App. 47 , 467 S.E.2d 230 (1996), to the extent it holds that there can be no valid service of an original action outside the statute of limitation. Allen v. Kahn, 231 Ga. App. 438 , 499 S.E.2d 164 (1998).

Since the defendant was not served in the first suit, that suit was void and incapable of being renewed under subsection (a) of O.C.G.A. § 9-2-61 ; neither defendant's appearance in the first suit by filing an answer and raising the defense of lack of service, nor the defendant's participation in discovery prior to plaintiff's dismissal was a waiver of the service defect. Sparrow v. Che, 232 Ga. App. 184 , 501 S.E.2d 553 (1998); Parker v. Jester, 244 Ga. App. 494 , 535 S.E.2d 814 (2000).

Since proper service was never made on the corporations in the original action, the privilege of renewal did not apply with respect to them. Kidd v. First Commerce Bank, 264 Ga. App. 536 , 591 S.E.2d 369 (2003).

Because sufficient evidence was presented that supported the trial court's ruling that service of process in a personal injury plaintiff's original suit was ineffectual, that suit was void, making dismissal of the personal injury plaintiff's renewal claim proper. Cooper v. Lewis, 288 Ga. App. 750 , 655 S.E.2d 344 (2007).

Service waived by defendant. - This section does not apply to void actions, including actions in which the petition has been filed but not served upon the defendant, but want of service will not void the action if service has been waived by the defendant. Cutliffe v. Pryse, 187 Ga. 51 , 200 S.E. 124 (1938).

Delay in service in original action. - Inasmuch as diligence in perfecting service of process in an action properly refiled under subsection (a) of O.C.G.A. § 9-2-61 must be measured from time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action. Hobbs v. Arthur, 264 Ga. 359 , 444 S.E.2d 322 (1994); Urrea v. Flythe, 215 Ga. App. 212 , 450 S.E.2d 266 (1994).

Court of appeals correctly reversed a trial court's grant of summary judgment to a driver and a corporation based on a second driver's lack of diligence in serving a complaint in the driver's voluntarily dismissed original action because inasmuch as diligence in perfecting service of process in an action properly refiled under O.C.G.A. § 9-2-61(a) had to be measured from the time of filing the renewed suit, any delay in service in a valid first action was not available as an affirmative defense in the renewal action. The first driver and corporation essentially sought the rewriting of an unambiguous statute, but their arguments were properly directed to the General Assembly because when the General Assembly wished to put a firm deadline on filing lawsuits, the legislature knew how to enact a statute of repose instead of a statute of limitation. Robinson v. Boyd, 288 Ga. 53 , 701 S.E.2d 165 (2010).

Service in second action essential. - Mere refiling of an action after dismissal for improper service on defendants did not operate to toll the running of the relevant statute when the plaintiffs did not exercise reasonable diligence to see that the defendant was properly served in the present action. Cambridge Mut. Fire Ins. Co. v. City of Claxton, 96 F.R.D. 175 (S.D. Ga. 1982), aff'd, 720 F.2d 1230 (11th Cir. 1983).

After the plaintiff voluntarily dismissed the action without prejudice and filed another complaint for damages, and the plaintiff did not perfect service by having the second complaint personally served on the defendant, the plaintiff failed to comply with the procedural prerequisites for renewal of the dismissed action. Atkinson v. Holt, 213 Ga. App. 427 , 444 S.E.2d 838 (1994).

Diligence in perfecting service of process in an action properly refiled under subsection (a) of O.C.G.A. § 9-2-61 must be measured from the time of filing the renewed suit. Heard v. Hart, 241 Ga. App. 441 , 526 S.E.2d 908 (1999).

Finding was proper that plaintiff was not diligent in serving defendant who was not served until approximately three months after a renewed action was filed because plaintiff's attorney provided the sheriff with an erroneous address, despite the fact that the attorney had the correct address. Heard v. Hart, 241 Ga. App. 441 , 526 S.E.2d 908 (1999).

Because the plaintiff offered no explanation for the delays in attempting to locate and serve the defendant, whether the delays show that the plaintiff was guilty of laches in failing to exercise diligence in perfecting service was a matter within the trial court's discretion. Davis v. Bushnell, 245 Ga. App. 221 , 537 S.E.2d 477 (2000).

Effect of service beyond limitation period. - Inordinate and unexplained delay on the part of plaintiff in obtaining personal service on defendant, particularly after being placed on due notice of the deficiency in the plaintiff's original service, constituted failure to exercise due diligence, so as to preclude the relation back of subsequent perfected service to the original filing of the complaint. Bailey v. Hall, 199 Ga. App. 602 , 405 S.E.2d 579 (1991).

When service had been perfected, albeit belatedly, the original action was merely voidable and not void. Service thus related back to the date of filing, thereby preventing the suit from being barred by the statute of limitation. Therefore, by voluntarily dismissing plaintiff's valid suit, plaintiff acquired the right to file a renewal action within six months pursuant to O.C.G.A. § 9-2-61 . Fine v. Higgins Foundry & Supply Co., 201 Ga. App. 275 , 410 S.E.2d 821 (1991).

Trial court's determination that a renewal action was timely filed, after plaintiff's voluntary dismissal of plaintiff's prior complaint that was subject to dismissal for failure to timely serve defendant, necessitated remand for reconsideration of the issue in light of the subsequent case of Hobbs v. Arthur, 209 Ga. App. 855 (2), 434 S.E.2d 748 (1993). Dependable Courier Serv., Inc. v. Dinkins, 210 Ga. App. 665 , 436 S.E.2d 719 (1993).

When a prior complaint was subject to dismissal for failure to timely serve the defendant, the plaintiff's voluntary dismissal of that voidable action followed by timely service of the renewed complaint as allowed by O.C.G.A. § 9-2-61 is not determinative of the merits of a subsequently filed motion predicated upon the expiration of the statute of limitation and the alleged lack of due diligence. Dependable Courier Serv., Inc. v. Dinkins, 210 Ga. App. 665 , 436 S.E.2d 719 (1993).

Plaintiff dismissed original action against defendant after the expiration of the applicable statute of limitation, then filed a renewal action against defendant pursuant to O.C.G.A. § 9-2-61 ; defendant raised the defense of insufficient service in defendant's answer to the original action and moved for dismissal of the renewal action on the basis that defendant was not properly served in the original action. The trial court correctly concluded the original action was void for lack of proper service on defendant, and correctly dismissed the renewal action because a void action could not be renewed pursuant to O.C.G.A. § 9-2-61 . Campbell v. Coats, 254 Ga. App. 57 , 561 S.E.2d 195 (2002).

Owners' personal injury and property damages action against a manufacturer, which concerned a fire in January 30, 2000, was barred by the two- and four-year statutes of limitations because the owners failed to timely perfect service, as required by O.C.G.A. § 9-11-4(c) , until February 23, 2004, which was more than five days after the owners filed a renewed complaint under O.C.G.A. § 9-2-61(a) on October 28, 2003. Johnson v. Am. Meter Co., 412 F. Supp. 2d 1260 (N.D. Ga. 2004).

Plaintiff was allowed to reinstate an original 42 U.S.C. § 1983 complaint under Fed. R. Civ. P. 60(b) because of excusable neglect due to the fact that the renewal statute of O.C.G.A. § 9-2-61 was inapplicable to reinstate a second action barred by the limitations period of O.C.G.A. § 9-3-33 , adequate grounds for relief were demonstrated, and no prejudice was shown. Highsmith v. Thomas, F. Supp. 2d (S.D. Ga. Apr. 18, 2007).

Dismissal of action without prejudice granted. - In a diversity action, even though the plaintiffs failed to show good cause for their failure to serve the defendants within the 120 day service period under Fed. R. Civ. P. 4(m) and failed to diligently servethe defendants after the expiration of the statute of limitations as required under O.C.G.A. § 9-11-4 , the action was dismissed without prejudice because of the refiling opportunities accorded under O.C.G.A. § 9-2-61 . Lau v. Klinger, 46 F. Supp. 2d 1377 (S.D. Ga. 1999).

Motion to dismiss renewal application should have been treated as one for summary judgment. - Because a corporation's renewed application did not indicate whether the corporation's state court action was dismissed for lack of subject matter jurisdiction, the superior court clearly considered matters beyond the corporation's renewed application in ruling on a limited liability company's (LLC) motion to dismiss; therefore, the LLC's motion should have been treated as one for summary judgment and disposed of as provided in O.C.G.A. § 9-11-56 . Warehouseboy Trading, Inc. v. Gew Fitness, LLC, 316 Ga. App. 242 , 729 S.E.2d 449 (2012).

Affirmative defenses raised in renewal actions. - Since an action renewed pursuant to subsection (a) of O.C.G.A. § 9-2-61 is an action de novo, as a general rule a defendant is not estopped from raising a proper defense in the renewal action solely because that defense was not raised in the original action. Fine v. Higgins Foundry & Supply Co., 201 Ga. App. 275 , 410 S.E.2d 821 (1991).

Affirmative defenses raised in a renewal action were not proper defenses when the delayed service in the first action was not repeated and the defendant was served promptly in the renewal action. Fine v. Higgins Foundry & Supply Co., 201 Ga. App. 275 , 410 S.E.2d 821 (1991).

Mere sustaining of plea to jurisdiction adjudicating that the court has no jurisdiction over the defendant, without setting aside of service, does not render the action itself void for lack of service, and when the plaintiff elects to rebring the action within six months in a court having jurisdiction of both subject matter and the person, this section applies. Pryse v. Cutliffe, 57 Ga. App. 548 , 195 S.E. 913 (1938), aff'd, 187 Ga. 51 , 200 S.E. 124 (1939); Douglas v. Kelley, 116 Ga. App. 670 , 158 S.E.2d 441 (1967); Weddington v. Kumar, 149 Ga. App. 857 , 256 S.E.2d 141 (1979).

If, after waiver of service by defendant by filing a plea to the jurisdiction on the ground of nonresidence in the county, plaintiff dismisses the action, and within six months from dismissal institutes an action against the defendant on the same cause in another county, admitted in the plea to the jurisdiction to be defendant's residence, this section will apply, and the latter action will not be barred by the statute of limitations. Cutliffe v. Pryse, 187 Ga. 51 , 200 S.E. 124 (1938).

If, after waiver of service by defendant by virtue of filing of a plea to the jurisdiction without objecting to service or want of service, plaintiff dismisses the plaintiff's action in one county and within six months from dismissal institutes an action against defendant on the same cause of action in the proper county, this section will apply and the latter action will not be barred by the statute of limitations. Chance v. Planters Rural Tel. Coop., 219 Ga. 1 , 131 S.E.2d 541 (1963).

Lack of personal jurisdiction. - This section applies when an action brought within the time prescribed by the statute of limitations, in a court having jurisdiction of the subject matter, is dismissed solely for want of jurisdiction of the person. Phillips v. Central of Ga. Ry., 20 Ga. App. 668 , 93 S.E. 309 (1917), aff'd, 148 Ga. 90 , 95 S.E. 994 (1918).

If plaintiff begins action in court of this state having subject matter jurisdiction, and after bar of the statute has attached the action is dismissed for lack of jurisdiction of the person, such action may be renewed within six months in another court of this state having jurisdiction of the person and subject matter. United States Cas. Co. v. AMOCO, 104 Ga. App. 209 , 121 S.E.2d 328 (1961); Keramidas v. Department of Human Resources, 147 Ga. App. 820 , 250 S.E.2d 560 (1978).

If defendant traverses service and files plea to the jurisdiction subject to traverse, the defendant may thereby establish not only that the court has no jurisdiction of the defendant's person but that the petition, not having been properly served upon the defendant, is absolutely void, and in such case plaintiff is not entitled to rely upon the first action after its dismissal as a basis of renewal. Douglas v. Kelley, 116 Ga. App. 670 , 158 S.E.2d 441 (1967).

Identity of cause of action and of parties required. - To be renewed under this section, case must be the same as to cause of action and parties. Cox v. East Tenn. & Ga. R.R., 68 Ga. 446 (1882).

To be a good "renewal" of an original action so as to suspend running of the statute of limitations, the new petition must be substantially the same both as to the cause of action and as to essential parties. Sheldon & Co. v. Emory Univ., 184 Ga. 440 , 191 S.E. 497 (1937).

If cause of action is the same in both cases, the same party or the party's legal representative may renew the second action against a person from whom relief was prayed in the first action. McCoy Enters. v. Vaughn, 154 Ga. App. 471 , 268 S.E.2d 764 (1980).

Trial court's denial of summary judgment to a hotel limited liability corporation (LLC) in a personal injury action by an injured patron was error as the action was originally brought against a different entity, the patron attempted to add the LLC and then dismissed that action and brought a new action after expiration of the limitations period under O.C.G.A. § 9-3-33 against the LLC based on the renewal statute pursuant to O.C.G.A. § 9-2-61 , but the patron never sought or obtained court permission to add the LLC as a party, as required by O.C.G.A. §§ 9-11-15(a) and 9-11-21 ; as the amendment to add the LLC was more than a correction of a misnomer because the two named defendants were separate entities, O.C.G.A. § 9-11-10(a) was inapplicable and leave of court was required in order to add the LLC. Valdosta Hotel Props., LLC v. White, 278 Ga. App. 206 , 628 S.E.2d 642 (2006).

Assertion of new claim in renewal action was improper. - Plaintiff's renewal action against the mother of a driver in a traffic accident was time-barred because it asserted a claim under the family purpose doctrine, but the original action against the mother only asserted a negligence claim against the mother and did not make a family purpose doctrine allegation; to be a good "renewal" so as to suspend the running of the statute of limitations under O.C.G.A. § 9-2-61 , the new petition had to have been substantially the same both as to the cause of action and as to the essential parties. Thus, the statute of limitations was not suspended under § 9-2-61 . Safi-Rafiq v. Balasubramaniam, 298 Ga. App. 274 , 679 S.E.2d 822 (2009).

Appellant could not file the instant action as a renewal of the breach-of-contract counterclaim that the appellant asserted in the prior litigation because the appellant could not add claims for breach of fiduciary duty, conversion, and unjust enrichment as the claims were not substantially the same as the appellant's counterclaim for breach of contract in the prior action. Hartman v. The PIP-Group, LLC, 349 Ga. App. 233 , 825 S.E.2d 601 (2019).

Payment of costs in the dismissed suit is a precondition to the filing of a second suit. Little v. Walker, 250 Ga. 854 , 301 S.E.2d 639 (1983); ; Shaw v. Lee, 187 Ga. App. 689 , 371 S.E.2d 187 (1988); (See now the 1989 amendment, which added the payment of costs provision in subsection (a)); Urrea v. Flythe, 215 Ga. App. 212 , 450 S.E.2d 266 (1994);.

Arrestee whose suit against a law enforcement officer under 42 U.S.C. § 1983 was barred by the statute of limitations could not rely on Georgia's renewal statute, O.C.G.A. § 9-2-61 , to avoid the statute of limitations because the arresstee failed to pay the unpaid costs of the arrestee's timely original action as required. The cost-payment requirement applied both to voluntary and involuntary dismissals under O.C.G.A. § 9-11-41 . Hancock v. Cape, 875 F.3d 1079 (11th Cir. 2017).

Payment of costs from federal court. - Payment of costs in a dismissed action is a jurisdictional matter which cannot be waived. Combel v. Wickey, 174 Ga. App. 758 , 332 S.E.2d 18 (1985).

Requirement may be relaxed if the plaintiff shows a good faith effort to ascertain and pay the costs. Butler v. Bolton Rd. Partners, 222 Ga. App. 791 , 476 S.E.2d 265 (1996).

Appellate court found that a plaintiff can file a renewal action in a Georgia court under O.C.G.A. § 9-2-61 within six months following the dismissal of claims in a prior federal action without first paying the litigation expenses submitted by a defendant in a bill of costs to the federal district court. Prison Health Servs. v. Mitchell, 256 Ga. App. 537 , 568 S.E.2d 741 (2002).

Payment of costs of original action is condition precedent to right to renew action. McLanahan v. Keith, 140 Ga. App. 171 , 230 S.E.2d 57 (1976), aff'd, 239 Ga. 94 , 236 S.E.2d 52 (1977); Little v. Walker, 250 Ga. 854 , 301 S.E.2d 639 (1983); Shaw v. Lee, 187 Ga. App. 689 , 371 S.E.2d 187 (1988); (See now the 1989 amendment, which added the payment of costs provision in subsection (a)).

When costs of the prior dismissed action have not been paid, statute of limitations applies to the renewal case even if it has been filed within six months of dismissal. Grier v. Wade Ford, Inc., 135 Ga. App. 821 , 219 S.E.2d 43 (1975).

Failure to attach ante litem notice. - Plaintiff's tort action against the Georgia Ports Authority complied with the statute of limitations and ante litem notice statute, O.C.G.A. §§ 50-21-26(a)(4) and 50-21-27(c) , and the plaintiff's second action was proper under the renewal statute, O.C.G.A. § 9-2-61 , but was dismissed for failure to attach the ante litem notice timely. The plaintiff's third action was improper because dismissal of the first action occurred outside the statute of limitations, so only one renewal was authorized. Burroughs v. Georgia Ports Authority, 339 Ga. App. 294 , 793 S.E.2d 538 (2016).

Applicable procedural rules. - Renewal action is governed by those procedural rules which are in effect at the time that it is filed. Archie v. Scott, 190 Ga. App. 145 , 378 S.E.2d 182 (1989).

Substitution for "John Doe" defendant. - After the plaintiff voluntarily dismissed an action against a defendant designated as "John Doe" and later discovered the defendant's true name and renewed the action, designating the defendant by the defendant's true name, the defendants were in substance identical, and the renewal action could claim the benefit of the tolling of the statute of limitation. Milburn v. Nationwide Ins. Co., 228 Ga. App. 398 , 491 S.E.2d 848 (1997).

Action appealed from magistrate court. - O.C.G.A. § 9-11-41(a) , the voluntary dismissal statute, could be exercised by either party in a de novo appeal filed in superior court following the entry of a judgment in themagistrate court, regardless of which party appealed. Once a landlord filed the landlord's voluntary dismissal, the landlord was also entitled to file a renewal action pursuant to O.C.G.A. § 9-2-61(a) . Jessup v. Ray, 311 Ga. App. 523 , 716 S.E.2d 583 (2011).

Timing

Meaning of "whichever is later." - Plain meaning of the phrase "whichever is later" in O.C.G.A. § 9-2-61 refers to the later date of two dates: (1) the end of the statute of limitations; or (2) six months after the date of discontinuance or dismissal; the discontinuance of a case precedes the filing of the written dismissal and the six month period begins to run on the earlier date of discontinuance. Morris v. Haren, 52 F.3d 947 (11th Cir. 1995).

Date from which renewal period runs. - Six-month period for refiling an action that was dismissed in federal court in the state court, absent a stay, began to run from the date the United States Court of Appeals affirmed the dismissal, not the date of the United States Supreme Court's denial of a subsequent petition for certiorari. Owens v. Hewell, 222 Ga. App. 563 , 474 S.E.2d 740 (1996).

Six-month period for filing a renewal action was triggered on the date a dismissal order was filed, even though the order contained an incorrect signature date which was later corrected by the filing of an amended order. Kimball v. KGB Transport, 241 Ga. App. 511 , 527 S.E.2d 233 (1999).

Computation method. - Method of computation of time in O.C.G.A. § 1-3-1(d)(3) applies to the filing of renewal actions under O.C.G.A. § 9-2-61(a) . Parsons v. Capital Alliance Fin., LLC, 325 Ga. App. 884 , 756 S.E.2d 14 (2014).

Written notice of dismissal required to begin six-month period. - Even though plaintiff's counsel informed the court of plaintiff's intent to dismiss the case, signed a voluntary dismissal that day, and served it on defense counsel by mail, no voluntary dismissal occurred until the plaintiff actually filed a written notice thereof, and the six-month renewal period did not begin until that date. Carter v. Digby, 244 Ga. App. 217 , 535 S.E.2d 286 (2000).

Renewal permitted when delay was due to computer problem. - Trial court erred in dismissing the patient's complaint because, following a computer problem causing an 8-day delay, the complaint was stamped filed on the last day of the six-month renewal period. Choice v. Fla. Men's Med. Clinic, 342 Ga. App. 157 , 802 S.E.2d 405 (2017).

Time ran from court order terminating the action. - Plaintiff's renewal action brought under the renewal statute, O.C.G.A. § 9-2-61(a) , was timely because the six-month period was calculated not from the time the plaintiff dismissed some of the defendants, but from the date of the trial court's order granting the voluntary dismissal without prejudice as to all but one of the defendants. Had the plaintiff dismissed all the defendants, no court order would have been required, and the voluntary dismissal would have been effective. Gresham v. Harris, 329 Ga. App. 465 , 765 S.E.2d 400 (2014).

Applicable statutes of limitation are not tolled during the pendency of a lawsuit. - Effect of O.C.G.A. § 9-2-61 is merely to treat a properly renewed action (i.e., an action renewed within six months of dismissal of the previous action) as standing upon the same footing, as to limitation, with the original case. Stevens v. FAA's Florist, Inc., 169 Ga. App. 189 , 311 S.E.2d 856 (1983).

Timely written notice. - When a negligence action against a county employee, in which the county had provided a defense, was dismissed, a renewal suit filed under O.C.G.A. § 9-2-61 was an action de novo and timely written notice was required to obligate the county to defend. Cleveland v. Skandalakis, 268 Ga. 133 , 485 S.E.2d 777 (1997).

Failure to serve complaint before renewal period expired. - Trial court did not err in granting summary judgment to the insurer because the insured served the insured's complaint on the insurer a month after the six-month renewal period expired and the insured had made no prior attempts to perfect service. King v. Peeples, 328 Ga. App. 814 , 762 S.E.2d 817 (2014).

Mere passage of time as grounds for dismissal. - Complaint should not have been dismissed when, although service was not perfected until 13 days after the complaint was filed, which was 11 days after the expiration of the six-month grace period of the renewal statute, the trial judge made no finding of laches, lack of diligence or any factor other than mere lapse of time, nor would the facts have supported such a finding. Bennett v. Matt Gay Chevrolet Oldsmobile, Inc., 200 Ga. App. 348 , 408 S.E.2d 111 , cert. denied, 200 Ga. App. 895 , 408 S.E.2d 111 (1991).

Statute of limitations not tolled for defendant's new counterclaims. - Defendant who previously merely interposed defenses to the original action may not for the first time seek to recover damages by counterclaim, third-party complaint, or cross-claim when the statute of limitations for the recovery of such damages has run. Champion v. Wells, 139 Ga. App. 759 , 229 S.E.2d 479 (1976).

Appeal of first case not counted in computing six months. - When a case is dismissed in the trial court under circumstances which will allow it to be refiled within six months under this section, any time during which the original ruling is on appeal shall not be counted in determining the six-month period. Schaffer v. City of Atlanta, 151 Ga. App. 1 , 258 S.E.2d 674 (1979), rev'd on other grounds, 245 Ga. 164 , 264 S.E.2d 6 (1980).

Appeal was timely and proper. - When an action is nonsuited (involuntarily dismissed) and plaintiff files a timely appeal from that judgment which is affirmed by the appellate court, plaintiff may, within six months of the date of affirmance, recommence action upon complying with the conditions imposed by this section; but when the plaintiff's appeal is dismissed by the appellate court for failure to meet statutory requirements, a new action must be recommenced within six months of the judgment of nonsuit (dismissal). Carmack v. Oglethorpe Co., 117 Ga. App. 664 , 161 S.E.2d 357 (1968).

Trial court erred by denying a debtor's refiling of an appeal as untimely because the six-month period for filing the debtor's renewal action under O.C.G.A. § 9-2-61(a) began the day after the debtor dismissed the original superior court action, and ran until December 6, 2012, based on the method of calculation under O.C.G.A. § 1-3-1(d)(3), thus, the refiling of the action on December 6 was timely. Parsons v. Capital Alliance Fin., LLC, 325 Ga. App. 884 , 756 S.E.2d 14 (2014).

Action was time barred. - Trial court did not err by finding that a parent's wrongful death claim, pursuant to O.C.G.A. § 9-2-61(a) and (c), was time-barred because the parent was not a party to the original action filed in federal court except as the representative of the son's estate; in the state court case, the estate lacked standing to bring the wrongful death claim, and the parent's claims in the parent's individual capacity were barred by the applicable two-year statute of limitations because the parent could not benefit from the renewal statute since the parent, individually, was not a party to the first action. Gish v. Thomas, 302 Ga. App. 854 , 691 S.E.2d 900 (2010).

Resident's third automobile personal injury lawsuit against a former resident was properly dismissed because service of the resident's second lawsuit was not perfected in accordance with the Georgia Long-Arm Statute, O.C.G.A. § 9-10-91 , and the period of limitations in O.C.G.A. § 9-3-33 ran before the third lawsuit (allegedly as a renewal of the second lawsuit under O.C.G.A. § 9-2-61 ) was filed. Coles v. Reese, 316 Ga. App. 545 , 730 S.E.2d 33 (2012).

Trial court properly dismissed the plaintiff's claims on the ground that the claims were time-barred because the claims were untimely, whether viewed under Georgia's renewal statute O.C.G.A. § 9-2-61(a) , or under the tolling provision of 28 U.S.C. § 1367(d), because under Georgia's renewal statute, the plaintiff was required to file the renewal action within six months of the federal appellate court's affirmance of the district court's dismissal of the first lawsuit. Gottschalk v. Woods, 329 Ga. App. 730 , 766 S.E.2d 130 (2014).

Dismissal of the complaint based on the contractual time-limitation provision in the insurance policy was proper because there was no evidence that the insurer waived enforcement of that provision, or that there was a jury question, as once mediation ended and the parties failed to reach a settlement, the insured had approximately seven months in which to file suit before the two-year limitation period expired, but the insured failed to do so. Premier Eye Care Assocs. v. Mag Mut. Ins. Co., 355 Ga. App. 620 , 844 S.E.2d 282 (2020).

Statute of limitation tolled. - Superior court erred in granting a motion to dismiss a corporation's renewal proceeding to confirm an arbitration award on the ground that it was barred by the one-year statute of limitation contained in O.C.G.A. § 9-9-12 because the application to confirm the award was a valid renewal action under O.C.G.A. § 9-2-61(c) , thereby tolling the one-year statute of limitation; the corporation's original state court application to confirm the award was dismissed for lack of subject matter jurisdiction. Warehouseboy Trading, Inc. v. Gew Fitness, LLC, 316 Ga. App. 242 , 729 S.E.2d 449 (2012).

Application

Section not applicable to action brought after running of original statute of limitation. - After the plaintiff filed and dismissed a suit for wrongful expulsion, a suit based on the same claim brought three years later was barred by the one-year statute of limitation in O.C.G.A. § 14-3-621 , and the renewal provision of O.C.G.A. § 9-2-61 did not apply to allow refiling of the suit. Atlanta Country Club, Inc. v. Smith, 217 Ga. App. 515 , 458 S.E.2d 136 (1995).

Trial court properly dismissed the second of two personal injury lawsuits, with prejudice, as such did not act as a renewal action, given evidence that the first suit, though timely filed, was void because service was never perfected; moreover, dismissal was properly entered with prejudice as res judicata barred the litigant from filing a subsequent lawsuit on a claim that was already held as time-barred. Towe v. Connors, 284 Ga. App. 320 , 644 S.E.2d 176 (2007).

In an employment discrimination case dismissed without prejudice because the former employee had not effected service within 120 days, a district court's dismissal of the Discrimination in Employment Act of 1967 (ADEA), Title VII of the Civil Rights Act of 1964 (Title VII), and American with Disabilities Act (ADA) claims in the former employee's second complaint was affirmed. The former employee's argument that the second complaint was timely renewed pursuant to O.C.G.A. § 9-2-61 was without merit since the ADEA, Title VII, and the ADA each a had 90-day statutory limitation period in which to file suit, and the former employee had not satisfied those statutory limitation periods. Miller v. Georgia, F.3d (11th Cir. Mar. 15, 2007)(Unpublished).

Insurance policy limitations period not bar to renewal action. - In a suit by a shopping center owner/mortgagee against an insurer and banks seeking damages after the insurer paid the mortgagor insurance proceeds for damages to the premises, because the owner's original action was timely filed within the two-year limitation period in the insurance policy, and the renewal case was filed within six months after the first case was dismissed, the insurance policy time limit did not provide a time-bar to any claims properly brought in the renewal action. Auto-Owners Ins. Co. v. Hale Haven Props., 346 Ga. App. 39 , 815 S.E.2d 574 (2018), cert. denied, No. S18C1423, 2019 Ga. LEXIS 75, cert. denied, No. S18C1418, 2019 Ga. LEXIS 88, cert. denied, No. S18C1421, 2019 Ga. LEXIS 92 (Ga. 2019), cert. denied, No. S18C1417, 2019 Ga. LEXIS 93 (Ga. 2019).

Statute of limitations for serving an uninsured motorist carrier is the same as that for serving the defendant tortfeasor, even though the defendant does not qualify as uninsured until after the applicable limitations period has run; thus, an insured's service on an uninsured motorist carrier of an original action was not necessary in order to allow for service in a properly filed renewal action after the running of the limitations period. Stout v. Cincinnati Ins. Co., 269 Ga. 611 , 502 S.E.2d 226 (1998).

Section inapplicable under federal Employer's Liability Act. - See Parham v. Norfolk S.R.R., 206 Ga. App. 772 , 426 S.E.2d 597 (1992).

Individuals with Disabilities Education Act. - Tolling provision of O.C.G.A. § 9-2-61 does not apply to an appeal of an educational agency's final administrative decision under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. Cory D., by & Through Diane D. v. Burke County Sch. Dist., 285 F.3d 1294 (11th Cir. 2002).

Failure to exercise due diligence. - As the evidence presented failed to support a finding that plaintiff acted with due diligence in serving the defendant with a renewed damages complaint filed pursuant to O.C.G.A. § 9-2-61(a) , or that the defendant tried to evade service, and although problems with service existed, the plaintiff presented few facts regarding the efforts made to complete service, the action was properly dismissed on service of process grounds. Fusco v. Tomlin, 285 Ga. App. 819 , 648 S.E.2d 137 (2007).

Consolidated personal injury renewal actions filed by a parent and child were properly resolved against them based on their failure to use diligence in serving a driver as no efforts were made to locate the driver even after the driver filed lack of service defenses. At that point the greatest diligence in serving the driver was required because the statute of limitations had run. Dickson v. Amick, 291 Ga. App. 557 , 662 S.E.2d 333 (2008).

Filing in new county in railroad accident case. - Since action was not barred by the statute of limitations where it was originally venued in a county in which the railroad accident in question occurred, and subsequently was voluntarily dismissed by the plaintiff over three years later, with the plaintiff refiling the suit within three months in the county in which the defendant railroad company's registered agent was located. Southern Ry. Co. v. Lawson, 174 Ga. App. 101 , 329 S.E.2d 288 (1985).

Renewal not permitted. - Because the customer's second voluntary dismissal constituted an adjudication on the merits under O.C.G.A. § 9-11-41(a)(3), the customer was barred by the res judicata effect of that provision from exercising the privilege of renewing the complaint, and the trial court erred in ruling that the third complaint was a valid renewal action. Cracker Barrel Old Country Store, Inc. v. Robinson, 341 Ga. App. 285 , 800 S.E.2d 372 (2017).

Trial court did not err by dismissing the plaintiff's personal injury lawsuit on statute-of-limitation grounds because the first lawsuit did not name the same defendant and the two lawsuits named entirely different instrumentalities of the state; thus, the instant lawsuit was not a valid renewal action. Aaron v. Jekyll Island-State Park Authority, 348 Ga. App. 332 , 822 S.E.2d 829 (2019).

Personal injury claim against a driver that was filed as a renewal action under O.C.G.A. § 9-2-61(a) was subject to summary judgment based on the statute of limitations, O.C.G.A. § 9-3-33 ; because the plaintiffs did not perfect service on the driver in the prior suit, and the statute had run, the plaintiffs could not renew the suit. The statute was not tolled under O.C.G.A. § 9-3-99 because the time for prosecuting the driver for following too closely had expired, and there had been no prosecution. Jenkins v. Keown, 351 Ga. App. 428 , 830 S.E.2d 498 (2019).

Prior Acts Discharged Under First Offender Status Excluded

Renewal proper over personal service issue. - Trial court properly denied the city's motion to dismiss the landowner's renewed petition for writ of certiorari because the case was capable of renewal under O.C.G.A. § 9-2-61(a) as the trial court had properly determined that the lack of personal service as to the zoning board of appeals did not render the petition void and, thus, a bar to renewal. City of Dunwoody v. Discovery Practice Management, Inc., 338 Ga. App. 135 , 789 S.E.2d 386 (2016).

Renewal action properly dismissed. - While plaintiff spouse of deceased patient was allowed to recommence a medical malpractice action under O.C.G.A. § 9-2-61 since it was filed within six months of dismissal of plaintiff's earlier timely filed suit, the applicable statutes of limitation had clearly run when the renewal action was filed, and, therefore, the extension provided by O.C.G.A. § 9-11-9.1 , which applied only when the complaint was filed within 10 days of the expiration of the limitations period, was not available; a trial court properly found that the spouse could not invoke the 45-day extension of O.C.G.A. § 9-11-9.1 and properly dismissed the spouse's renewal action on the basis of a failure to file an expert affidavit. Fisher v. Coffee Reg'l Med. Ctr., Inc., 268 Ga. App. 657 , 602 S.E.2d 135 (2004).

In a case in which a former employee's second complaint was not filed within the 90-day limitations period set forth in 29 U.S.C. § 626(e) and 42 U.S.C. § 2000e-5(f)(1) after the employee received a right-to-sue notice from the Equal Employment Opportunity Commission, dismissal of the former employee's second complaint alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., was affirmed because Georgia's renewal statute, O.C.G.A. § 9-2-61(a) , was inapplicable. Roberts v. Georgia, F.3d (11th Cir. Apr. 6, 2007)(Unpublished).

In an employment discrimination case in which a former employee's initial complaint was dismissed without prejudice because the former employee had not effected service within 120 days, a district court's dismissal of the former employee's 42 U.S.C. §§ 1983 and 1985 claims in a second complaint was affirmed because the claims were not timely under O.C.G.A. § 9-3-33 , the Georgia statute borrowed for 42 U.S.C. §§ 1983 and 1985 claims. Since the former employee's initial complaint had been dismissed by court order granting defendants' motions, the former employee's initial suit was void and incapable of renewal under O.C.G.A. § 9-2-61 . Miller v. Georgia, F.3d (11th Cir. Mar. 15, 2007)(Unpublished).

Passenger's personal injury action against a driver renewed pursuant to O.C.G.A. § 9-2-61(a) was dismissed for failure to perfect service of process against the driver due to lack of diligence. Although the passenger attempted to serve the driver for several months, the passenger then allowed 72 days to elapse before making another attempt. The court rejected the passenger's contention that O.C.G.A. § 33-7-11(e) , providing for personal service after service of publication while allowing litigation against an uninsured motorist carrier to proceed, allowed for an additional 12 months after service by publication. Williams v. Patterson, 306 Ga. App. 624 , 703 S.E.2d 74 (2010).

Motion to dismiss must be filed with answer or renewal action not barred. - Trial court did not err in denying the appellants' motion to dismiss because in order to bar the appellees from filing a renewal action, O.C.G.A. § 9-11-9.1(c) required the appellants to file a motion to dismiss at the same time the appellants filed the appellants' answer to the original complaint and only raising the matter as a defense in the answer was insufficient to preclude the appellees from renewing the appellees action pursuant to O.C.G.A. § 9-2-61 . Mission Health of Georgia, LLC v. Bagnuolo, 339 Ga. App. 23 , 793 S.E.2d 98 (2016).

Application for entry of judgment on arbitration award. - Second application for entry of judgment on an arbitration award was not time-barred, even though not filed within the limitations period, because it was entitled to renewal under O.C.G.A. § 9-2-61 . Hardin Constr. Group v. Fuller Enter., Inc., 233 Ga. App. 717 , 505 S.E.2d 755 (1998).

Failure to timely renew challenge to arbitration award barred subsequent suit. - Final arbitration award, which did not address the owners' breach of contract and fraud claims against a builder, barred a subsequent suit as the owners failed to timely renew their motion to vacate the award under O.C.G.A. § 9-2-61(a) after it was dismissed from a foreclosure action and the breach of contract and fraud claims had been submitted for arbitration. Witherington v. Adkins, 271 Ga. App. 837 , 610 S.E.2d 561 (2005).

Arbitration not proceeding that could be renewed. - Trial court should have dismissed an employee's tort claims against a supervisor because an arbitration between them and their employer was not a proceeding that could be renewed under O.C.G.A. § 9-2-61(a) , and the claims were untimely under O.C.G.A. § 9-3-33 since the claims were not filed within six months of the dismissal or discontinuation of the employee's earlier federal action. Green v. Flanagan, 317 Ga. App. 152 , 730 S.E.2d 161 (2012).

Right to arbitrate could be asserted in renewal action. - Renewal suit filed pursuant to O.C.G.A. § 9-2-61(a) was a de novo action and, therefore, the defendant's conduct in actively litigating and engaging in discovery for over a year in the original action had no bearing on the question of whether the defendant had waived the right to arbitration in the recommenced action. SunTrust Bank v. Lilliston, 302 Ga. 840 , 809 S.E.2d 819 (2018).

Third complaint barred when prior actions voluntarily dismissed. - Third complaint for damages arising out of an automobile collision was barred when both prior actions were voluntarily dismissed after the natural expiration of the applicable limitations period. Worley v. Pierce, 211 Ga. App. 863 , 440 S.E.2d 749 (1994).

Two voluntary dismissals barred third action despite additional plaintiffs. - Trial court correctly dismissed a shipyard owner's third civil action arising from the same set of facts under the two-dismissal rule of O.C.G.A. § 9-11-41(a)(1) and (a)(3) and the res judicata rule of O.C.G.A. § 9-12-40 because, although the first and second actions were not based upon the same claims, each of the three actions was based on the apparently complex initial financing for, and subsequent failure of, the shipyard. Global Ship Sys., LLC v. RiverHawk Group, LLC, 334 Ga. App. 860 , 780 S.E.2d 697 (2015), cert. denied, No. S16C0508, 2016 Ga. LEXIS 231 (Ga. 2016).

Third complaint was first renewal action. - Vehicle passenger's third complaint, filed after the passenger had voluntarily dismissed the passenger's first two complaints, was the passenger's first renewal action and was authorized under O.C.G.A. § 9-2-61(a) . The second complaint, which was filed while the first complaint was pending and during the limitations period, was not a renewal of a dismissed action, but a duplicate action. Shy v. Faniel, 292 Ga. App. 253 , 663 S.E.2d 841 (2008).

Trial court erred when the court granted a nonresident's motion to dismiss a driver's third complaint because the dismissal of the driver's second federal complaint was involuntary under O.C.G.A. § 9-11-41(a)(2), rather than voluntary under § 9-11-41(a)(1), and could not operate as an adjudication on the merits under § 9-11-41(a)(3); even though the driver requested the dismissal of the federal action, the dismissal itself was by an order of the federal court for a failure of the court's own jurisdiction. Crawford v. Kingston, 316 Ga. App. 313 , 728 S.E.2d 904 (2012).

Trial court erred when the court granted a nonresident's motion to dismiss a driver's third complaint because the complaint was not barred by O.C.G.A. § 9-2-61 since the driver never served the nonresident with the second federal complaint, and thus, it was void and could not amount to a renewal of the first complaint; the third complaint was intended as a renewal of the first complaint, which was voluntarily dismissed after the expiration of the applicable period of limitation, and the federal dismissal was not only involuntary but also dismissed without prejudice for lack of subject matter jurisdiction. Crawford v. Kingston, 316 Ga. App. 313 , 728 S.E.2d 904 (2012).

Application of section to all dismissals not on merits. - Law contained in this section must be construed in conformity with specific legislative enactments from which it was taken; and when thus interpreted it applies to involuntary as well as voluntary dismissals, when the merits are not adjudicated. Clark v. Newsome, 50 Ga. App. 591 , 179 S.E. 143 (1935).

Fact that one is involuntarily dismissed rather than voluntarily dismissing one's action is of no consequence so long as grounds for dismissal do not go to the merits of the case. Chance v. Planters Rural Tel. Coop., 219 Ga. 1 , 131 S.E.2d 541 (1963).

This section applies to involuntary as well as voluntary dismissals, so long as the grounds for dismissal do not adjudicate the merits. Bowman v. Ware, 133 Ga. App. 799 , 213 S.E.2d 58 (1975); Moore v. Tootle, 134 Ga. App. 232 , 214 S.E.2d 184 (1975); Brooks v. Douglas, 154 Ga. App. 54 , 267 S.E.2d 495 (1980); Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190 , 283 S.E.2d 69 (1981).

O.C.G.A. § 9-2-61 applies to involuntary as well as voluntary dismissals, when the merits are not adjudicated. Swartzel v. Garner, 193 Ga. App. 267 , 387 S.E.2d 359 (1989).

Section inapplicable when original appeal of adverse judgment voluntarily withdrawn. - Because a lender's O.C.G.A. § 9-11-41(a)(1)(A) notice to withdraw an appeal after sustaining an adverse judgment on the merits did not toll the time in which the lender was required to file a transcript on appeal, the renewal statute, O.C.G.A. § 9-2-61 , did not apply; thus, the appeal was properly dismissed pursuant to O.C.G.A. § 5-6-48(c) . Schreck v. Standridge, 273 Ga. App. 58 , 614 S.E.2d 185 (2005).

When less than all of plaintiff's claims are added or dropped, the additions and deletions are not dismissals and renewals governed by O.C.G.A. § 9-11-41(a) and subsection (a) of O.C.G.A. § 9-2-61 , but simply amendments governed by the liberal amendment rules of O.C.G.A. § 9-11-15(a) and (c). Young v. Rider, 208 Ga. App. 147 , 430 S.E.2d 117 (1993).

Void actions cannot be renewed. - Void action does not prevent statutory bar from attaching in order to bring an action which has been dismissed within the provisions of this section. Planters Rural Tel. Coop. v. Chance, 107 Ga. App. 116 , 129 S.E.2d 384 (1962), rev'd on other grounds, 219 Ga. 1 , 131 S.E.2d 541 (1963).

If the first action is void, it will not serve to extend the period within which to bring action for six months if the statute of limitations otherwise runs in the meantime. Douglas v. Kelley, 116 Ga. App. 670 , 158 S.E.2d 441 (1967).

Void action will not authorize renewal action by plaintiff under this section. Birmingham Fire Ins. Co. v. Commercial Transp., Inc., 224 Ga. 203 , 160 S.E.2d 898 (1968).

This statute only applies to voidable suits and not to those wholly void; a void judgment is an absolute nullity and does not prevent running of the statute of limitations. Baldwin v. Happy Herman's, Inc., 122 Ga. App. 520 , 177 S.E.2d 814 (1970).

This renewal statute does not apply to void actions. Murray v. Taylor, 131 Ga. App. 697 , 206 S.E.2d 643 (1974).

Since a federal court did not have jurisdiction of the subject matter, the whole proceeding was void, and it follows that O.C.G.A. § 9-2-61 did not apply, with the result that plaintiff's contractual claim was barred by the one-year limitation provision in the insurance policy. Collins v. West Am. Ins. Co., 186 Ga. App. 851 , 368 S.E.2d 772 , cert. denied, 186 Ga. App. 917 , 368 S.E.2d 772 (1988).

Since the plaintiffs never perfected service in the original suit, such suit was void and incapable of renewal. Garcia v. Virden, 236 Ga. App. 539 , 512 S.E.2d 664 (1999).

In an attempted renewal action, the original suit is void if service was never perfected since the filing of a complaint without perfecting service does not constitute a pending suit. Clark v. Dennis, 240 Ga. App. 512 , 522 S.E.2d 737 (1999).

Renewal statute did not apply because a prior federal action was void, rather than voidable, since: (1) the action was not commenced within the applicable statute of limitation as service was not timely perfected; and (2) the action was not dismissed voluntarily at the plaintiff's behest. Tate v. Coastal Utils., Inc., 247 Ga. App. 738 , 545 S.E.2d 124 (2001).

When the trial court's dismissal in the original action was based upon the court's finding that the plaintiff had not acted diligently in perfecting service on the defendant, that determination rendered the original action void; accordingly, the renewal statute did not apply and the trial court properly dismissed the plaintiff's second complaint. King v. Wal-Mart Stores, Inc., 250 Ga. App. 103 , 550 S.E.2d 673 (2001).

Since service was never perfected in the plaintiff's original false imprisonment and false arrest suit, that suit was void, and thus the renewal provisions of O.C.G.A. § 9-2-61(a) did not protect the second suit from the bar of the statute of limitation since the second suit was not a renewal suit. McClendon v. Kroger Co., 279 Ga. App. 417 , 631 S.E.2d 461 (2006).

Georgia's tolling provision for "renewal actions" under O.C.G.A. § 9-2-61(a) did not apply since the first 42 U.S.C. § 1983 action was void because service was never perfected on defendants. Wilson v. Hamilton, F.3d (11th Cir. May 6, 2005)(Unpublished).

In a personal injury suit arising from the slip and fall by the injured party, because the trial court dismissed the injured party's first action as void for failure to perfect service, the second action could not amount to a renewal action under O.C.G.A. § 9-2-61(a) ; further, given that the second complaint disclosed on its face that the action was time-barred, it was correctly dismissed pursuant to O.C.G.A. § 9-3-33 . Baxley v. Baldwin, 287 Ga. App. 245 , 651 S.E.2d 172 (2007).

In a case in which a former employee's first complaint was authorized to be dismissed pursuant to Fed. R. Civ. P. 4(m), dismissal of the former employee's second complaint alleging violations of, inter alia, 42 U.S.C. §§ 1983 and 1985 was affirmed because Georgia's renewal statute was inapplicable. The first complaint was void for purposes of O.C.G.A. § 9-2-61(a) . Roberts v. Georgia, F.3d (11th Cir. Apr. 6, 2007)(Unpublished).

Because dismissal of a medical malpractice suit for failure to comply with the expert affidavit requirements rendered the suit void and incapable of being renewed under O.C.G.A. § 9-2-61 , and the two-year limitation period in O.C.G.A. § 9-3-71(a) had expired, the suit was properly dismissed. Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833 , 769 S.E.2d 575 (2015).

Third complaint not an attempt at renewing void action. - In filing a third complaint after voluntarily dismissing two previous complaints, a vehicle passenger was not trying to renew a void action. The third complaint explicitly stated that the complaint was intended as a renewal of the first suit, in which service had been perfected, and not of the second suit, in which service had not been perfected. Shy v. Faniel, 292 Ga. App. 253 , 663 S.E.2d 841 (2008).

Since the complaint was not served on defendant prior to dismissal, the first action was not valid and, therefore, the renewal provision of O.C.G.A. § 9-2-61 was not available to allow the plaintiff to avoid the statute of limitations bar to the plaintiff's second suit. Hudson v. Mehaffey, 239 Ga. App. 705 , 521 S.E.2d 838 (1999).

Because an insured who brought a personal injury suit against an alleged tortfeasor had never personally served the alleged tortfeasor when the original action was filed, the action was not valid prior to dismissal and thus was not subject to renewal under O.C.G.A. § 9-2-61 . Accordingly, the present action was time-barred under O.C.G.A. § 9-3-33 . Williams v. Hunter, 291 Ga. App. 731 , 662 S.E.2d 810 (2008).

O.C.G.A. § 9-2-61 does not apply if the original suit was void. Fine v. Higgins Foundry & Supply Co., 201 Ga. App. 275 , 410 S.E.2d 821 (1991).

Section applies only when action dismissed was valid. Southern Flour & Grain Co. v. Simmons, 49 Ga. App. 517 , 176 S.E. 121 (1934).

Because a declaratory judgment action filed by parents against underwriters was dismissed for lack of standing, a nonamendable defect, there was no valid suit to be renewed under O.C.G.A. § 9-2-61 . Mikell v. Certain Underwriters at Lloyds, London, 288 Ga. App. 430 , 654 S.E.2d 227 (2007).

This section has reference to tolling of the statute of limitations and applies only when there has been a valid pending action. Brinson v. Kramer, 72 Ga. App. 63 , 33 S.E.2d 41 (1945); Sosebee v. Steiner, 128 Ga. App. 814 , 198 S.E.2d 325 (1973).

O.C.G.A. § 9-2-61 applies only if the original action is a valid suit. Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190 , 283 S.E.2d 69 (1981); Hornsby v. Hancock, 165 Ga. App. 543 , 301 S.E.2d 900 (1983).

O.C.G.A. § 9-2-61 is available only when the original action was a "valid suit"; if a complaint is dismissed for a defect that is nonamendable, there is no "valid suit" to be renewed. Foskey v. Foster, 199 Ga. App. 205 , 404 S.E.2d 303 (1991), overruled on other grounds, Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145 , 682 S.E.2d 165 (2009).

In order for the filing of a complaint to qualify as a valid renewal of a previously dismissed action, the proceedings which were dismissed must have constituted a "valid action." Pursuant to this, it is essential that the declaration filed in the first instance should have been served personally upon the defendant or otherwise in accordance with O.C.G.A. § 9-11-4(d)(7). Service upon the defendant's parent at the parent's residence is not "service" within the meaning of § 9-11-4(d)(7). Osborne v. Hughes, 200 Ga. App. 558 , 409 S.E.2d 58 , cert. denied, 200 Ga. App. 896 , 409 S.E.2d 58 (1991).

Renewal statute is inapplicable if the original complaint did not constitute a "valid action" before dismissal. Scott v. Muscogee County, 949 F.2d 1122 (11th Cir. 1992).

Since the plaintiff filed an original action when the defendant was a minor, but did not serve the defendant's parents as required by O.C.G.A. § 9-11-4 , the plaintiff's first suit was void and no valid action existed which was renewable under O.C.G.A. § 9-2-61 . Brooks v. Young, 220 Ga. App. 47 , 467 S.E.2d 230 (1996), overruled on other grounds, Allen v. Kahn, 231 Ga. App. 438 , 499 S.E.2d 164 (1998).

Voidable actions are renewable. - This section will apply to actions that are voidable, but not wholly void. Cutliffe v. Pryse, 187 Ga. 51 , 200 S.E. 124 (1938).

Privilege of dismissal and renewal under this section does not apply to void cases, but does apply to allow renewal when the previous action was merely voidable. United States Cas. Co. v. AMOCO, 104 Ga. App. 209 , 121 S.E.2d 328 (1961); Keramidas v. Department of Human Resources, 147 Ga. App. 820 , 250 S.E.2d 560 (1978); Patterson v. Douglas Women's Center, 258 Ga. 803 , 374 S.E.2d 737 (1989).

Even though an uninsured motorist insurer could have raised the statute of limitations in an action by the insured, but the insured voluntarily dismissed the case before the insurer had an opportunity to do so, the case was merely voidable until the trial court ruled on the defense, and, thus, a renewal action by the insured was proper. Reid v. United States Fid. & Guar. Co., 223 Ga. App. 204 , 477 S.E.2d 369 (1996), aff'd, 268 Ga. 432 , 491 S.E.2d 50 (1997).

Suit in which an uninsured motorist carrier was served after the running of the statute of limitations was subject to dismissal and renewal under O.C.G.A. § 9-2-61 . United States Fid. & Guar. Co. v. Reid, 268 Ga. 432 , 491 S.E.2d 50 (1997).

Insured's filing of a "John Doe" action with service on the insured's uninsured motorist insurance carrier constituted a valid, pending action which was voidable rather than void, and which was capable of being renewed under O.C.G.A. § 9-2-61 . Milburn v. Nationwide Ins. Co., 228 Ga. App. 398 , 491 S.E.2d 848 (1997).

While a trial court was authorized to dismiss a complaint for failure to state a claim when a lawsuit was filed after the expiration of the statute of limitation, until such time as the court ruled on the asserted affirmative defense of the expiration of the statute of limitation, the action was voidable, not void. Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 272 Ga. 209 , 528 S.E.2d 508 (2000).

Voidable actions are renewable. - Absent any judicial determination that dismissal was required for lack of an approved bond, the petitioners were entitled to voluntarily dismiss their first request for certiorari, filed pursuant to O.C.G.A. § 5-4-1 , relying on renewal statute codified at O.C.G.A. § 9-2-61(a) , and file a second request after the 30-day limitation period had expired; moreover, the first petition was a valid action which was merely voidable and not void. Buckler v. DeKalb County, 290 Ga. App. 190 , 659 S.E.2d 398 (2008).

Based on O.C.G.A. § 9-11-9.1 and the renewal statute of O.C.G.A. § 9-2-61 , the failure to file the required expert affidavit contemporaneously with a medical malpractice complaint does not render the complaint void ab initio but merely voidable and that the complaint can be renewed. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145 , 682 S.E.2d 165 (2009), aff'd, 287 Ga. 406 , 696 S.E.2d 640 (2010).

Section inapplicable to reposed actions. - O.C.G.A. § 9-2-61 does not apply to actions effectively reposed under O.C.G.A. § 9-3-71(b) . Wright v. Robinson, 262 Ga. 844 , 426 S.E.2d 870 (1993); Burns v. Radiology Assocs., 214 Ga. App. 76 , 446 S.E.2d 788 (1994); Hanflik v. Ratchford, 848 F. Supp. 1539 (N.D. Ga. 1994), aff'd, 56 F.3d 1391 (11th Cir. 1995); Thompson v. Long, 225 Ga. App. 719 , 484 S.E.2d 666 (1997), cert. denied, 522 U.S. 1147, 118 S. Ct. 1165 , 140 L. Ed. 2 d 175 (1998).

Action on contract is not renewal of action of trover. Southern Express Co. v. Sinclair, 135 Ga. 155 , 68 S.E. 1113 (1910).

Section not available to add new parties. - Interaction of O.C.G.A. § 9-2-61 with the amendment provisions of O.C.G.A. § 9-11-15(c) does not permit the addition of a new party to a second lawsuit which is filed within the six-month renewal period but outside the statute of limitations. Wagner v. Casey, 169 Ga. App. 500 , 313 S.E.2d 756 (1984); Patterson v. Rosser Fabrap Int'l, Inc., 190 Ga. App. 657 , 379 S.E.2d 787 , cert. denied, 190 Ga. App. 898 , 379 S.E.2d 787 (1989); Allstate Ins. Co. v. Baldwin, 244 Ga. App. 664 , 536 S.E.2d 558 (2000).

Georgia renewal statute, O.C.G.A. § 9-2-61 , could not have been used to suspend the running of the statute of limitation as to defendants different from those originally sued; the trial court did not err in dismissing a premises liability complaint when the injured person originally sued an incorrect defendant, then later sued the store owner after the statute of limitations had expired, then, after that case was dismissed, again sued the original incorrect defendant, and finally amended the complaint to include the store owner. Brown v. J. H. Harvey Co., 268 Ga. App. 322 , 601 S.E.2d 808 (2004).

Statute not applicable if claims plaintiff filed in first lawsuit were dismissed on merits. - Court of appeals affirmed a district court's judgment dismissing an action which an arrestee filed, pursuant to 42 U.S.C. § 1983, against a police officer and others because the action was filed more than two years after the arrestee was allegedly injured while being arrested, and the claim was untimely under O.C.G.A. § 9-3-33 . The court rejected the arrestee's claims that the arrestee's lawsuit was timely under Georgia's renewal statute, O.C.G.A. § 9-2-61(a) , and Fed. R. Civ. P. 15(c) based on the filing of an earlier lawsuit against the same police officer and defendants who were not named in this second lawsuit less than two years after the arrestee was arrested because the claims in the original lawsuit were dismissed on the merits. Oduok v. Phillips, F.3d (11th Cir. 2005)(Unpublished).

Section not available to add new claim. - Since the original action, alleging only negligence, was dismissed without prejudice and the plaintiff amended the complaint in an action refiled under O.C.G.A. § 9-2-61 to add a claim of nuisance, that claim was barred by the statute of limitation. Alfred v. Right Stuff Food Stores, Inc., 241 Ga. App. 338 , 525 S.E.2d 717 (1999).

Employee could not amend a complaint to state a cause of action for intentional infliction of emotional distress against an employer upon renewal of the complaint under O.C.G.A. § 9-2-61(a) as the renewed causes of action had to state substantially the same causes of action as the prior ones in order to avoid the statute of limitations bar; such a claim was not evident in the employee's prior complaint. Travis Pruitt & Assocs., P.C. v. Hooper, 277 Ga. App. 1 , 625 S.E.2d 445 (2005).

Section not available against different defendants. - Action against a different defendant is not a renewal. Floyd & Lee v. Boyd, 16 Ga. App. 43 , 84 S.E. 494 (1915).

This section may not be used to suspend running of the statute of limitations as to defendants different from those originally sued. Cornwell v. Williams Bros. Lumber Co., 139 Ga. App. 773 , 229 S.E.2d 551 (1976).

Renewal action could not be brought against the executrix of an estate to evade the statute of limitation bar since neither the deceased nor the estate had been named as a party defendant in the original action. Reedy v. Fischer, 193 Ga. App. 684 , 388 S.E.2d 759 (1989); Sletto v. Hospital Auth., 239 Ga. App. 203 , 521 S.E.2d 199 (1999).

Joinder of all original defendants not always required. - Renewed action brought under this section must be on the same cause of action and against the same essential parties, but need not necessarily be brought against all defendants who were parties in the dismissed action, unless all were necessary parties to the first action. Burks v. Wheeler, 92 Ga. App. 478 , 88 S.E.2d 793 (1955); Thornhill v. Bullock, 118 Ga. App. 186 , 162 S.E.2d 886 (1968), overruled on other grounds, McMichael v. Georgia Power Co., 133 Ga. App. 593 , 211 S.E.2d 632 (1974).

In determining whether defendant in first action is necessary party in second, it must be determined whether or not a right of contribution actually existed, but whether in the event the plaintiff recovered against defendants, a right of contribution would then exist. Chapman v. Lamar-Rankin Drug Co., 64 Ga. App. 493 , 13 S.E.2d 734 (1941).

Actions against joint tort-feasors. - When liability of defendants is joint and several, with no right of contribution, as in libel, second action against all defendants to the first is within this section. Cox v. Strickland, 120 Ga. 104 , 47 S.E. 912 , 1 Ann. Cas. 870 (1904).

When action was brought in a certain county against the county and an individual residing in a different county as alleged joint tort-feasors, and was dismissed as to the county because it did not state a cause of action and as to the individual because in absence of the county as codefendant the court had no jurisdiction of the codefendant, this section would permit the plaintiff to renew the action against the individual defendant within six months from dismissal as to such defendant. Clark v. Newsome, 50 Ga. App. 591 , 179 S.E. 143 (1935).

When the plaintiff in the first action elected to sue the defendants jointly, such that defendants would be entitled to contribution, a subsequent action against only one of such defendants would not prevent bar of the statute of limitations from attaching to the cause of action. Chapman v. Lamar-Rankin Drug Co., 64 Ga. App. 493 , 13 S.E.2d 734 (1941).

When action was brought against joint tort-feasors, each of whom was jointly suable but severally liable, it was not necessary in renewed action brought under this section that all defendants be parties, even when the original action was timely brought before the statute of limitations had run but the parties were stricken in renewing action after the statutory period had expired. Burks v. Wheeler, 92 Ga. App. 478 , 88 S.E.2d 793 (1955).

Application to third-party complaints. - O.C.G.A. § 9-2-61 applied to allow a defendant who filed and then dismissed a third-party complaint to renew the defendant's case after dismissal without prejudice. Bertone v. Wilkinson, 213 Ga. App. 255 , 444 S.E.2d 576 (1994).

Renewal action was not timely, since the third-party complaint in the prior related action had only stated claims for contribution and indemnification and did not put the defendant on notice of a claim for personal injuries within the applicable statute of limitation. Bertone v. Wilkinson, 213 Ga. App. 255 , 444 S.E.2d 576 (1994).

Defendant in capacity as individual and as deputy. - Renewal action against a party not named in the original complaint cannot be maintained. O.C.G.A. § 9-2-61 may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued. Accordingly, plaintiff's action against defendant in a capacity as deputy sheriff was barred by the statute of limitations since the original action was against defendant personally. Soley v. Dodson, 256 Ga. App. 770 , 569 S.E.2d 870 (2002).

Defendant in trustee capacity substantially different from defendant as individual. - Since the original petition was brought against the defendant in an alleged representative trustee capacity and against trust property, a second action brought within six months after dismissal of the first, against the defendant only in an individual capacity, praying only for general judgment against it, is not a renewal such as will toll the statute of limitations, since it involves a substantially different defendant and shows no exception to the general rule as to the requirement of identity of parties in order to suspend the statute of limitations. Sheldon & Co. v. Emory Univ., 184 Ga. 440 , 191 S.E. 497 (1937).

Renewal against company formed from merger with previous defendant. - Since, while the case was pending, a company was merged with another and ceased to exist as a separate entity, renewal of an action against the company resulting from the merger was permissible. Atlantic Coast Line R.R. v. Knapp, 139 Ga. 422 , 77 S.E. 568 (1913).

Sole shareholder not named in first suit. - Refiling of a case under O.C.G.A. § 9-2-61 did not toll the statute of limitations against the sole shareholder of a corporation since the first suit named only the corporation as a defendant, whereas the second suit added the shareholder as a defendant for the first time. Heyde v. Xtraman, Inc., 199 Ga. App. 303 , 404 S.E.2d 607 , cert. denied, 199 Ga. App. 906 , 404 S.E.2d 607 (1991).

Action against partner following dismissal of action against partnership. - When one sues a partnership and the action is nonsuited (involuntarily dismissed), one cannot recommence action against one of the partners individually. Ford v. Clark, 75 Ga. 612 (1885).

When action against a partnership has been nonsuited (involuntarily dismissed) and another action instituted against an individual whom it was alleged belonged to or was a member of a partnership firm formerly sued, the bar of the statute of limitations will not be prevented from attaching to a cause of action under this section. Southern Flour & Grain Co. v. Simmons, 49 Ga. App. 517 , 176 S.E. 121 (1934).

Amendment to action brought by CEO and investment company against corporation related back. - Trial court did not err in refusing to dismiss, as time barred, a complaint brought by a CEO and an investment company against a corporation because, although originally filed as a declaratory judgment action, the CEO and the investment company filed an amendment seeking indemnification and a money judgment; since there had been no entry of a pretrial order, the amendment-expressly stating that no declaratory judgment was being sought-related back to the date the original complaint was filed in state court and the complaint was not a nullity. Thus, the claim was timely under the renewal statute, O.C.G.A. § 9-2-61(a) . McKesson Corp. v. Green, 299 Ga. App. 91 , 683 S.E.2d 336 (2009).

Renewal following voluntary dismissal of medical malpractice action was not required to have been accomplished within two years of the date of injury. Floyd v. Piedmont Hosp., 213 Ga. App. 749 , 445 S.E.2d 844 (1994).

Renewal action against administrator or representative of deceased defendant in action voluntarily dismissed by plaintiff may take advantage of tolling of the statute of limitations for six months under this section. Wofford v. Central Mut. Ins. Co., 242 Ga. 338 , 249 S.E.2d 21 (1978).

Action against additional personal representatives. - When action instituted against an estate having more than one personal representative was abated for nonjoinder of some of the representatives, this section applies to a second action against the estate with all the representatives joined as defendants. Greenfield v. Farrell Heating & Plumbing Co., 17 Ga. App. 637 , 87 S.E. 912 (1916).

Renewal action by plaintiff's administrator is same as renewal by plaintiff. Wofford v. Central Mut. Ins. Co., 242 Ga. 338 , 249 S.E.2d 21 (1978).

Action renewed or recommenced by representative of deceased plaintiff is brought by the same plaintiff, in contemplation of this section, just as when action is instituted by successive trustees, since the cause of action and cestui que trust are the same. Moody v. Threlkeld, 13 Ga. 55 (1853).

Failure to serve subsequent defendants. - Injured prison inmate's failure to serve subsequent defendants in original federal court case for alleged civil rights violations precluded the inmate from using the saving provision of subsection (a) of O.C.G.A. § 9-2-61 , since in order to bring a dismissed action within its scope, so as to make the action stand upon the same footing as to limitation as the original case, it is essential that the declaration filed in the first instance should have been served upon the defendant. Wimberly v. Department of Cors., 210 Ga. App. 57 , 435 S.E.2d 67 (1993).

Equitable estoppel not relevant when failure to serve. - Court of appeals correctly reversed a trial court's grant of summary judgment to a driver and a corporation, which was based on a second driver's lack of diligence in serving the second driver's personal injury complaint in the second driver's voluntarily dismissed original action because that driver was not equitably estopped from proceeding with the driver's renewal action; the first driver and corporation did not allege an affirmative act of deception, and to the extent that the second driver had a duty to speak to them, it was to inform them of the lawsuit, but that duty was defined by the Georgia Code, which included the renewal statute, O.C.G.A. § 9-2-61 . Robinson v. Boyd, 288 Ga. 53 , 701 S.E.2d 165 (2010).

Action on nonnegotiable instrument by different plaintiff. - When a new action on a nonnegotiable instrument is commenced by another and different plaintiff, pendency and dismissal of the former action will not avoid bar of the statute. Moss v. Keesler, 60 Ga. 44 (1878).

Rule requiring substantial identity of essential parties is not violated if a party in the later case is the successor trustee or other representative of an original party who occupied the same position as plaintiff or defendant, or if the first action was dismissed for nonjoinder of one of the representatives of the estate, who is added as party to the second action, or if the first action is brought against two defendants, dismissed as to both, and renewed as to only one; or if the difference is merely as to nominal or unnecessary parties. Sheldon & Co. v. Emory Univ., 184 Ga. 440 , 191 S.E. 497 (1937).

Same cause of action required. - When petition seeks to renew a former action within six months of its dismissal, which would otherwise be barred by statute of limitations, but for this section, it must appear from the renewal petition that the new action is substantially the same cause of action as that of the former action. Barber v. City of Rome, 39 Ga. App. 225 , 146 S.E. 856 (1929).

Based on O.C.G.A. § 9-2-61 , an arrestee's excessive force claim against a sheriff's major in the major's individual capacity was revived after a voluntary dismissal but assuming that the complaint alleged actual malice under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d), as to the major's conduct, the tort claim had to be brought against the state under O.C.G.A. § 50-21-25(b) ; however, the state did not waive the state's sovereign immunity under O.C.G.A. § 50-21-23(b) for such claim to be brought in federal court. Jude v. Morrison, 534 F. Supp. 2d 1365 (N.D. Ga. 2008).

Assertion of same claims. - Trial court did not err by concluding that the claims in a renewed action were sufficiently similar to the original claims against a corporation's executive officer (CEO) so that the statute of limitation was tolled under the renewal statute, O.C.G.A. § 9-2-61(a) , because in both complaints the plaintiffs claimed the same allegations against the CEO. Cushing v. Cohen, 323 Ga. App. 497 , 746 S.E.2d 898 (2013).

Second action does not have to be a literal copy of the one dismissed. Cox v. Strickland, 120 Ga. 104 , 47 S.E. 912 , 1 Ann. Cas. 870 (1904).

This section is a remedial statute and is to be liberally construed; hence, while the second action must be substantially the same cause of action, it does not have to be a literal copy of the one which was dismissed. Cox v. Strickland, 120 Ga. 104 , 47 S.E. 912 , 1 Ann. Cas. 870 (1904); Guest v. Atlantic Coast Line R.R., 37 Ga. App. 102 , 139 S.E. 97 (1927), cert. denied, 37 Ga. App. 833 , 139 S.E. 97 (1928).

Additional allegations and defenses on renewal. - On renewal, plaintiff may allege additional facts or contentions, and defendant likewise may interpose such defensive pleadings as the defendant may deem best. Robinson v. Attapulgus Clay Co., 55 Ga. App. 141 , 189 S.E. 555 (1937).

New facts, contentions and defenses may be alleged in renewed action. - Plaintiff, on renewal, may allege additional facts or contentions, and the defendant likewise can interpose such defensive pleadings as the defendant may deem best. Hornsby v. Hancock, 165 Ga. App. 543 , 301 S.E.2d 900 (1983).

Suit which has been dismissed and renewed, even in the same court, may be defended on renewal on the grounds of venue though no such defense was raised in the original action. Hornsby v. Hancock, 165 Ga. App. 543 , 301 S.E.2d 900 (1983).

New claims not permitted if expired by statute of limitations. - Even though the patient and husband's renewal action was timely filed because it was filed within six months after the dismissal of the original action, the trial court should have granted the psychologist and clinic's motion for judgment on the pleadings as to the patient and husband's sexual assault, battery, and loss of consortium claims raised in the refiled action since those claims were not raised in the original complaint and the statute of limitations on the claims had expired by the time those claims were filed in the refiled action. Blier v. Greene, 263 Ga. App. 35 , 587 S.E.2d 190 (2003).

Use of admissions made in original action. - Plain language of O.C.G.A. § 9-11-36(b) confines the use of admissions made pursuant to such discovery tool to the action in which they are made and forbids their use in a subsequent or other action, including a renewal action under O.C.G.A. § 9-2-61 . Mumford v. Davis, 206 Ga. App. 148 , 424 S.E.2d 306 (1992).

This section does not prevent defendant from filing such proceedings as the defendant deems best as against recommenced action. Robinson v. Attapulgus Clay Co., 55 Ga. App. 141 , 189 S.E. 555 (1937).

Right of counterclaimant to renew. - Since a counterclaimant is the plaintiff in the counterclaiment's own right in asserting a counterclaim, O.C.G.A. § 9-2-61 gives a counterclaimant the right of renewal within six months of the discontinuing or dismissing of the case. Cale v. Jones, 176 Ga. App. 865 , 338 S.E.2d 68 (1985).

Defendant who voluntarily dismissed without prejudice a compulsory counterclaim could not renew it as an original action under O.C.G.A. § 9-2-61 after the plaintiff had voluntarily dismissed with prejudice the main claim without objection by the defendant because renewal of the counterclaim was barred by res judicata. Robinson v. Stokes, 229 Ga. App. 25 , 493 S.E.2d 5 (1997).

This section applies when case is dismissed for want of prosecution. Rountree v. Key, 71 Ga. 214 (1883).

Action against municipality may be renewed when petition in the first action failed to comply with the formalities of former Civil Code 1910, § 910 (see now O.C.G.A. § 36-33-5 ). City of Tallapoosa v. Brock, 28 Ga. App. 384 , 111 S.E. 88 (1922).

This section applies to all ordinary actions, including ejectment actions. Moss v. Keesler, 60 Ga. 44 (1878).

O.C.G.A. § 9-2-61 applies to appeals and certiorari from lower courts and if a certiorari petition is involuntarily dismissed for failure to prosecute, it may be renewed within six months. Genins v. City of Atlanta, 203 Ga. App. 269 , 416 S.E.2d 838 (1992).

This section applies to applications for second writ of certiorari from inferior judicatory, where the first writ has been dismissed for a reason not affecting the merits, and the second is filed within the six-month period for renewal. Schaffer v. City of Atlanta, 151 Ga. App. 1 , 258 S.E.2d 674 (1979), rev'd on other grounds, 245 Ga. 164 , 264 S.E.2d 6 (1980).

This section applies to certiorari proceedings. Brown v. Seals, 17 Ga. App. 4 , 86 S.E. 277 (1915); Brackett v. Sebastian, 18 Ga. App. 525 , 89 S.E. 1102 (1916).

When valid certiorari has been dismissed, it may be renewed within six months under this section. Gragg Lumber Co. v. Collins, 37 Ga. App. 76 , 139 S.E. 84 (1927); Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123 , 177 S.E. 260 (1934).

Petition for certiorari which is void for any reason cannot be renewed. Talley v. Commercial Credit Co., 173 Ga. 828 , 161 S.E. 832 (1931), answer conformed to, 44 Ga. App. 587 , 162 S.E. 289 (1932).

When certiorari was dismissed because of want of compliance with former Civil Code 1910, § 4365 (see now O.C.G.A. § 5-4-6 ), petition for certiorari and writ of certiorari were invalid; hence, there was no case which could be recommenced within six months as provided in former Civil Code 1910, § 4381 (see now O.C.G.A. § 9-2-61 ). Butters Mfg. Co. v. Sims, 47 Ga. App. 648 , 171 S.E. 162 (1933).

Void certiorari cannot be renewed. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300 , 175 S.E. 267 (1934); Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123 , 177 S.E. 260 (1934).

Application for certiorari following dismissal for lack of service. - Failure to serve the officer whose decision it is sought to review may cause a dismissal, but such dismissal does not bar a second application for certiorari when it is made to appear that such a fact is the sole reason for the dismissal and that it is not a decision on the merits. City of Atlanta v. Saunders, 159 Ga. App. 566 , 284 S.E.2d 77 (1981).

Refiling of state claim in state court after dismissal in federal court. - Georgia law allows plaintiffs to refile their state claims in a state court upon a voluntary dismissal of the claims in a federal court. Hubbard v. Stewart, 651 F. Supp. 294 (M.D. Ga. 1987).

Plaintiffs may renew their state law claims in state court within six months of the dismissal of their claims by a federal district court, when the merits of the pendent state law claims were not reached by the federal court. O'Neal v. DeKalb County, 667 F. Supp. 853 (N.D. Ga. 1987), aff'd, 850 F.2d 653 (11th Cir. 1988).

Section applicable in federal court when action originally in state court. - In certain circumstances, O.C.G.A. § 9-2-61 is to be applied in a United States District Court the same as it is applied in the courts of the state. Where plaintiffs voluntarily dismissed a state court action and recommenced within six months in federal court, the renewed case stands upon the same footing, as to limitation, with the original case. The statute of limitations has therefore not expired. Lamb v. United States, 526 F. Supp. 1117 (M.D. Ga. 1981).

Section inapplicable in federal court actions. - When the original action was commenced in state court and removed to federal court, when it was dismissed, the action could not be renewed in the state court. Cox v. East Tenn. & Ga. R.R., 68 Ga. 446 (1882); Webb v. Southern Cotton Oil Co., 131 Ga. 682 , 63 S.E. 135 (1908).

Action dismissed in federal court cannot be renewed in state courts. Constitution Publishing Co. v. DeLaughter, 95 Ga. 17 , 21 S.E. 1000 (1894).

Action brought in state court, properly removed by the defendant to federal court having concurrent jurisdiction, and there dismissed on the plaintiff's motion, cannot, under this section, be renewed in state court within six months of such dismissal, so as to avoid the bar of the statute of limitations. Ivester v. Southern Ry., 61 Ga. App. 364 , 6 S.E.2d 214 (1939).

Statute of limitations for an action for the same cause which has previously been filed in federal district court and there dismissed is not tolled by this section, which is not applicable to suits commenced in federal courts. Nevels v. Detroiter Mobile Homes, 124 Ga. App. 112 , 183 S.E.2d 77 (1971).

This section is not applicable when the original action was filed in federal court but is applicable only to actions originally filed in state courts of Georgia. Hudnall v. Kelly, 388 F. Supp. 1352 (N.D. Ga. 1975).

While choice of forums is the litigant's, this section will be no protection if the litigant chooses the federal forum. Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80 , 240 S.E.2d 284 (1977).

This section does not apply to actions first commenced in federal court. Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80 , 240 S.E.2d 284 (1977); Laine v. Wright, 586 F.2d 607 (5th Cir. 1978).

Words "court of this state" in this section mean "courts created by the constitution and laws of this state"; accordingly, this section does not apply to actions brought in federal court sitting in this state. Diversified Mtg. Investors v. Georgia-Carolina Indus. Park Venture, 463 F. Supp. 538 (N.D. Ga. 1978).

This rule does not apply where the original filing is in federal court. Blaustein v. Harrison, 160 Ga. App. 256 , 286 S.E.2d 758 (1981).

Rule that O.C.G.A. § 9-2-61 does not apply when the original filing is in federal court is not unconstitutional as it is based upon United States Supreme Court precedent. Blaustein v. Harrison, 160 Ga. App. 256 , 286 S.E.2d 758 (1981).

Since the employee's discrimination suit against the employer was based on Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the court rejected the employee's contention that state law, not federal law, governed the voluntary dismissal of the employee's complaint and that O.C.G.A. § 9-2-61(a) afforded the employee a second chance to file the employee's original complaint as long as the employer received notice of the lawsuit. The suit was filed pursuant to Title VII, a federal law that contained a statute of limitations. Weldon v. Elec. Data Sys. Corp., F.3d (11th Cir. May 4, 2005)(Unpublished).

Actions filed in other jurisdictions. - This section is inapplicable when the case was originally filed in a jurisdiction other than Georgia. Sherrill v. U.S. Fid. & Guar. Co., 108 Ga. App. 591 , 133 S.E.2d 896 (1963).

O.C.G.A. § 9-2-61 is inapplicable to Federal Employers' Liability Act (45 U.S.C. § 51 et seq.) actions. Smith v. Seaboard Sys. R.R., 179 Ga. App. 822 , 348 S.E.2d 97 (1986).

Section inapplicable to collection of Interstate Commerce Act demurrage charges. - O.C.G.A. § 9-2-61 cannot operate to save a cause of action for collection of demurrage charges filed pursuant to the Interstate Commerce Act 49 U.S.C. § 101 et seq. J.F. Barton Contracting Co. v. Southern Ry., 191 Ga. App. 13 , 380 S.E.2d 724 (1989).

This section has no application under the Workers' Compensation Act. Southern Cotton Oil Co. v. McLain, 49 Ga. App. 177 , 174 S.E. 726 (1934); Hicks v. Standard Accident Ins. Co., 52 Ga. App. 828 , 184 S.E. 808 (1936); Gordy v. Callaway Mills Co., 111 Ga. App. 798 , 143 S.E.2d 401 (1965).

Former Civil Code 1910, § 4381 (see now O.C.G.A. § 9-2-61 ) did not apply to actions to foreclose a materialman's lien on real estate under former Civil Code 1910, § 3353 (see now O.C.G.A. § 44-14-361.1 ). Chamblee Lumber Co. v. Crichton, 136 Ga. 391 , 71 S.E. 673 (1911).

O.C.G.A. § 9-2-61 does not apply to claims before the State Board of Workers' Compensation. Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190 , 283 S.E.2d 69 (1981).

This section does not apply to foreclosure of lien on sawmill. Walker v. Burt, 57 Ga. 20 (1876).

This section has no application to disbarment proceeding. Williford v. State, 56 Ga. App. 840 , 194 S.E. 384 (1937).

Section inapplicable where limitation created by contract. - When a party to an insurance policy agrees to sue within one year, or not at all, this section does not apply to an action on the policy. Melson v. Phoenix Ins. Co., 97 Ga. 722 , 25 S.E. 189 (1896).

When an action was barred by a limitation in a contract with a carrier, this section did not apply. Leigh Ellis & Co. v. Payne, 274 F. 443 (N.D. Ga.), aff'd, 276 F. 400 (5th Cir. 1921), cert. denied, 257 U.S. 659, 42 S. Ct. 187 , 66 L. Ed. 422 (1922), aff'd, 260 U.S. 682, 43 S. Ct. 243 , 67 L. Ed. 460 (1923).

The Georgia "savings" statute, subsection (a) of O.C.G.A. § 9-2-61 , does not operate to save a renewed action from a contractual limitations period, such as that in an insurance policy. Stenger Indus., Inc. v. International Ins. Co., 74 Bankr. 1017 (N.D. Ga. 1987).

Filing third suit following dismissal of second suit for failing to pay costs of original suit. - If a O.C.G.A. § 9-11-41(b) dismissal for failure to make payment of costs in the original suit prior to filing of a second suit occurs within the period of the statute of limitations, there is nothing to prevent the plaintiff from paying costs in both dismissed suits and filing a third suit so long as the first dismissal did not act as an adjudication on the merits. Little v. Walker, 250 Ga. 854 , 301 S.E.2d 639 (1983).

Dismissal of action for failure to pay previous fees and costs. - When the consumer's products liability action was dismissed without prejudice under Fed. R. Civ. P. 41(a)(2), the dismissal order indicated that the manufacturer was entitled to fees and costs; when the consumer refiled the action, the district court abused the court's discretion by dismissing the action because the consumer had not paid fees and costs. The prior voluntary dismissal order indicated only that the manufacturer was entitled to the manufacturer's attorney's fees and costs and that the next court should resolve the fee/cost petition; the consumer was not prohibited from refiling the action under O.C.G.A. § 9-2-61 . Parrish v. Ford Motor Co., F.3d (11th Cir. Oct. 31, 2008)(Unpublished).

Validity of renewal action in issue. - Trial court's partial grant of summary judgment on statute of limitations defense to plaintiff's slander claim was reversed since there remained a genuine issue of material fact as to whether the plaintiff's action was a valid renewal action under O.C.G.A. § 9-2-61 . Elder v. Cardoso, 205 Ga. App. 144 , 421 S.E.2d 753 (1992).

Mistaken information from clerk that no costs due. - Costs which must be paid pursuant to O.C.G.A. § 9-11-41 , as a precondition to the filing of a new suit, do not include costs unknown to the plaintiff after a good faith inquiry since the attorney was mistakenly informed by the clerk of the trial court that no costs were due on a previous action. But any unpaid costs in a previous action which are unknown after a good faith inquiry but discovered after the filing of a new action must be paid within a reasonable time in order to preserve jurisdiction. Daugherty v. Norville Indus., Inc., 174 Ga. App. 89 , 329 S.E.2d 202 (1985).

Action renewed pursuant to subsection (a) of O.C.G.A. § 9-2-61 is an action de novo, and a defendant is not estopped from raising a proper defense (such as insufficiency of service) in a renewal action simply because the defense was not raised in the original action. Adams v. Gluckman, 183 Ga. App. 666 , 359 S.E.2d 710 (1987).

Renewed case in effect de novo. - When a case is renewed, recommenced, or brought over under this section, it is in effect de novo, except that the statute of limitations does not run. Bishop v. Greene, 62 Ga. App. 126 , 8 S.E.2d 448 (1940).

Since the claimant dismissed the lawsuit against the insured and refiled an identical suit under O.C.G.A. § 9-2-61 , the insured's tardy forwarding of the suit papers in the first action was cured by the dismissal and the insurer was not relieved of its obligation to defend the second suit or of its potential liability thereunder. Granite State Ins. Co. v. Nord Bitumi U.S., Inc., 262 Ga. 502 , 422 S.E.2d 191 (1992).

Renewed lawsuit under O.C.G.A. § 9-2-61(a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew, and diligence in perfecting service in a renewal action must be measured from the time of filing the renewed suit. Magsalin v. Chace, 255 Ga. App. 146 , 564 S.E.2d 554 (2002).

Renewal action not established. - Driver did not make the requisite showing in the driver's renewed complaint, nor did the record contain any evidence that the driver's complaint met the test for renewal, and, although both actions were apparently filed in the same court, there was no indication that the driver requested that the trial court take judicial notice of the record in the driver's original case; therefore, the appellate court concluded that the driver did not meet the burden of showing that the trial court erred in concluding that the driver's second action was barred by the statute of limitations. Belcher v. Folsom, 258 Ga. App. 191 , 573 S.E.2d 447 (2002).

Section applied and permitted renewal when affidavit was mistakenly omitted. - When all parties agreed that a patient's expert affidavit was available when the patient's first medical malpractice complaint was filed but was mistakenly omitted, O.C.G.A. § 9-11-9.1 applied and permitted renewal; the trial court erred in granting summary judgment in favor of a doctor and an institute in the patient's malpractice case. Rector v. O'Day, 268 Ga. App. 864 , 603 S.E.2d 337 (2004).

Trial court erred by dismissing a couple's renewed negligence complaint for failing to file an expert affidavit with the couple's original complaint as required by O.C.G.A. § 9-11-9.1(a) because the record failed to contain sufficient findings showing whether any professional negligence was involved with regard to the wife falling from a testing table as it was merely speculative whether the technician had to assess the wife's medical condition in order to decide whether she could get down from a raised table since it could have been that no professional judgment was required. The trial court additionally erred by dismissing the couple's renewed complaint because the defending medical entities waived their objection to the renewal by failing to file a separate motion to dismiss contemporaneously with their answer to the couple's original action. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145 , 682 S.E.2d 165 (2009), aff'd, 287 Ga. 406 , 696 S.E.2d 640 (2010).

Motion for attorney fees cannot be renewed. - Because a defendant timely filed a motion for attorney fees under O.C.G.A. § 9-15-14 but later withdrew it, the trial court erred in ruling that the motion could be renewed under O.C.G.A. § 9-2-61(a) ; as the "renewed motion" was filed more than 45 days after entry of summary judgment, the trial court erred in granting the neighbor attorney fees. Condon v. Vickery, 270 Ga. App. 322 , 606 S.E.2d 336 (2004).

Georgia Prison Litigation Reform Act. - Discretionary application requirement of Georgia Prison Litigation Reform Act, O.C.G.A. § 42-12-8 , was inapplicable to an injured party's renewed personal injury suit because the injured party was not a prisoner when the de novo action was filed. Baskin v. Ga. Dep't of Corr., 272 Ga. App. 355 , 612 S.E.2d 565 (2005).

Executor's renewal action. - In the absence of an explicit order in an executor's renewal action, O.C.G.A. § 9-2-61(a) , requiring the executor to identify the executor's expert witnesses by a date certain, the executor's failure to do so did not warrant the extreme sanction of dismissal under O.C.G.A. § 9-11-41(b) , (c). Porter v. WellStar Health Sys., 299 Ga. App. 481 , 683 S.E.2d 35 (2009), cert. denied, No. S09C2031, 2010 Ga. LEXIS 80 (Ga. 2010).

Untimely service of process in first action not a defense in renewal action. - Because defendants were timely served in a renewal action brought under O.C.G.A. § 9-2-61(a) , the defendants could not assert as a defense the fact that the defendants were served five years after the initial action, which had been dismissed following service of defendants. The equitable doctrine of laches, O.C.G.A. § 9-3-3 , did not apply in a personal injury action because the action was a legal action. Boyd v. Robinson, 299 Ga. App. 795 , 683 S.E.2d 862 (2009), aff'd, 288 Ga. 53 , 701 S.E.2d 165 (2010).

Renewal proper. - Because a health care provider simply raised a patient's failure to comply with O.C.G.A. § 9-11-9.1(a) as a defense in the provider's answer rather than in a contemporaneous motion to dismiss, as required by § 9-11-9.1(c) , the patient was not precluded from renewing a negligence action pursuant to O.C.G.A. § 9-2-61 . Opensided MRI of Atlanta, LLC v. Chandler, 287 Ga. 406 , 696 S.E.2d 640 (2010).

RESEARCH REFERENCES

Am. Jur. 2d. - 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, § 97 et seq. 51 Am. Jur. 2d, Limitation of Actions, §§ 290, 296.

ALR. - Defective pleading as within proviso or saving clause permitted new action after failure of previous action notwithstanding general limitation period has run, 77 A.L.R. 495 .

Period within which new action may be commenced after nonsuit or judgment not on merits, 83 A.L.R. 478 .

What amounts to a nonsuit within contemplation of statute extending time for new action in case of nonsuit, 86 A.L.R. 1048 .

Time for filing petition for removal of action from state to federal court as affected by extension of time for pleading, 108 A.L.R. 966 .

Reinstatement, after expiration of term, of case which has been voluntarily withdrawn, dismissed, or nonsuited, 111 A.L.R. 767 .

Nolle prosequi or discontinuance of prosecution in one court and instituting new prosecution in another court of coordinate jurisdiction, 117 A.L.R. 423 .

Character or kind of action or proceeding within operation of statute which permits new action after expiration of period of limitation, upon failure of previous action commenced within the period, 120 A.L.R. 376 ; 79 A.L.R.2d 1309.

Statutes permitting new action after failure of original action commenced within period of limitations as applied in cases where original action fails for reasons relating to the writ or process or the service thereof, 142 A.L.R. 1184 .

Original notice of lis pendens as effective upon renewal of litigation after dismissal, reversal, or nonsuit, reserving right to begin another proceeding, 164 A.L.R. 515 .

Statute permitting new action, after failure of original action timely commenced, as applicable where original action was filed in another state, 55 A.L.R.2d 1038.

Determination of beginning of period allowed by statute for commencement of new action after failure, otherwise than on the merits, or action timely begun, 79 A.L.R.2d 1270.

Voluntary dismissal or nonsuit as within provision of statute extending time for new action in case of dismissal or failure of original action otherwise than upon the merits, 79 A.L.R.2d 1290.

Time when voluntary nonsuit or dismissal may be taken as of right under statute so authorizing at any time before "trial," "commencement of trial," "trial of the facts," or the like, 1 A.L.R.3d 711.

Statute permitting new action after failure of original action commenced within period of limitation, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043.

Applicability, as affected by change in parties, of statute permitting commencement of new action within specified time after failure of prior action not on merits, 13 A.L.R.3d 848.

Effect of statute permitting new action to be brought within specified period after failure of original action other than on the merits to limit period of limitations, 13 A.L.R.3d 979.

Attorneys at law: delay in prosecution of disciplinary proceeding as defense or mitigating circumstance, 93 A.L.R.3d 1057.

Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: individual drivers, parents, owners or lessors, and passengers, 97 A.L.R.6th 375.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: corporations, municipalities, insurers, and employers, 98 A.L.R.6th 93.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: estates, and other or unspecified parties, 99 A.L.R.6th 1.

Construction and application of two-dismissal rule under federal law, 10 A.L.R. Fed. 3d 4.

9-2-62. Retraxit and dismissal or discontinuance distinguished.

A retraxit differs from a dismissal or discontinuance in that a retraxit is the open, public, and voluntary renunciation by the plaintiff in open court of his action or cause of action. It is positive and conclusive of the plaintiff's right of action. Where a retraxit is entered by the plaintiff and a judgment is entered thereon by the defendant, the plaintiff's right of action shall be forever gone. A dismissal or discontinuance is negative, and the plaintiff may recommence his action on the payment of costs.

(Orig. Code 1863, §§ 3378, 3379; Code 1868, §§ 3397, 3398; Code 1873, §§ 3445, 3446; Code 1882, §§ 3445, 3446; Civil Code 1895, §§ 5042, 5043; Civil Code 1910, §§ 5624, 5625; Code 1933, §§ 3-507, 3-508; Ga. L. 1967, p. 226, § 38.)

Law reviews. - For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act," see 3 Ga. St. B.J. 383 (1967).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Justices of Inferior Court ex rel. Selman v. Selman, 6 Ga. 432 (1849); Rumph v. Truelove, 66 Ga. 480 (1881); Cunningham v. Schley, 68 Ga. 105 (1881); Langston v. Marks, 68 Ga. 435 (1882); City of Atlanta v. Wilson, 70 Ga. 714 (1883); Rountree v. Key, 71 Ga. 214 (1883); Hart v. Hatcher & Brannon, 71 Ga. 717 (1883); Stirk v. Central R.R. & Banking, 79 Ga. 495 , 5 S.E. 105 (1887); Fagan v. McTier, 81 Ga. 73 , 6 S.E. 177 (1888); Seals Armour Co. v. Stocks, 100 Ga. 10 , 30 S.E. 278 (1896); Sweeney v. Malloy, 107 Ga. 80 , 32 S.E. 858 (1899); Wright v. Jett, 120 Ga. 995 , 48 S.E. 345 (1904); Hinton v. Brewer, 129 Ga. 232 , 58 S.E. 708 (1907); Cicero v. Scaife, 129 Ga. 333 , 58 S.E. 850 (1907); White v. Bryant, 136 Ga. 423 , 71 S.E. 677 (1911); Maril v. Boswell, 12 Ga. App. 41 , 76 S.E. 773 (1912); Sewell v. Atkinson, 14 Ga. App. 386 , 80 S.E. 862 (1914); Poplarville Sawmill Co. v. Driver & Co., 17 Ga. App. 674 , 88 S.E. 36 (1916); Council v. Stevens, 19 Ga. App. 250 , 91 S.E. 286 (1917); Brock v. City of Tallapoosa, 19 Ga. App. 793 , 92 S.E. 289 (1917); Stevens v. Seaboard Air-Line Ry., 24 Ga. App. 303 , 100 S.E. 731 (1919); Reynolds v. Reynolds, 153 Ga. 490 , 112 S.E. 470 (1922); Tufts v. Threlkeld, 31 Ga. App. 452 , 121 S.E. 120 (1923); Stinson v. Branan, 166 Ga. 752 , 144 S.E. 324 (1928); May Realty Co. v. Lohman, 176 Ga. 740 , 168 S.E. 772 (1933); Geer v. Hunter, 50 Ga. App. 242 , 177 S.E. 820 (1934); Clark v. Newsome, 180 Ga. 97 , 178 S.E. 386 (1935); Clarke v. Order of United Com. Travelers of Am., 79 F.2d 564 (5th Cir. 1935); Williford v. State, 56 Ga. App. 840 , 194 S.E. 384 (1937); Bishop v. Greene, 62 Ga. App. 126 , 8 S.E.2d 448 (1940); Brinson v. Kramer, 72 Ga. App. 63 , 33 S.E.2d 41 (1945); Peterson v. Lott, 200 Ga. 390 , 37 S.E.2d 358 (1946); Zachry v. State, 81 Ga. App. 637 , 59 S.E.2d 555 (1950); Lanier v. Millsap, 101 Ga. App. 713 , 115 S.E.2d 199 (1960); United States Cas. Co. v. American Oil Co., 104 Ga. App. 209 , 121 S.E.2d 328 (1961); Sosebee v. Steiner, 128 Ga. App. 814 , 198 S.E.2d 325 (1973); Central of Ga. Ry. v. Harbin, 132 Ga. App. 65 , 207 S.E.2d 597 (1974); Couch v. Wallace, 249 Ga. 568 , 292 S.E.2d 405 (1982); Omark Indus., Inc. v. Alewine, 164 Ga. App. 397 , 298 S.E.2d 259 (1982).

Retraxit

Rules in this section governing retraxit are codified from the English common law. Harvey v. Boyd, 24 Ga. App. 561 , 101 S.E. 708 (1919).

Retraxit is act by which plaintiff abandons claim and withdraws the plaintiff's suit. West v. Flynn Realty Co., 53 Ga. App. 594 , 186 S.E. 753 (1936).

Coplaintiff not barred by retraxit entered without consent. - When retraxit is entered by one joint plaintiff without consent of the coplaintiff, the latter may continue to prosecute the claim. Harvey v. Boyd, 24 Ga. App. 561 , 101 S.E. 708 (1919).

Statement of plaintiff's attorney that plaintiff was not seeking rent but was only seeking to recover possession of premises would not amount to retraxit. West v. Flynn Realty Co., 53 Ga. App. 594 , 186 S.E. 753 (1936).

Dismissal of plaintiff's action on condition that defendants pay costs is not a renunciation of plaintiff's cause of action and does not amount to a retraxit. Corbin v. Goepper, 184 Ga. 559 , 192 S.E. 24 (1937).

Dismissal when previous retraxit entered. - When decree of retraxit was rendered more than three years before action on guardian's bond was filed and more than three years after plaintiff attained majority and petition alleged no facts to relieve plaintiff of bar on the ground that the plaintiff was deterred from the plaintiff's action, the court could not do otherwise than dismiss the action. Brinsfield v. Robbins, 183 Ga. 258 , 188 S.E. 7 (1936).

Dismissal or Discontinuance

Intent of section. - Evident intent of this section is to prevent harassing renewal of action which plaintiff has, after calling upon defendant to appear in court and defend it, elected to dismiss for some reason, good or otherwise. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621 , 142 S.E.2d 402 (1965).

Construction of section with O.C.G.A. §§ 9-15-3 and 9-15-11 . - Former Civil Code 1910, §§ 5624 and 5625 (see now O.C.G.A. § 9-2-62 ) must be construed in conjunction with former Civil Code 1910, § 5991 (see O.C.G.A. § 9-15-3 ), prohibiting officers of court from demanding costs in any civil case until judgment, except in cases of nonresident plaintiffs and attorneys, and in conjunction with former Civil Code 1910, § 5992 (see now O.C.G.A. § 9-15-11 ), relating to inclusion of costs in judgment against party dismissing, etc. Dickson v. Hutchinson, 173 Ga. 644 , 161 S.E. 139 (1931).

Under former Civil Code 1895, §§ 5042 and 5043 and Ga. L. 1901, p. 80, § 1 (see now O.C.G.A. §§ 9-2-62 and 9-2-63 ), plaintiff must pay costs or file affidavit showing the plaintiff's inability to do so. Wright v. Jett, 120 Ga. 995 , 48 S.E. 345 (1904); White v. Bryant, 136 Ga. 423 , 71 S.E. 677 (1911); Williams v. Holland, 9 Ga. App. 494 , 71 S.E. 760 (1911); Collins v. Burkhalter, 144 Ga. 695 , 87 S.E. 888 (1916); Morgan v. Hutcheson, 32 Ga. App. 501 , 123 S.E. 904 (1924).

Payment of costs is prerequisite. - It is essential to plaintiff's right to recommence action, after a dismissal, that accrued costs in former action be paid. Gheesling v. Louisville & N.R.R., 38 Ga. App. 485 , 144 S.E. 328 (1928).

When plaintiff voluntarily dismisses an action, the plaintiff may recommence the action on payment of costs. Dickson v. Hutchinson, 173 Ga. 644 , 161 S.E. 139 (1931).

Payment of costs is condition precedent to right to renew original dismissed action. Grier v. Wade Ford, Inc., 135 Ga. App. 821 , 219 S.E.2d 43 (1975); Perry v. Landmark Fin. Corp., 141 Ga. App. 62 , 232 S.E.2d 399 (1977).

Costs paid only when action is dismissed or discontinued by plaintiff's act. - It is only when action has been dismissed or discontinued by an act of the plaintiff that, as a condition precedent to recommencing an action, the costs of the former action must be paid or an affidavit in forma pauperis in lieu thereof be made. Dowe v. Debus Mfg. Co., 52 Ga. App. 713 , 184 S.E. 362 (1936), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).

Cost requirement inapplicable when first action dismissed for want of prosecution. - Requirement under this section that the plaintiff pay costs upon recommencement applies to voluntary dismissal by the plaintiff, not dismissal for want of prosecution. City of Chamblee v. Village of N. Atlanta, 217 Ga. 517 , 123 S.E.2d 663 (1962).

Payment of costs in former action dismissed for want of prosecution is not a prerequisite to filing another action between the same parties on the same cause of action. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621 , 142 S.E.2d 402 (1965) (arguing for adoption by Supreme Court of contrary rule).

Prepayment of costs was not condition of right to proceed when party was not served in former action. Hackney v. Asbury & Co., 124 Ga. 678 , 52 S.E. 886 (1906).

Before it is required, as condition precedent to filing of action, that costs which accrued in former action be paid or affidavit of indigence be made, former action must have been one pending between the parties; and when, in former action, service of the defendant was not perfected, and action was dismissed on this ground, former action was never pending. Dowe v. Debus Mfg. Co., 52 Ga. App. 713 , 184 S.E. 362 (1936); Register v. Sanders, 103 Ga. App. 368 , 119 S.E.2d 294 (1961).

Mere filing with the clerk without issuance of process is not institution of action, and payment of costs is not condition precedent to filing at the next term of court the identical cause of action. Register v. Sanders, 103 Ga. App. 368 , 119 S.E.2d 294 (1961).

Requirement that costs be paid is in nature of penalty. - Condition imposed on the plaintiff as to payment of costs before renewing action is in the nature of a penalty for not being ready and willing to press original action to a hearing on its merits. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621 , 142 S.E.2d 402 (1965).

Full payment of costs is required and no mere arrangement whereby some collecting officer gives a receipt without payment is sufficient so far as it relates to costs due other officers or private persons. McLaurin v. Fields, 4 Ga. App. 688 , 62 S.E. 114 (1908); Williams v. Holland, 9 Ga. App. 494 , 71 S.E. 760 (1911); German Alliance Ins. Co. v. Hawes, 18 Ga. App. 338 , 89 S.E. 527 (1916).

Charging costs to counsel is insufficient. Board of Educ. v. Kelley, 126 Ga. 479 , 55 S.E. 238 (1906).

This section has no application when second action is substantially different from the one that has been brought and dismissed. Ford v. Clark, 75 Ga. 612 (1885); White v. Moss & Childs, 92 Ga. 244 , 18 S.E. 13 (1893); Doody Co. v. Jeffcoat, 127 Ga. 301 , 56 S.E. 421 (1907); Southern Ry. v. Rowe, 2 Ga. App. 557 , 59 S.E. 462 (1907); Bunting v. Hutchinson, 5 Ga. App. 194 , 63 S.E. 49 (1908).

Action against trustee formerly sued as individual. - Prepayment of costs was not condition of right to proceed in action against trustee who was formerly sued as individual. Moore v. Bower, 6 Ga. App. 450 , 65 S.E. 328 (1909).

Action against partnership after action against partner. - When partnership was sued after action against partner, prepayment of costs was not condition of right to proceed. Doody Co. v. Jeffcoat, 127 Ga. 301 , 56 S.E. 421 (1907).

This section does not apply if one settles action instituted against that person. Graham v. Massengale Adv. Agency, 4 Ga. App. 826 , 62 S.E. 567 (1908).

Section not applicable to federal cases. - This section, imposing penalty upon those who dismiss cases, is not applicable to cases in federal court. McIver v. Florida, C. & P.R.R., 110 Ga. 223 , 36 S.E. 775 , 65 L.R.A. 437 (1900); Southern Ry. v. Rowe, 2 Ga. App. 557 , 59 S.E. 462 (1907).

Proof of dismissal. - Unchallenged entry of dismissal, as made on docket by trial judge, must be taken as conclusive proof of dismissal. Smith v. Merchants & Farmers Bank, 22 Ga. App. 505 , 96 S.E. 342 (1918).

Contention that verdict and judgment for divorce were void and should be set aside for reason that plaintiff had instituted divorce action without paying court costs accrued in action for divorce which the plaintiff had previously filed and dismissed came too late when made for the first time in a petition to set aside the verdict and judgment. Crenshaw v. Crenshaw, 198 Ga. 536 , 32 S.E.2d 177 (1944).

RESEARCH REFERENCES

Am. Jur. 2d. - 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, §§ 4, 58, 90.

C.J.S. - 27 C.J.S., Dismissal and Nonsuit, §§ 2, 3, 6.

ALR. - Reinstatement, after expiration of term, of case which has been voluntarily withdrawn, dismissed, or nonsuited, 111 A.L.R. 767 .

Statute permitting new action after failure of original action commenced within period of limitation, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043.

9-2-63. Affidavit of indigence for renewal of action.

When any action is dismissed or discontinued and the plaintiff desires to recommence his action, if he will make and file with his complaint, summons, or other proceedings an affidavit in writing stating that he is advised and believes that he has good cause for recommencing his action and that because of his indigence he is unable to pay the costs that have accrued in the case, he shall have the right to renew the action without payment of the cost as aforesaid.

(Ga. L. 1901, p. 80, § 1; Civil Code 1910, § 5626; Code 1933, § 3-509.)

Cross references. - Constitutional guarantee of access to courts, Ga. Const. 1983, Art. I, Sec. I, Para. XII.

Filing of affidavit of indigence generally, § 9-15-2 .

JUDICIAL DECISIONS

It is condition precedent to renewal of action after voluntary dismissal that plaintiff pay costs or file affidavit of indigence before or at time of renewing the action. Kraft v. Forest Park Realty & Ins. Co., 111 Ga. App. 621 , 142 S.E.2d 402 (1965).

Payment of costs prerequisite only when first action is dismissed by act of plaintiff. - It is only when action has been dismissed or discontinued and dismissal or discontinuance is by act of plaintiff that, as condition precedent to recommencing action, costs of former action must be paid or an affidavit in forma pauperis in lieu thereof be made. Dowe v. Debus Mfg. Co., 52 Ga. App. 713 , 184 S.E. 362 (1936), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).

Service must have been had in first action. - Before it is required as condition precedent to filing of action that costs which accrued in former action between same parties for same cause be paid or an affidavit in forma pauperis be made, former action must have been one pending between the parties; and when, in former action, service of the defendant was not perfected, and an action was dismissed on this ground, the former action was never pending. Dowe v. Debus Mfg. Co., 52 Ga. App. 713 , 184 S.E. 362 (1936), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019); Register v. Sanders, 103 Ga. App. 368 , 119 S.E.2d 294 (1961).

Mere filing with clerk, without issuance of process, is not institution of an action, and payment of costs is not condition precedent to filing at next term of court on identical cause of action. Register v. Sanders, 103 Ga. App. 368 , 119 S.E.2d 294 (1961).

No further affidavit of indigence when affidavit filed in prior action. - Provision in O.C.G.A. § 9-15-2(a) that an affidavit of indigence relieves a party of "any deposit, fee, or other cost" requires that, when a plaintiff files such an affidavit upon bringing an action, takes a voluntary dismissal, then seeks to renew the action, no payment of accrued costs and no further affidavit of indigence are required for the filing of the renewal action. McKenzie v. Seaboard Sys. R.R., 173 Ga. App. 402 , 326 S.E.2d 502 (1985).

Two actions must be identical as to parties and causes of action before this section applies. May Realty Co. v. Lohman, 176 Ga. 740 , 168 S.E. 772 (1933).

Affidavit under this section must be filed at time of commencement of second action. Johnson v. Central of Ga. Ry., 119 Ga. 185 , 45 S.E. 988 (1903).

Affidavit in this section is considered part of petition with which it is filed and must be filed with petition at time of its filing. Southern Grocery Stores, Inc. v. Kelly, 52 Ga. App. 551 , 183 S.E. 924 (1936).

Timing of filing of petition and affidavit. - When affidavit and petition appear separately and are not physically attached to each other, but are at the same time filed with the court clerk, filing of the affidavit is in compliance with this section. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529 , 173 S.E. 196 (1934).

Affidavit need not be attached to the petition in order to be considered filed therewith. North Am. Accident Ins. Co. v. Scarborough, 49 Ga. App. 833 , 176 S.E. 671 (1934).

Amendment of venue statement in affidavit. - When state and county in heading of venue of affidavit made under this section were by mistake incorrectly stated, and it appeared from the jurat that the affidavit was actually signed and sworn to in the proper jurisdiction, the judge did not err in allowing the affidavit to be amended. Southern Grocery Stores, Inc. v. Kelly, 52 Ga. App. 551 , 183 S.E. 924 (1936).

Affidavit by next friend. - Affidavit in forma pauperis in renewed action brought by minor through the minor's next friend should be made and filed by the next friend. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529 , 173 S.E. 196 (1934).

This section has no application when former action was pending in federal court. Powell v. Fidelity & Deposit Co., 48 Ga. App. 529 , 173 S.E. 196 (1934).

Action against partnership composed of two partners was not subject to abatement when former action on same account had been brought by the plaintiff against one partner as an individual, which action had been dismissed, and the plaintiff had failed to pay costs of the action or file an affidavit of indigence before institution of an action against the partnership. May Realty Co. v. Lohman, 176 Ga. 740 , 168 S.E. 772 (1933).

Cited in Wright v. Jett, 120 Ga. 995 , 48 S.E. 345 (1904); Seaboard Air-Line Ry. v. Randolph, 126 Ga. 238 , 55 S.E. 47 (1906); Holmes v. Huguley, 136 Ga. 758 , 72 S.E. 38 (1911); City of Manchester v. Beavers, 38 Ga. App. 337 , 144 S.E. 11 (1928); Young v. Western & A.R.R., 43 Ga. App. 257 , 158 S.E. 464 (1931); Dickson v. Hutchinson, 173 Ga. 644 , 161 S.E. 139 (1931); Underwood Elliott Fisher Co. v. Evans, 53 Ga. App. 673 , 186 S.E. 858 (1936); Quinn v. O'Neal, 58 Ga. App. 628 , 199 S.E. 359 (1938); Brinson v. Kramer, 72 Ga. App. 63 , 33 S.E.2d 41 (1945); Zachry v. State, 81 Ga. App. 637 , 59 S.E.2d 555 (1950); Davis v. Holt, 108 Ga. App. 280 , 132 S.E.2d 796 (1963); Sosebee v. Steiner, 128 Ga. App. 814 , 198 S.E.2d 325 (1973); Bell v. Figueredo, 190 Ga. App. 163 , 378 S.E.2d 475 (1989).

RESEARCH REFERENCES

Am. Jur. 2d. - 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, § 97 et seq.

C.J.S. - 20 C.J.S., Costs, §§ 146, 147, 426. 27 C.J.S., Dismissal and Nonsuit, §§ 13, 62, 89.

ALR. - Reinstatement, after expiration of term, of case which has been voluntarily withdrawn, dismissed, or nonsuited, 111 A.L.R. 767 .

Nolle prosequi or discontinuance of prosecution in one court and instituting new prosecution in another court of coordinate jurisdiction, 117 A.L.R. 423 .

Right to sue or appeal in forma pauperis as dependent on showing of financial disability of attorney or other nonparty or nonapplicant, 11 A.L.R.2d 607.

What costs or fees are contemplated by statute authorizing proceeding in forma pauperis, 98 A.L.R.2d 292.

CHAPTER 3 LIMITATIONS OF ACTIONS

General Provisions.

Specific Periods of Limitation.

Limitations on Recovery for

Deficiencies Connected with

Improvements to Realty

and Resulting Injuries.

Limitations for Malpractice Actions.

Tolling of Limitations.

Revival.

Cross references. - Limitation of action which is renewed after discontinuance or dismissal, § 9-2-61 .

Laches, § 23-1-25 .

Time limitation on enforcement of right to workers' compensation, § 34-9-82 .

Time limitation on bringing of action against rural telephone cooperatives, § 46-5-97 .

Time limitation on bringing of actions by common carriers for recovery of charges, § 46-9-5 .

Time limitation on bringing of action for refund of taxes or fees erroneously or illegally assessed and collected, § 48-2-35 .

ARTICLE 1 GENERAL PROVISIONS

JUDICIAL DECISIONS

Statutes of limitations are intended to embrace all causes of action not specially excepted from operations and should not be so construed as to defeat that object. Trust Co. Bank v. Union Circulation Co., 241 Ga. 343 , 245 S.E.2d 297 (1978).

Courts cannot engraft on statutes of limitations exceptions not contained therein, however inequitable enforcement of statute, without such exceptions, may be. Harrison v. Holsenbeck, 208 Ga. 410 , 67 S.E.2d 311 (1951).

Except as provided therein, statutes of limitations should not be evaded, as they are considered beneficial and resting in principles of sound public policy. Harrison v. Holsenbeck, 208 Ga. 410 , 67 S.E.2d 311 (1951).

Statute of limitations begins to run on any given claim on the date claim accrues, in other words, on the date that action on the claim can first be brought. Hoffman v. Insurance Co. of N. America, 241 Ga. 328 , 245 S.E.2d 287 (1978).

Period within which action may be brought is measured from date upon which the plaintiff could have successfully maintained the action. Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804 , 273 S.E.2d 16 (1980).

Bar of statute of limitations is a personal privilege and is not available to the defendant unless specially asserted. Burch v. Wofford-Terrell Co., 52 Ga. App. 685 , 184 S.E. 419 (1936).

Use of state limitations when foreign substantive law controls. - In this state, statutes of limitations are remedial and procedural, rather than substantive; hence, courts in this state apply state statutes of limitations even when substantive law of another jurisdiction controls. Cash v. Armco Steel Corp., 462 F. Supp. 272 (N.D. Ga. 1978).

Application of state limitations to federal actions. - When Congress creates a federal right without prescribing a period for enforcement, the applicable period of limitations is that which the state itself would enforce had the action seeking similar relief been brought in a court of that state. United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973).

Violation of federal antitrust laws. - In cases involving violation of antitrust statutes, Georgia statutes of limitations apply; federal authorities, however, determine the question as to when cause of action accrued. Service Stages, Inc. v. Greyhound Corp., 170 F. Supp. 482 (N.D. Ga. 1959), aff'd, 268 F.2d 739 (5th Cir. 1959).

Right of purchaser to plead statute against mortgagee. - One who purchases land covered by a mortgage acquires such a privity of relationship to the debtor as to entitle the purchaser to plead statute of limitations against mortgagee, so far as the subjection of the land itself is sought, whether the mortgagor pleads it or omits to plead it. Krauss v. National Bank, 184 Ga. 456 , 192 S.E. 12 (1937).

RESEARCH REFERENCES

ALR. - Depreciation in market value of land as affecting the general rule that cause of action arises when injury is inflicted, and not when cause is created, 3 A.L.R. 682 .

Statutory or contractual limitation where presumption of death of the insured from seven years' absence is relied upon, 34 A.L.R. 91 ; 61 A.L.R. 686 ; 119 A.L.R. 1308 .

"De minimis non curat lex," 44 A.L.R. 168 .

Reasonableness of period allowed for existing causes of action by statute reducing period of limitation, 49 A.L.R. 1263 ; 120 A.L.R. 758 .

Right of foreign corporation to plead statute of limitations, 59 A.L.R. 1336 ; 122 A.L.R. 1194 .

State statute of limitations as affecting action or proceeding by federal government or its officials, 61 A.L.R. 412 .

Construction of statutes of limitation as regards their retrospective application to causes of action already barred, 67 A.L.R. 297 .

Construction, application, and effect of statute of forum which admits bar of statute of limitation of other state, 75 A.L.R. 203 ; 149 A.L.R. 122 .

When statute of limitations commences to run against action for breach of warranty on sale of chattels, 75 A.L.R. 1086 .

Applicability of statutes of limitation to defenses, 78 A.L.R. 1074 .

Anticipatory breach of executory contract as starting running of statute of limitations, 94 A.L.R. 455 .

Applicability of statute of nonclaim or limitation statute as between surviving partner and estate of deceased partner, 96 A.L.R. 441 ; 157 A.L.R. 1114 .

Bar of statute of limitations against debt secured by pledge as affecting rights and remedies in respect of the subject of the pledge, 103 A.L.R. 430 ; 137 A.L.R. 928 .

Right of subrogation in respect of encumbrances paid by third person under mistake or in order to protect his interest in property as affected by statute of limitations or laches, 103 A.L.R. 1182 .

Time limitation as to filing of claims against insolvent as affected by excuses, and the nature of such excuses, 109 A.L.R. 1404 .

Liability of automobile liability or indemnity insurer as affected by statute of limitations against action based on insured's tort, 111 A.L.R. 1069 .

Acceleration provision in respect of special assessments as affecting running of statute of limitations, 113 A.L.R. 1168 .

Amendment of complaint or declaration by setting up death statute after expiration of period to which action is limited by the death statute or by the statute of limitations, 134 A.L.R. 779 .

Running of statute of limitations as affected by uncertainty as to existence of a cause of action because of delay in settling or determining a matter of general or governmental concern upon which it depends, 135 A.L.R. 1339 .

When statute of limitations commences to run against action by principal to recover money or other property from agent, 141 A.L.R. 361 .

Amendment of pleading after limitation period changing from allegation of negligence to allegation of fraud, or vice versa, as stating a new cause of action, 141 A.L.R. 1363 .

Employer's breach of agreement regarding discharge or restoration after layoff of employee not employed for a fixed term, as creating a single cause of action, or repeated causes of action, as regards statute of limitation or the right to bring successive actions, 142 A.L.R. 797 .

Validity and construction of war enactment in United States suspending operation of statute of limitations, 143 A.L.R. 1519 .

Limitation applicable to cause of action created by statute of another state which allows a longer period than the statute of the forum, 146 A.L.R. 1356 .

Right of action to recover from owner taxes which plaintiff, by mistake, paid upon the former's property, as subject to statutes of limitation, 147 A.L.R. 457 .

Applicability to limitation prescribed by policy of insurance, or by special statutory provision in relation to insurance, of provisions of statute of limitations extending time or fixing time when action deemed commenced, 149 A.L.R. 483 .

Public records as constructive notice as regards action predicated upon fraudulent misrepresentation or concealment, so as to start the running of the statute of limitations against the bringing of such action, 152 A.L.R. 461 .

Mandamus as subject to statute of limitations, 155 A.L.R. 1144 .

Statute of limitations or presumption of payment from lapse of time as ground for affirmative relief from debt or lien, 164 A.L.R. 1387 .

Amendment after limitation period of allegations of negligence as stating new cause of action, 171 A.L.R. 1087 .

Validity of contractual waiver of statute of limitations, 1 A.L.R.2d 1445.

Limitation period as affected by requirement of notice or presentation of claim against governmental body, 3 A.L.R.2d 711.

Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249.

Reviving, renewing, or extending judgment by order entered after expiration of statutory limitation period on motion made or proceeding commenced within such period, 52 A.L.R.2d 672.

Construction, application, and effect, with reference to statutory causes of action, of statute of forum which admits bar of statute of limitations of other state, 67 A.L.R.2d 216.

Right of creditor to set up statute of limitations against other creditors of his debtor, 71 A.L.R.2d 1049.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

General appearance as avoiding otherwise effective bar of statute of limitations, 82 A.L.R.2d 1200.

Federal court's adoption of state period of limitation, in action to enforce federally created right, as including related or subsidiary state laws or rules as to limitations, 90 A.L.R.2d 265.

Extraterritorial operation of limitation applicable to statutory cause of action, other than by reason of "borrowing statute,", 95 A.L.R.2d 1162.

Validity of contractual time period, shorter than statute of limitations, for bringing action, 6 A.L.R.3d 1197.

Statute of limitations: effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued, 28 A.L.R.3d 1141.

Fiduciary or confidential relationship as affecting estoppel to plead statute of limitations, 45 A.L.R.3d 630.

Delay caused by other litigation as estopping reliance on statute of limitations, 45 A.L.R.3d 703.

Validity of contractual provision establishing period of limitations longer than that provided by state statute of limitations, 84 A.L.R.3d 1172.

Statute of limitations as bar to arbitration under agreement, 94 A.L.R.3d 533.

Statutes of limitation: actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability, 12 A.L.R.4th 866.

When statute of limitations commences to run on automobile no-fault insurance personal injury claim, 36 A.L.R.4th 357.

What constitutes rejection of claim against estate to commence running of statute of limitations applicable to rejected claims, 36 A.L.R.4th 684.

Which statute of limitations applies to efforts to compel arbitration of a dispute, 77 A.L.R.4th 1071.

Time when cause of action accrues for civil action under state antitrust, monopoly, or restraint of trade statutes, 90 A.L.R.4th 1102.

What statute of limitations applies to action to compel arbitration pursuant to § 301 of Labor Management Relations Act (29 USCS § 185), 96 A.L.R. Fed. 378.

9-3-1. Limitations against the state.

Except as otherwise provided by law, the state shall be barred from bringing an action if, under the same circumstances, a private person would be barred.

(Ga. L. 1855-56, p. 233, § 38; Code 1873, § 2925a; Code 1882, § 2925a; Civil Code 1895, § 3777; Civil Code 1910, § 4371; Code 1933, § 3-715.)

Law reviews. - For article, "Statutes of Limitations: Counterproductive Complexities," see 37 Mercer L. Rev. 1 (1985).

JUDICIAL DECISIONS

This section changed common-law rule enunciated in Brinsfield v. Carter, 2 Ga. 143 (1847), and must be strictly construed. Georgia R.R. & Banking v. Wright, 124 Ga. 496 , 53 S.E. 251 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Effect of section on legislative powers. - Legislative powers, including granting of a license by a municipality, cannot be abridged by this section. City Council v. Burum & Co., 93 Ga. 68 , 19 S.E. 820 , 26 L.R.A. 340 (1893).

Prescription does not run against state. Kirschner v. Western & A.R.R., 67 Ga. 760 (1881); Dean v. Feely, 69 Ga. 804 (1883).

This section applies to counties. MacNeill v. McElroy, 193 Ga. 55 , 17 S.E.2d 169 (1941).

Action to recover money illegally drawn from treasury. - Former Civil Code 1910, § 4371 (see now O.C.G.A. § 9-3-1 ) rendered former Civil Code 1910, § 4362 (see now O.C.G.A. § 9-3-25 ) applicable to action by county to recover money illegally drawn from the treasury. Swords v. Walker, 141 Ga. 450 , 81 S.E. 235 (1914).

In action brought by county to recover fees paid to probate court judge by mutual mistake, this section applies. McAlpin v. Chatham County, 26 Ga. App. 695 , 107 S.E. 74 (1921).

Payday lending litigation governed by statute of limitations. - Supreme Court of Georgia is not persuaded that the Georgia legislature intended the period of limitation for bringing an enforcement action pursuant to the Payday Lending Act, O.C.G.A. § 16-17-1 et seq., to be governed by the one-year limitation period for forfeiture actions pursuant to the usury laws; instead, the Court concludes the remedies set forth in the Payday Lending Act are governed by the 20-year statute of limitation set forth in O.C.G.A. § 9-3-1 . W. Sky Fin., LLC v. State of Ga. ex rel. Olens, 300 Ga. 340 , 793 S.E.2d 357 (2016).

Cited in Wooten v. State ex rel. Bagby, 118 Ga. App. 366 , 163 S.E.2d 870 (1968).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Limitation of Actions, § 85.

C.J.S. - 54 C.J.S., Limitations of Actions, §§ 31, 55.

ALR. - Statute limiting duration of lien, or life, of judgment, or revival thereof, as applicable to judgment in favor of state or political units thereof, 118 A.L.R. 929 .

Liquidation or other proceeding by government against bank or other corporation, as suspending statute of limitations as regards choses in action belonging to corporation, or stockholder's superadded liability, 122 A.L.R. 945 .

When statute of limitation commences to run against action to recover tax, 131 A.L.R. 822 .

Running of limitation as to action by public body against officer or employee as deferred until defendant ceases to be officer or employee, or until the end of his term of office or employment, 137 A.L.R. 674 .

Limitation applicable to action for consequential damage as result of taking or damaging of property for public use, 139 A.L.R. 1288 .

Limitation of time for collection or enforcement of succession, estate, or inheritance tax, 139 A.L.R. 1397 .

Limitation statute applicable to action on bonds of public body or on obligation to collect revenues for their payment, 38 A.L.R.2d 930.

9-3-2. Limitations against municipalities.

Any claim or demand held by any municipality not in the nature of a special contract or not reduced to execution shall be barred by the general statutes of limitation of force, and all executions issued by any municipality shall be subject to the same laws relating to the statutes of limitation governing other executions.

(Ga. L. 1899, p. 60, § 1; Civil Code 1910, § 4372; Code 1933, § 3-716.)

JUDICIAL DECISIONS

Cited in Herring v. Citizens' Bank, 45 Ga. App. 646 , 165 S.E. 838 (1932); Webb v. City of Atlanta, 186 Ga. 430 , 198 S.E. 50 (1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions and Enforcement of Judgments, §§ 73, 74, 171, 414, 589. 51 Am. Jur. 2d, Limitation of Actions, § 86.

C.J.S. - 54 C.J.S., Limitations of Actions, § 30 et seq.

ALR. - Validity of contract exempting municipality from liability for negligence, 41 A.L.R. 1358 .

Liability of municipality for injury to lateral support in grading street, 44 A.L.R. 1494 .

When statute of limitations begins to run against warrant of municipal or quasi municipal corporation, 56 A.L.R. 830 .

Action by municipality to enforce lien for special assessment as within statute of limitations not specifically covering it, 103 A.L.R. 885 .

Statute of limitations as applicable to action by municipality or other political subdivision in absence of specific provision in that regard, 113 A.L.R. 376 .

Liquidation or other proceeding by government against bank or other corporation, as suspending statute of limitations as regards choses in action belonging to corporation, or stockholder's superadded liability, 122 A.L.R. 945 .

When statute of limitations commences to run as to action against municipality for damages to riparian premises by pollution of stream by discharge of sewage, 122 A.L.R. 1509 .

Applicability of statute of limitations to action to enforce special assessments as affected by question whether imposition or enforcement of the assessment is an exercise of a governmental function, 136 A.L.R. 572 .

Limitation applicable to action for consequential damage as result of taking or damaging of property for public use, 139 A.L.R. 1288 .

Statutory provision that statute of limitation shall not apply to action in name of municipality or other public corporation, as applicable to actions involving proprietary as distinguished from governmental functions, 162 A.L.R. 261 .

Waiver of, or estoppel to rely upon, contractual limitation of time for bringing action against municipality or other political subdivision, 81 A.L.R.2d 1039.

9-3-3. Applicability of limitation statutes; equitable bar.

Unless otherwise provided by law, limitation statutes shall apply equally to all courts. In addition, courts of equity may interpose an equitable bar whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights.

(Ga. L. 1855-56, p. 233, §§ 28, 39; Code 1863, § 2865; Code 1868, § 2873; Code 1873, § 2924; Code 1882, § 2924; Civil Code 1895, § 3775; Civil Code 1910, § 4369; Code 1933, § 3-712.)

Cross references. - Laches, § 23-1-25 .

Law reviews. - For article discussing application of the principle that he who would have equity must do equity to taxpayer's suits, see 7 Ga. St. B.J. 305 (1971).

JUDICIAL DECISIONS

Former Civil Code 1895, § 3775 (see now O.C.G.A. § 9-3-3 ) must be construed with former Civil Code 1895, § 3939 (see now O.C.G.A. § 23-1-25 ) which permitted the defendant to defeat assertions of purely equitable rights by laches, even though no legal limitation bars right. Moore v. Moore, 103 Ga. 517 , 30 S.E. 535 (1898).

Provisions of this section are not available to complainant. Steele v. City of Waycross, 190 Ga. 816 , 10 S.E.2d 867 (1940).

Principle that stale demand will not be enforced is available to the defendant only, and cannot be employed under this section by complainant in equitable proceeding to enjoin enforcement of purely legal right. Georgia R.R. & Banking v. Wright, 124 Ga. 596 , 53 S.E. 251 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907); Steele v. City of Waycross, 190 Ga. 816 , 10 S.E.2d 867 (1940).

Equitable doctrine of laches. - Equitable doctrine as to stale demands has no application when action is a legal one and period fixed by statute of limitations for assertion of claim has not expired. Louther v. Tift, 20 Ga. App. 309 , 93 S.E. 70 (1917).

Equitable doctrine of laches is not applicable to actions at law. Fletcher v. Gillespie, 201 Ga. 377 , 40 S.E.2d 45 (1946); Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5 , 169 S.E.2d 349 (1969).

Doctrine of laches is an equitable one and has no relevancy to an action when rights to be enforced rest upon legal grounds, and the statute of limitation has not run. Cosby v. A.M. Smyre Mfg. Co., 158 Ga. App. 587 , 281 S.E.2d 332 (1981).

Trial court did not abuse the court's discretion in entering an interlocutory injunction to preserve the status quo pending adjudication of the merits of the creditor's action against the debtors alleging breach of contract and fraudulent transfers in violation of the Georgia Uniform Fraudulent Transfers Act, O.C.G.A. § 18-2-70 et seq., because the debtors presented no evidence of harm from the creditor's delay in amending its complaint to seek an interlocutory injunction, and the delay resulted primarily from the debtors' concealment of their actions and obstruction of the creditor's efforts to discover the details. Vague assertions of harm supported by no citation to evidence in the record are insufficient to sustain a defense of laches, and there is a balance between a plaintiff's knowing that a cause of action exists and that interim injunctive relief may be needed and sitting on its rights to the prejudice of the defendant. SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1 , 709 S.E.2d 267 (2011).

Laches is not a remedy for delay during litigation, but is an affirmative defense asserting an inequitable delay in instituting a proceeding. Stuckey v. Storms, 265 Ga. 491 , 458 S.E.2d 344 (1995); Head v. CSX Transp., Inc., 227 Ga. App. 818 , 490 S.E.2d 497 (1997).

Laches and statute of limitations distinguished. - Defense of "laches" is different from defense of statute of limitations as in order to bar remedy because of laches there must appear, in addition to mere lapse of time, some circumstances from which the defendant or other person may be prejudiced, or there must be such lapse of time that it may be reasonably supposed that such prejudice will occur if remedy is allowed; whereas in case of statute of limitations, mere lapse of time will constitute a bar. Prudential Ins. Co. v. Sailors, 69 Ga. App. 628 , 26 S.E.2d 557 (1943).

Statute of limitation signifies fixed period within which action may be brought to preserve a right, while laches signifies delay independent of statute. Prudential Ins. Co. v. Sailors, 69 Ga. App. 628 , 26 S.E.2d 557 (1943).

Laches is not, like limitations, mere matter of time, but principally question of inequity of permitting claim to be enforced, founded on some intermediate change in conditions. Manry v. Manry, 196 Ga. 365 , 26 S.E.2d 706 (1943); Cooper v. Aycock, 199 Ga. 658 , 34 S.E.2d 895 (1945); Georgian Villa, Inc. v. City Nat'l Bank, 10 Bankr. 79 (Bankr. N.D. Ga. 1981).

Laches did not bar claims that were not barred by statute of limitations. - Trial court erred in finding that all of a a state court judge's claims to recover compensation under state law, O.C.G.A. § 15-7-22 , a local law, 2006 Ga. Laws 206, and a county ordinance, were barred by laches; the judge's claims were subject to the two-year limitations period in O.C.G.A. § 9-3-22 , meaning the judge could pursue claims on or after October 6, 2015; however, the judge was not entitled to mandamus because the judge had received all the compensation to which the judge was entitled. Cowen v. Clayton County, 306 Ga. 698 , 832 S.E.2d 819 (2019).

Applicability of doctrine of laches depends on facts of each particular case. Georgian Villa, Inc. v. City Nat'l Bank, 10 Bankr. 79 (Bankr. N.D. Ga. 1981).

Doctrine of laches refers to neglect, for unreasonable and unexplained length of time, to do that which by exercise of due diligence could and should have been done earlier if at all. Prudential Ins. Co. v. Sailors, 69 Ga. App. 628 , 26 S.E.2d 557 (1943).

Laches may be applied when it would be inequitable to enforce rights. - Doctrine of laches not only forbids relief to one whose long delay renders ascertainment of truth difficult, but also authorizes courts of equity to interpose equitable bar whenever, from lapse of time and laches of complainant, it would be inequitable to allow party to enforce legal rights. Goodwin v. First Baptist Church, 225 Ga. 448 , 169 S.E.2d 334 (1969).

Laches did not bar enforcement of restrictive covenants. - Purchaser of a 10-acre lot in a subdivision was bound by restrictive covenants governing the cutting of trees and dividing of lots in the subdivision; the subdivision owners were not barred by laches from enforcing the covenants after trees were cut and fences erected because there was no evidence as to when the owners discovered the violations of the covenants. Gilbert v. Canterbury Farms, LLC, 346 Ga. App. 804 , 815 S.E.2d 303 (2018).

Under this section, doctrine of stale demand is purely equitable and only arises where from lapse of time and laches of plaintiff it would be inequitable to allow the plaintiff to enforce plaintiff's legal rights. Ellis v. Smith & Bussey, 112 Ga. 480 , 37 S.E. 739 (1900).

Equity will not aid in enforcement of stale demands. Cannon v. Fulton Nat'l Bank, 206 Ga. 609 , 57 S.E.2d 917 (1950); Welch v. Welch, 215 Ga. 198 , 109 S.E.2d 757 (1959).

Equity gives no relief to one whose long delay renders ascertainment of truth difficult, even though no legal limitation bars the right. Persons v. Dallas, 178 Ga. 778 , 174 S.E. 699 (1934); Stephens v. Walker, 193 Ga. 330 , 18 S.E.2d 537 (1942).

There is no absolute rule as to what constitutes laches or staleness of demand, and no one decision constitutes a precedent in strict sense; each case is to be determined according to its own particular circumstances. Manry v. Manry, 196 Ga. 365 , 26 S.E.2d 706 (1943).

Criteria for determining laches. - In determining whether there has been laches, there are various factors to be considered, including: duration of delay in asserting claim; sufficiency of excuse offered in extenuation of delay; whether plaintiff acquiesced in assertion or operation of corresponding adverse claim; character of evidence by which plaintiff's right is sought to be established; whether during delay evidence has been lost or become obscured or conditions have so changed as to render enforcement of right inequitable; whether third persons have acquired intervening rights; nature of right asserted and relief asked; nature of duty or obligation sought to be enforced, and whether plaintiff or defendant was in possession of property at issue during delay. Cooper v. Aycock, 199 Ga. 658 , 34 S.E.2d 895 (1945).

In determining whether there has been laches, various factors are to be considered, including: duration of delay in asserting claim; sufficiency of excuse offered in extenuation thereof; whether during delay evidence has been lost or become obscure; whether the plaintiff or the defendant was in possession of property at issue during the delay; whether the party charged with laches had an opportunity to have acted sooner, and whether the party charged with laches acted at the first possible opportunity. Welch v. Welch, 215 Ga. 198 , 109 S.E.2d 757 (1959); Ehrhart v. Brooks, 231 Ga. 272 , 201 S.E.2d 464 (1973).

When from lapse of time and other circumstances it would be inequitable to grant relief to a party, the doctrine of laches will be applied. Georgian Villa, Inc. v. City Nat'l Bank, 10 Bankr. 79 (Bankr. N.D. Ga. 1981).

For laches to apply, delay must have worked injury, prejudice, or disadvantage to the defendant or others adversely interested; or the plaintiff must have abandoned or waived the plaintiff's right, acquiesced in assertion or operation of adverse right, or lost the plaintiff's right by estoppel; or sufficient time must have elapsed to create or justify presumption against existence or validity of the plaintiff's right, or presumption that if the plaintiff was ever possessed of a right, it has been abandoned, waived, or satisfied, or presumption that in consequence of delay adverse party would be inequitably prejudiced by enforcement of right asserted. Grant v. Fourth Nat'l Bank, 229 Ga. 855 , 194 S.E.2d 913 (1972).

To constitute the defense of laches, the delay must have been such as practically to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy. Georgian Villa, Inc. v. City Nat'l Bank, 10 Bankr. 79 (Bankr. N.D. Ga. 1981).

If both parties are equally to blame for delay, neither should be allowed to invoke the rule of laches in order to gain advantage over an adversary. City of McRae v. Folsom, 191 Ga. 272 , 11 S.E.2d 900 (1940).

Delay which is not beyond statute of limitation cannot be held laches sufficient to bar the action. Cosby v. A.M. Smyre Mfg. Co., 158 Ga. App. 587 , 281 S.E.2d 332 (1981).

Delay is excusable when induced by adverse party; a person cannot take advantage of delay which that person personally caused or to which the person contributed. City of McRae v. Folsom, 191 Ga. 272 , 11 S.E.2d 900 (1940).

If party sues substantially as soon as occasion arises for assertion of the party's rights, laches is not imputable to that party. Cooper v. Aycock, 199 Ga. 658 , 34 S.E.2d 895 (1945).

Laches does not arise from mere lapse of time. Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5 , 169 S.E.2d 349 (1969).

Mere lapse of time is not itself laches. Grant v. Fourth Nat'l Bank, 229 Ga. 855 , 194 S.E.2d 913 (1972).

Period from which laches is determined is fixed according to circumstances in each case. Eller v. McMillan, 174 Ga. 729 , 163 S.E. 910 (1932).

Laches is equitable doctrine which is independent of statute of limitations, and as to lapse of time necessary for invoking doctrine of laches it may or may not correspond with time specified in the statute of limitations. Prudential Ins. Co. v. Sailors, 69 Ga. App. 628 , 26 S.E.2d 557 (1943).

Although lapse of time is an important element of laches, unless the case falls within operation of statute of limitations, there is no fixed period within which person must assert claim or be barred by laches; length of time depends on circumstances of particular case. Cooper v. Aycock, 199 Ga. 658 , 34 S.E.2d 895 (1945).

Courts may use analogy to statutes of limitations. - Prior to enactment of this section, equity courts acted by analogy to statute of limitations. McDonald v. Sims, 3 Ga. 383 (1847).

While equitable doctrine of laches operates independently of any statute of limitations, courts of equity usually act in obedience and in analogy to statutes of limitations, in cases when it would not be unjust and inequitable to do so. Cooper v. Aycock, 199 Ga. 658 , 34 S.E.2d 895 (1945).

In fixing time when bar of laches may be interposed, the law did not measure altogether by the lapse of time, as was shown by former Code 1933, § 37-119 (see now O.C.G.A. § 23-1-25 ). Wright v. City of Metter, 192 Ga. 75 , 14 S.E.2d 443 (1941).

Unreasonable delay until after death of essential witnesses, practically precluding court from arriving at safe conclusion as to truth of matters in controversy, will bar action for cancellation of deed. Stephens v. Walker, 193 Ga. 330 , 18 S.E.2d 537 (1942).

Three-month delay in service. - No abuse of discretion resulted from an order dismissing a personal injury complaint based on insufficient service of process as the trial judge properly found that the plaintiff's delay in serving the complaint almost three months after learning the defendant's whereabouts, and after the statute of limitation had expired, was attributable to a failure to exercise either reasonable diligence or the greatest possible diligence in doing so. Williams v. Wendland, 283 Ga. App. 109 , 640 S.E.2d 684 (2006).

Equitable action to cancel deed on ground of fraud, which clearly shows that complainant failed to use even slightest diligence to discover fraud, fails to allege cause of action. Hillis v. Clark, 222 Ga. 604 , 150 S.E.2d 922 (1966).

Long acquiescence or laches by parties out of possession is productive of much hardship and injustice to others, and cannot be excused without showing some actual hindrance or impediment caused by fraud or concealment of party in possession. Bryan v. Tate, 138 Ga. 321 , 75 S.E. 205 (1912).

Minority stockholder who postpones complaint that corporate act is ultra vires or irregular for an unreasonable time, or with full knowledge allows large operations to be completed or money to be expended before the stockholder brings suit, is barred by laches and acquiescence of any right to equitable relief with respect thereto. Norris v. Osburn, 243 Ga. 483 , 254 S.E.2d 860 (1979).

Twelve years was unreasonable time to bring action on ultra vires contract of corporation. Winter v. Southern Sec. Co., 155 Ga. 590 , 118