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).

For article, “An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation,” see 55 Ga. L. Rev. 221 (2020).

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

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.

History. 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.

Cross references.

Status of “civil action” as single form of action for purposes of Civil Practice Act, § 9-11-2 .

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

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 Ga. App. LEXIS 175 (1923), aff'd, 157 Ga. 280 , 121 S.E. 238 , 1924 Ga. LEXIS 34 (1924).

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 Ga. LEXIS 79 (1902); Citizens' & S. Nat'l Bank v. Hendricks, 176 Ga. 692 , 168 S.E. 313 , 1933 Ga. LEXIS 255 (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 Ga. App. LEXIS 417 (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 Ga. App. LEXIS 342 (1922).

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.

History. 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.

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.

History. 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 Ga. App. LEXIS 1312 (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 Ga. App. LEXIS 527 (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 Ga. App. LEXIS 467 (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 Ga. App. LEXIS 2054 (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 Ga. App. LEXIS 422 (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 Ga. App. LEXIS 617 (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 Ga. LEXIS 418 (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 Ga. App. LEXIS 2054 (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 Ga. App. LEXIS 1479 (1990).

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.

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

History of Code 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 Ga. LEXIS 422 (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 Ga. LEXIS 688 (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 Ga. LEXIS 239 (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 Ga. App. LEXIS 2296 (1978).

This section does not apply to petition for declaratory judgment. Kiker v. Hefner, 119 Ga. App. 629 , 168 S.E.2d 637 , 1969 Ga. App. LEXIS 1192 (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 Ga. LEXIS 816 (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 Ga. App. LEXIS 1222 (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 Ga. App. LEXIS 2932 (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 Ga. App. LEXIS 2014 (1986); Green v. Thompson, 208 Ga. App. 609 , 431 S.E.2d 390 , 1993 Ga. App. LEXIS 543 (1993), cert. denied, No. S93C1296, 1993 Ga. LEXIS 860 (Ga. Sept. 20, 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 Ga. App. LEXIS 341 (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 Ga. App. LEXIS 37 (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 Ga. App. LEXIS 2115 (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 Ga. LEXIS 380 (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 Ga. App. LEXIS 684 (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 Ga. LEXIS 358 (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 Ga. LEXIS 847 (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 Ga. App. LEXIS 1909 (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 Ga. App. LEXIS 1067 (1992), overruled in part, Walker v. Estate of Mays, 279 Ga. 652 , 619 S.E.2d 679 , 2005 Ga. LEXIS 519 (2005), overruled in part as stated in Stone v. Stone, 295 Ga. App. 783 , 673 S.E.2d 283 , 2009 Ga. App. LEXIS 132 (2009).

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 Ga. App. LEXIS 2166 (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 Ga. App. LEXIS 2224 (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 Ga. App. LEXIS 410 (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 Ga. App. LEXIS 1028, 1973 Ga. App. LEXIS 1684, 1973 Ga. App. LEXIS 1693 (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 Ga. App. LEXIS 1858 (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 Ga. App. LEXIS 1858 (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 Ga. App. LEXIS 1858 (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 Ga. App. LEXIS 963 (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 Ga. App. LEXIS 1955 (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 Ga. App. LEXIS 1955 (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 Ga. App. LEXIS 1052 (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 Ga. App. LEXIS 240 (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, 1984 U.S. App. LEXIS 20974 (11th Cir. 1984).

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.

History. 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 Ga. App. LEXIS 451 (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 Ga. App. LEXIS 908 (2005), cert. denied, No. S06C0064, 2006 Ga. LEXIS 45 (Ga. Jan. 17, 2006).

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 Ga. App. LEXIS 538 (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 Ga. App. LEXIS 7 (2017).

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 Ga. App. LEXIS 2714 (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 Ga. App. LEXIS 1011 (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 Ga. LEXIS 340 (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 , 1928 Ga. LEXIS 167 (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 Ga. LEXIS 672 (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 Ga. App. LEXIS 1215 (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 Ga. App. LEXIS 2714 (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 Ga. App. LEXIS 560 (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 , 2007 Ga. App. LEXIS 73 (2007), cert. denied, No. S07C0915, 2007 Ga. LEXIS 508 (Ga. June 25, 2007), cert. denied, 552 U.S. 1010, 128 S. Ct. 545 , 169 L. Ed. 2 d 373, 2007 U.S. LEXIS 12023 (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 Ga. App. LEXIS 2148 (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 Ga. App. LEXIS 895 (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 Ga. App. LEXIS 895 (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 Ga. App. LEXIS 312 (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 Ga. App. LEXIS 1709 (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 Ga. App. LEXIS 2714 (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 Ga. App. LEXIS 1986 (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 Ga. App. LEXIS 2296 (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 Ga. LEXIS 340 (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 Ga. LEXIS 273 (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 Ga. App. LEXIS 451 (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 Ga. App. LEXIS 2296 (1978).

Pendency of one proceeding is good defense to second proceeding. Terrell v. Griffith, 129 Ga. App. 675 , 200 S.E.2d 485 , 1973 Ga. App. LEXIS 1106 (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 Ga. App. LEXIS 1134 (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 Ga. App. LEXIS 791 (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 Ga. App. LEXIS 791 (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 Ga. App. LEXIS 198 (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 Ga. App. LEXIS 1011 (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 Ga. App. LEXIS 867 (1995), cert. denied, No. S96C0278, 1996 Ga. LEXIS 285 (Ga. Jan. 26, 1996).

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 Ga. App. LEXIS 851 (2011), cert. denied, No. S12C0399, 2012 Ga. LEXIS 561 (Ga. May 29, 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 Ga. App. LEXIS 1011 (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 Ga. App. LEXIS 920 (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 Ga. App. LEXIS 1806 (1985); McLain Bldg. Materials, Inc. v. Hicks, 205 Ga. App. 767 , 423 S.E.2d 681 , 1992 Ga. App. LEXIS 1390 (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 Ga. App. LEXIS 1127 (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 Ga. App. LEXIS 1964 (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 Ga. App. LEXIS 2831 (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 Ga. App. LEXIS 2400 (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 Ga. LEXIS 1359 (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 Ga. LEXIS 340 (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 Ga. LEXIS 28 (1897); Kirby v. Johnson County Sav. Bank, 12 Ga. App. 157 , 76 S.E. 996 , 1913 Ga. App. LEXIS 477 (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 Ga. App. LEXIS 1134 (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 Ga. App. LEXIS 1134 (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 Ga. App. LEXIS 1509 (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 Ga. App. LEXIS 198 (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 Ga. LEXIS 478 (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 Ga. LEXIS 466 (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 Ga. LEXIS 478 (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 Ga. App. LEXIS 1155 (1996), cert. denied, No. S97C0381, 1997 Ga. LEXIS 310 (Ga. Feb. 28, 1997).

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 Ga. App. LEXIS 2060 (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 , 1981 Ga. LEXIS 917 (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 Ga. App. LEXIS 1390 (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 Ga. App. LEXIS 416 (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 Ga. App. LEXIS 1709 (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 Ga. App. LEXIS 2141 (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 Ga. App. LEXIS 1408 (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 Ga. App. LEXIS 1408 (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 Ga. LEXIS 973 (1979); Astin v. Callahan, 222 Ga. App. 226 , 474 S.E.2d 81 , 1996 Ga. App. LEXIS 753 (1996), cert. denied, No. S96C1792, 1996 Ga. LEXIS 1076 (Ga. Oct. 18, 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 Ga. App. LEXIS 1106 (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 Ga. App. LEXIS 798 (1967), overruled, Dawson v. McCart, 169 Ga. App. 434 , 313 S.E.2d 135 , 1984 Ga. App. LEXIS 1581 (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 Ga. LEXIS 402 (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 Ga. App. LEXIS 1011 (1950); Minniefield v. Sylvester, 193 Ga. App. 484 , 388 S.E.2d 526 , 1989 Ga. App. LEXIS 1522 (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 Ga. App. LEXIS 968 (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 Ga. App. LEXIS 507 (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 Ga. App. LEXIS 69 (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 Ga. App. LEXIS 1085 (1972); Stagl v. Assurance Co. of Am., 245 Ga. App. 8 , 539 S.E.2d 173 , 2000 Ga. App. LEXIS 779 (2000), cert. denied, No. S00C1873, 2000 Ga. LEXIS 921 (Ga. Nov. 30, 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 Ga. App. LEXIS 1085 (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 Ga. App. LEXIS 1211 (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 Ga. App. LEXIS 1304 (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 Ga. App. LEXIS 531 (2019), cert. denied, No. S20C0495, 2020 Ga. LEXIS 390 (Ga. May 4, 2020), cert. denied, No. S20C0331, 2020 Ga. LEXIS 380 (Ga. May 4, 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 Ga. LEXIS 847 (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 Ga. App. LEXIS 2086 (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 Ga. LEXIS 212 (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 Ga. App. LEXIS 1210 (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 Ga. App. LEXIS 35 (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 Ga. App. LEXIS 840 (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 , 1988 Ga. App. LEXIS 579 (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 Ga. LEXIS 790 (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 Ga. App. LEXIS 540 (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 Ga. App. LEXIS 540 (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 Ga. App. LEXIS 864 (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 Ga. App. LEXIS 864 (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 Ga. LEXIS 29 (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 Ga. App. LEXIS 160 (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 Ga. App. LEXIS 329 (1914).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

Am. Jur. Pleading and Practice Forms. —

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.

History. 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 Ga. App. LEXIS 421 (1931).

Filing of suit was not a sufficient demand or call. Cheeves v. Ayers, 43 Ga. App. 454 , 159 S.E. 299 , 1931 Ga. App. LEXIS 421 (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 Ga. App. LEXIS 261 (1940).

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.

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

History of Code 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 Ga. App. LEXIS 899 (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 Ga. App. LEXIS 288 (2005), cert. denied, No. S05C1209, 2005 Ga. LEXIS 467 (Ga. June 30, 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 Ga. App. LEXIS 1925 (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 Ga. App. LEXIS 817 (2011), cert. denied, No. S12C0444, 2012 Ga. LEXIS 315 (Ga. Mar. 19, 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, 2018 Bankr. LEXIS 1004 (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 Ga. App. LEXIS 812 (1999), cert. denied, No. S99C1501, 1999 Ga. LEXIS 866 (Ga. Oct. 22, 1999), overruled in part, Styles v. State, 245 Ga. App. 90 , 537 S.E.2d 377 , 2000 Ga. App. LEXIS 909 (2000).

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 Ga. App. LEXIS 777 (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 Ga. LEXIS 58 (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 Ga. App. LEXIS 1214 (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 Ga. App. LEXIS 684 (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 Ga. App. LEXIS 173 (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 Ga. App. LEXIS 545 (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 Ga. App. LEXIS 1731 (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 Ga. LEXIS 581 (1983); Ginsberg v. Termotto, 175 Ga. App. 265 , 333 S.E.2d 120 , 1985 Ga. App. LEXIS 2075 (1985); Grady Tractor Co. v. First Nat'l Bank, 213 Ga. App. 663 , 446 S.E.2d 228 , 1994 Ga. App. LEXIS 701 (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 Ga. App. LEXIS 294 (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 Ga. App. LEXIS 2412 (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 Ga. App. LEXIS 2668 (1981).

Unpublished decision: 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., 720 Fed. Appx. 512, 2017 U.S. App. LEXIS 24339 (11th Cir. 2017).

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 Ga. App. LEXIS 732 (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 Ga. App. LEXIS 2305 (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 Ga. App. LEXIS 417 (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 Ga. App. LEXIS 134 (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 Ga. App. LEXIS 319 (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 Ga. App. LEXIS 684 (1948); McRae v. Britton, 144 Ga. App. 340 , 240 S.E.2d 904 , 1977 Ga. App. LEXIS 2694 (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 Ga. App. LEXIS 652 (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 Ga. App. LEXIS 2305 (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 Ga. App. LEXIS 2668 (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 Ga. App. LEXIS 815 (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 Ga. App. LEXIS 2305 (1976); Bailey v. Fox, 144 Ga. App. 195 , 240 S.E.2d 737 , 1977 Ga. App. LEXIS 2632 (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 Ga. App. LEXIS 4 (1907); Griner v. Foskey, 158 Ga. App. 769 , 282 S.E.2d 150 , 1981 Ga. App. LEXIS 2412 (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 Ga. App. LEXIS 1402 (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 Ga. App. LEXIS 556 (2004), cert. denied, No. S04C1575, 2004 Ga. LEXIS 692 (Ga. Sept. 7, 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 Ga. App. LEXIS 1222 (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 Ga. App. LEXIS 2908 (1979); Fruin-Colnon Corp. v. Air Door, Inc., 157 Ga. App. 804 , 278 S.E.2d 708 , 1981 Ga. App. LEXIS 2016 (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 Ga. App. LEXIS 617 (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 Ga. App. LEXIS 926 (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 Ga. App. LEXIS 1371 (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 Ga. App. LEXIS 809 (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 Ga. App. LEXIS 11 (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 Ga. App. LEXIS 11 (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 Ga. App. LEXIS 11 (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, 1995 Bankr. LEXIS 576 (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 Ga. App. LEXIS 1935 (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 Ga. App. LEXIS 135 (1917); Washington v. Jordan, 28 Ga. App. 18 , 109 S.E. 923 , 1921 Ga. App. LEXIS 462 (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 Ga. App. LEXIS 250 (1933); Erwin v. Wender, 78 Ga. App. 94 , 50 S.E.2d 244 , 1948 Ga. App. LEXIS 688 (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 Ga. App. LEXIS 347 (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 Ga. App. LEXIS 402 (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 Ga. App. LEXIS 688 (1948); Martin v. Hendrix, Waddell, Martin & Co., 140 Ga. App. 557 , 231 S.E.2d 526 , 1976 Ga. App. LEXIS 1560 (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 Ga. App. LEXIS 2104 (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, 1984 U.S. Dist. LEXIS 21483 (N.D. Ga. 1984), aff'd, 774 F.2d 1177, 1985 U.S. App. LEXIS 31529 (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 Ga. App. LEXIS 2541 (1985), overruled in part, Amend v. 485 Props., 280 Ga. 327 , 627 S.E.2d 565 , 2006 Ga. LEXIS 167 (2006).

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 Ga. App. LEXIS 869 (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 Ga. App. LEXIS 571 (2001), cert. denied, No. S01C1415, 2001 Ga. LEXIS 845 (Ga. Oct. 9, 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 Ga. LEXIS 167 (2006).

Unpublished decision: 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., 156 Fed. Appx. 107, 2005 U.S. App. LEXIS 22150 (11th Cir. 2005), cert. denied, 547 U.S. 1164, 126 S. Ct. 2338 , 164 L. Ed. 2 d 841, 2006 U.S. LEXIS 4184 (2006).

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 Ga. LEXIS 58 (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 Ga. App. LEXIS 250 (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 Ga. App. LEXIS 2668 (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 Ga. App. LEXIS 2191 (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 Ga. LEXIS 34 (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 Ga. App. LEXIS 826 (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 Ga. App. LEXIS 1476 (1990).

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 Ga. App. LEXIS 172 (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 Ga. App. LEXIS 319 (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 Ga. App. LEXIS 652 (1951); Henry v. Hemstreet, 86 Ga. App. 863 , 72 S.E.2d 801 , 1952 Ga. App. LEXIS 1082 (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 Ga. App. LEXIS 1700 (1975).

Intention of near relatives that services shall be compensated will govern. Phinazee v. Bunn, 123 Ga. 230 , 51 S.E. 300 , 1905 Ga. LEXIS 421 (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 Ga. App. LEXIS 1700 (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 Ga. App. LEXIS 1700 (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 Ga. App. LEXIS 319 (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 Ga. App. LEXIS 260 (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 Ga. App. LEXIS 53 (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 Ga. App. LEXIS 417 (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 Ga. App. LEXIS 684 (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 Ga. LEXIS 458 (1948); Fuller v. Weekes, 105 Ga. App. 790 , 125 S.E.2d 662 , 1962 Ga. App. LEXIS 1041, rev'd, 218 Ga. 515 , 128 S.E.2d 715 , 1962 Ga. LEXIS 551 (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 Ga. LEXIS 458 (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 , 1891 Ga. LEXIS 260 (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 Ga. App. LEXIS 553 (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 Ga. App. LEXIS 987 (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 Ga. LEXIS 848 (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 Ga. App. LEXIS 172 (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 Ga. App. LEXIS 1700 (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 Ga. App. LEXIS 272 (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 Ga. App. LEXIS 584 (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 Ga. LEXIS 633 (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 Ga. App. LEXIS 321 (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 Ga. App. LEXIS 283 (1944); Sheehan v. City Council, 71 Ga. App. 233 , 30 S.E.2d 502 , 1944 Ga. App. LEXIS 321 (1944); Brackett v. Fulton Nat'l Bank, 80 Ga. App. 467 , 56 S.E.2d 486 , 1949 Ga. App. LEXIS 863 (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 Ga. App. LEXIS 726 (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 Ga. App. LEXIS 283 (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 Ga. App. LEXIS 1399 (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 Ga. App. LEXIS 1399 (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 Ga. App. LEXIS 772 (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 Ga. App. LEXIS 253 (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 Ga. App. LEXIS 768 (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 Ga. App. LEXIS 1498 (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 Ga. App. LEXIS 935 (2004), cert. denied, No. S04C2073, 2004 Ga. LEXIS 1054 (Ga. Nov. 22, 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 Ga. LEXIS 288 (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 Ga. LEXIS 466 (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., No. 1:06-CV-0417-BBM, 2006 U.S. Dist. LEXIS 97034 (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, 2008 U.S. Dist. LEXIS 15494 (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 Ga. App. LEXIS 1023 (1953).

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 Ga. App. LEXIS 666 (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 Ga. App. LEXIS 2412 (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 Ga. App. LEXIS 2412 (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 Ga. App. LEXIS 1244 (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, 2010 U.S. Dist. LEXIS 31299 (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 Ga. App. LEXIS 50 (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 Ga. LEXIS 441 (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 Ga. App. LEXIS 887 (2013), cert. denied, No. S14C0572, 2014 Ga. LEXIS 340 (Ga. Apr. 22, 2014).

Unpublished decision: 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, 609 Fed. Appx. 994, 2015 U.S. App. LEXIS 6801 (11th Cir. 2015).

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.

Am. Jur. Pleading and Practice Forms. —

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.

History. 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 Ga. App. LEXIS 343 (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.

History. 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

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 Ga. App. LEXIS 583 (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 Ga. LEXIS 24 (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 Ga. App. LEXIS 65 (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, 1958 U.S. Dist. LEXIS 4460 (M.D. Ga.), aff'd, U.S. Epperson Underwriting Co. v. Jessup, 260 F.2d 355, 1958 U.S. App. LEXIS 3090 (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, 1978 U.S. Dist. LEXIS 16837 (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, 2003 U.S. Dist. LEXIS 9296 (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 Ga. App. LEXIS 326 (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 Ga. App. LEXIS 122 (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 Ga. App. LEXIS 820 (2014).

Unpublished decision: 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, 585 Fed. Appx. 996, 2014 U.S. App. LEXIS 18396 (11th Cir. 2014).

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 Ga. App. LEXIS 3046 (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 Ga. App. LEXIS 1200 (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 Ga. LEXIS 73 (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 Ga. LEXIS 554 (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 Ga. LEXIS 405 (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, 1908 U.S. App. LEXIS 5036 (C.C.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 Ga. App. LEXIS 453 (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 Ga. App. LEXIS 807 (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 Ga. App. LEXIS 1313 (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 Ga. App. LEXIS 1125 (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 , 1933 Ga. LEXIS 339 (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 Ga. App. LEXIS 368 (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 Ga. App. LEXIS 797 (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 Ga. App. LEXIS 818 (1963).

Homeowners’ actions against loan servicers. —

Unpublished decision: 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., 534 Fed. Appx. 888, 2013 U.S. App. LEXIS 17054 (11th Cir. 2013).

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, 2015 U.S. App. LEXIS 12025 (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 Ga. App. LEXIS 195 (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 , 1933 Ga. LEXIS 339 (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 , 1886 Ga. LEXIS 378 (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 Ga. App. LEXIS 499 (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 Ga. App. LEXIS 857 (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 , 1921 Ga. App. LEXIS 86 (1921) (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 Ga. App. LEXIS 65 (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 Ga. App. LEXIS 1283 (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 Ga. App. LEXIS 711 (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 Ga. App. LEXIS 711 (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, 2012 U.S. App. LEXIS 2276 (11th Cir. 2012).

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 Ga. App. LEXIS 711 (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 Ga. App. LEXIS 711 (1967); Lee v. Petty, 133 Ga. App. 201 , 210 S.E.2d 383 , 1974 Ga. App. LEXIS 1017 (1974); Gilbert v. Van Ord, 203 Ga. App. 660 , 417 S.E.2d 390 , 1992 Ga. App. LEXIS 594 (1992), cert. denied, No. S92C0946, 1992 Ga. LEXIS 464 (Ga. June 4, 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 Ga. App. LEXIS 1511 (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 Ga. App. LEXIS 1511 (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 Ga. App. LEXIS 711 (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 Ga. App. LEXIS 1511 (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 Ga. App. LEXIS 1828 (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 Ga. App. LEXIS 1828 (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 Ga. App. LEXIS 1999 (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 Ga. LEXIS 143 (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, 2007 U.S. Dist. LEXIS 68725 (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, 2005 U.S. Dist. LEXIS 4623 (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, 2007 U.S. Dist. LEXIS 68725 (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., No. 1:11-cv-4139-WSD, 2013 U.S. Dist. LEXIS 159925 (N.D. Ga. Nov. 8, 2013), aff'd, 577 Fed. Appx. 899, 2014 U.S. App. LEXIS 15424 (11th Cir. 2014).

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., No. 1:13-cv-1052-WSD, 2014 U.S. Dist. LEXIS 104426 (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 Ga. App. LEXIS 168 (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 Ga. App. LEXIS 52 (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, 1978 U.S. Dist. LEXIS 16837 (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 Ga. App. LEXIS 1542 (1974), aff'd, 233 Ga. 578 , 212 S.E.2d 377 , 1975 Ga. LEXIS 1377 (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 Ga. App. LEXIS 250 (2010), cert. denied, No. S10C1370, 2010 Ga. LEXIS 861 (Ga. Nov. 1, 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 Ga. LEXIS 419 (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 Ga. LEXIS 917 (1976); Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 , 1978 Ga. LEXIS 1125 (1978); American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186, 1978 U.S. Dist. LEXIS 16837 (N.D. Ga. 1978); Jahannes v. Mitchell, 220 Ga. App. 102 , 469 S.E.2d 255 , 1996 Ga. App. LEXIS 105 (1996), cert. denied, No. S96C0911, 1996 Ga. LEXIS 646 (Ga. May 10, 1996); Rowe Dev. Corp. v. Akin & Flanders, Inc., 240 Ga. App. 766 , 525 S.E.2d 123 , 1999 Ga. App. LEXIS 1484 (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 Ga. App. LEXIS 2921 (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 Ga. LEXIS 1288 (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, 1982 U.S. App. LEXIS 22396 (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 , 1991 Ga. App. LEXIS 1360 (1991), cert. denied, No. S92C0127, 1992 Ga. LEXIS 311 (Ga. Mar. 20, 1992), cert. denied, No. S92C0126, 1992 Ga. LEXIS 312 (Ga. Mar. 20, 1992).

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 Ga. App. LEXIS 446 (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 Ga. App. LEXIS 1038 (2005), cert. denied, No. S06C0303, 2006 Ga. LEXIS 281 (Ga. Apr. 25, 2006).

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 Ga. App. LEXIS 883 (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 Ga. App. LEXIS 768 (1936); First Nat'l Bank & Trust Co. v. Roberts, 187 Ga. 472 , 1 S.E.2d 12 , 1939 Ga. LEXIS 415 (1939); Sybilla v. Connally, 66 Ga. App. 678 , 18 S.E.2d 783 , 1942 Ga. App. LEXIS 274 (1942); Harris v. Joseph B. English Co., 83 Ga. App. 281 , 63 S.E.2d 346 , 1951 Ga. App. LEXIS 851 (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 Ga. LEXIS 410 (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 Ga. LEXIS 617 (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 Ga. LEXIS 410 (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, 1976 U.S. App. LEXIS 11980 (5th Cir. 1976).

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 Ga. App. LEXIS 430 (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 Ga. App. LEXIS 910 (2002), cert. denied, No. S02C1696, 2002 Ga. LEXIS 788 (Ga. Sept. 6, 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, 2007 U.S. App. LEXIS 19182 (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, 2007 U.S. Dist. LEXIS 68725 (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, 1972 U.S. Dist. LEXIS 14485 (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, 1978 U.S. Dist. LEXIS 16837 (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 Ga. App. LEXIS 1333 (2004), cert. denied, No. S05C0402, 2005 Ga. LEXIS 88 (Ga. Jan. 24, 2005).

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 Ga. App. LEXIS 866 (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 Ga. App. LEXIS 866 (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, 1978 U.S. Dist. LEXIS 16837 (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 Ga. App. LEXIS 246 (2006), cert. denied, No. S06C1327, 2006 Ga. LEXIS 552 (Ga. July 13, 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 Ga. LEXIS 970 (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 Ga. App. LEXIS 288 (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 Ga. App. LEXIS 268 (2018), cert. denied, No. S18C1319, 2018 Ga. LEXIS 820 (Ga. Dec. 10, 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 Ga. App. LEXIS 1437 (1994), cert. denied, No. S94C1817, 1994 Ga. LEXIS 1179 (Ga. Dec. 2, 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 Ga. App. LEXIS 872 (1996), cert. denied, No. S96C1938, 1996 Ga. LEXIS 1131 (Ga. Nov. 8, 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 Ga. App. LEXIS 115 (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 Ga. App. LEXIS 367 (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, 2006 U.S. Dist. LEXIS 62400 (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 Ga. App. LEXIS 46 (2007), cert. denied, No. S07C0862, 2007 Ga. LEXIS 387 (Ga. May 14, 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, 2011 U.S. App. LEXIS 16412 (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 Ga. App. LEXIS 882 (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 Ga. App. LEXIS 611 (2011), overruled in part, FDIC v. Loudermilk, 305 Ga. 558 , 826 S.E.2d 116 , 2019 Ga. LEXIS 186 (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 Ga. App. LEXIS 261 (2017), overruled in part, Hanham v. Access Mgmt. Group L.P., 305 Ga. 414 , 825 S.E.2d 217 , 2019 Ga. LEXIS 137 (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 Ga. LEXIS 576 (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 Ga. LEXIS 617 (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 Ga. App. LEXIS 1485 (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 Ga. LEXIS 541 (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, 1982 U.S. App. LEXIS 22396 (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, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff'd, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (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, 1981 U.S. Dist. LEXIS 9561 (S.D. Ga. 1981), aff'd, 667 F.2d 30, 1982 U.S. App. LEXIS 22211 (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 Ga. App. LEXIS 1846 (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 Ga. App. LEXIS 706 (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 Ga. LEXIS 1025 (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 Ga. LEXIS 554 (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, 2011 Bankr. LEXIS 1772 (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 Ga. App. LEXIS 1012 (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 Ga. App. LEXIS 1017 (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 , 1926 Ga. LEXIS 291 (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 Ga. LEXIS 74 (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 Ga. LEXIS 170 (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 , 1926 Ga. LEXIS 291 (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 Ga. LEXIS 24 (1930); First Nat'l Bank v. Rountree, 173 Ga. 117 , 159 S.E. 658 , 1931 Ga. LEXIS 277 (1931); National Mtg. Corp. v. Bullard, 178 Ga. 451 , 173 S.E. 401 , 1934 Ga. LEXIS 74 (1934); Alexander v. Dinwiddie, 214 Ga. 441 , 105 S.E.2d 451 , 1958 Ga. LEXIS 454 (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 Ga. App. LEXIS 867 (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 Ga. App. LEXIS 961 (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 Ga. App. LEXIS 1492 (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, 1978 U.S. Dist. LEXIS 16837 (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 Ga. App. LEXIS 1465 (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 Ga. App. LEXIS 385 (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, 1972 U.S. Dist. LEXIS 14485 (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 Ga. LEXIS 1125 (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 Ga. App. LEXIS 643 (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 Ga. App. LEXIS 1024 (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 Ga. App. LEXIS 2669 (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 Ga. App. LEXIS 2486 (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 Ga. App. LEXIS 436 (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 Ga. App. LEXIS 1310 (1999), cert. denied, No. S00C0414, 2000 Ga. LEXIS 237 (Ga. Mar. 3, 2000).

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 Ga. LEXIS 951 (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 Ga. App. LEXIS 1988 (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 Ga. App. LEXIS 916 (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 Ga. App. LEXIS 616 (2002), cert. denied, No. S02C1417, 2002 Ga. LEXIS 809 (Ga. Sept. 6, 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 Ga. App. LEXIS 1553 (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 Ga. App. LEXIS 1214 (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 Ga. App. LEXIS 667 (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 Ga. LEXIS 210 (2016).

Unpublished decision: 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, 2018 U.S. App. LEXIS 5730 (11th Cir. 2018).

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 Ga. App. LEXIS 146 (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 Ga. App. LEXIS 842 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

Am. Jur. Pleading and Practice Forms. —

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.

History. 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 Ga. LEXIS 912 (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 Ga. LEXIS 931 (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 Ga. App. LEXIS 99 (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 Ga. App. LEXIS 152 (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 Ga. LEXIS 138 (1924); Ryals v. Seaboard Air-Line Ry., 32 Ga. App. 453 , 123 S.E. 733 , 1924 Ga. App. LEXIS 457 (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 Ga. App. LEXIS 395 (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 Ga. App. LEXIS 395 (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 Ga. LEXIS 623 (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 Ga. App. LEXIS 777 (1994), cert. denied, No. S94C1741, 1994 Ga. LEXIS 1147 (Ga. Oct. 28, 1994).

This section permits tenant in common to bring action of trover. Jordan v. Thornton, 7 Ga. 517 , 1849 Ga. LEXIS 173 (1849); Howard v. Snelling & Snelling, 28 Ga. 469 , 1859 Ga. LEXIS 234 (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 Ga. App. LEXIS 433 (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 Ga. App. LEXIS 520 (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 Ga. App. LEXIS 520 (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 Ga. App. LEXIS 104 (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 Ga. App. LEXIS 2069 (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 Ga. LEXIS 104 (1915); Pee Dee Mfg. Co. v. Georgia R.R. & Banking Co., 144 Ga. 176 , 86 S.E. 551 , 1915 Ga. LEXIS 105 (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 Ga. App. LEXIS 918 (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 Ga. LEXIS 304 (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 , 1924 Ga. App. LEXIS 101 (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 Ga. App. LEXIS 80 (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 Ga. LEXIS 256 (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 Ga. App. LEXIS 368 (1907).

Parties in trover action cannot be substituted by amendment. Willis v. Burch, 116 Ga. 374 , 42 S.E. 718 , 1902 Ga. LEXIS 107 (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 Ga. LEXIS 229 (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 Ga. App. LEXIS 514 (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 Ga. App. LEXIS 1249 (2002), cert. denied, No. S03C0300, 2003 Ga. LEXIS 95 (Ga. Jan. 27, 2003).

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., No. 1:11-CV-03518-RWS, 2012 U.S. Dist. LEXIS 56180 (N.D. Ga. Apr. 20, 2012).

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.

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

RESEARCH REFERENCES

Am. Jur. 2d. —

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

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.

History. 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 Ga. App. LEXIS 680 (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 Ga. App. LEXIS 915 (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 Ga. App. LEXIS 1347 (2002), cert. denied, No. S03C0550, 2003 Ga. LEXIS 218 (Ga. Feb. 24, 2003).

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.

History. 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 Ga. App. LEXIS 1364 (1994).

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.

Am. Jur. Pleading and Practice Forms. —

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.

History. Ga. L. 1959, p. 44, §§ 2-5.

Cross references.

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

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

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 Ga. LEXIS 841 (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 Ga. LEXIS 841 (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 Ga. LEXIS 991 (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 Ga. App. LEXIS 1287 (1975).

Unincorporated associations may sue and be sued. Rogers v. Lindsey St. Baptist Church, 104 Ga. App. 487 , 121 S.E.2d 926 , 1961 Ga. App. LEXIS 724 (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 Ga. App. LEXIS 1123 (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 Ga. App. LEXIS 1123 (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 Ga. App. LEXIS 634 (2002), cert. denied, No. S02C1411, 2002 Ga. LEXIS 759 (Ga. Sept. 6, 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 Ga. App. LEXIS 158 (2019).

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.

History. 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 Ga. LEXIS 87 (1852); Raney v. McRae, 14 Ga. 589 , 1854 Ga. LEXIS 141 (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 Ga. App. LEXIS 782 (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 Ga. LEXIS 13 (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 Ga. LEXIS 55 (1867); Stanford & Golden v. Bradford, 45 Ga. 97 , 1872 Ga. LEXIS 170 (1872); Lippincott & Co. v. Behre, 122 Ga. 543 , 50 S.E. 467 , 1905 Ga. LEXIS 255 (1905).

This section permits joint provisors in same county to be joined. Booher v. Worrill, 43 Ga. 587 , 1871 Ga. LEXIS 299 (1871).

Joint contractor who has been served is bound by judgment. Kitchens v. Hutchins, 44 Ga. 620 , 1872 Ga. LEXIS 384 (1872).

Joint executors are joint contractors. Wynn v. Booker, 26 Ga. 553 , 1858 Ga. LEXIS 360 (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 Ga. App. LEXIS 137 (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 Ga. LEXIS 180 (1934).

Liability of unserved partner is not merged. Ells v. Bone, 71 Ga. 466 , 1883 Ga. LEXIS 199 (1883).

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.

History. 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 Ga. LEXIS 244 (1860); Garrard v. Dawson, 49 Ga. 434 , 1873 Ga. LEXIS 395 (1873); Lively v. Ward & McCullough, 23 Ga. App. 805 , 99 S.E. 632 , 1919 Ga. App. LEXIS 367 (1919).

This section applies to action on sheriff’s bond. Morrison v. Slaton, 148 Ga. 294 , 96 S.E. 422 , 1918 Ga. LEXIS 312 (1918); Cone v. American Sur. Co., 29 Ga. App. 676 , 116 S.E. 648 , 1923 Ga. App. LEXIS 160 (1923).

This section applies to action on bond of judge of probate court. State v. Henderson, 120 Ga. 780 , 48 S.E. 334 , 1904 Ga. LEXIS 706 (1904).

This section does not apply to action on open account. Anderson v. Pollard & Co., 62 Ga. 46 , 1878 Ga. LEXIS 297 (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 Ga. LEXIS 445 (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 Ga. LEXIS 445 (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 Ga. LEXIS 492 (1874); Savannah Bank Trust Co. v. Purvis, 6 Ga. App. 275 , 65 S.E. 35 , 1909 Ga. App. LEXIS 259 (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 Ga. LEXIS 364 (1859).

Plaintiff was not bound to join representatives of deceased directors in action against the survivor. Hargroves v. Chambers, 30 Ga. 580 , 1860 Ga. LEXIS 148 (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 Ga. LEXIS 367 (1875); McNaught & Co. v. Bostick, 71 Ga. 782 , 1883 Ga. LEXIS 274 (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 Ga. LEXIS 233 (1861).

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.

History. 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 Ga. App. LEXIS 1620 (1974).

There is no substantial difference between prochein ami (next friend) and guardian ad litem. Sharp v. Findley, 59 Ga. 722 , 1877 Ga. LEXIS 380 (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 Ga. LEXIS 448 (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 Ga. LEXIS 423 (1934).

Infant’s nearest relation should be next friend. Gentle v. Georgia Power Co., 179 Ga. 853 , 177 S.E. 690 , 1934 Ga. LEXIS 423 (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 Ga. LEXIS 423 (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 Ga. LEXIS 219 (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 , 1881 Ga. LEXIS 223 (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 Ga. App. LEXIS 4 (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 Ga. LEXIS 423 (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 Ga. App. LEXIS 291 (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 Ga. App. LEXIS 4 (1911); Mathews v. Fields, 12 Ga. App. 225 , 77 S.E. 11 , 1913 Ga. App. LEXIS 507 (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 Ga. App. LEXIS 823 (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 Ga. LEXIS 592 (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 Ga. App. LEXIS 395 (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 Ga. LEXIS 592 (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 Ga. LEXIS 248 (1859); Wood v. Haines, 72 Ga. 189 , 1883 Ga. LEXIS 60 (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 Ga. LEXIS 623 (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 Ga. LEXIS 371 (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 Ga. LEXIS 448 (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 Ga. App. LEXIS 409 (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 Ga. LEXIS 53 (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 Ga. App. LEXIS 94 (1909); Sams v. Covington Buggy Co., 10 Ga. App. 191 , 73 S.E. 18 , 1911 Ga. App. LEXIS 708 (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 Ga. App. LEXIS 719 (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 , 1920 Ga. LEXIS 381 (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 Ga. App. LEXIS 630 (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 Ga. LEXIS 587 (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 Ga. LEXIS 223 (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 Ga. App. LEXIS 841 (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 Ga. LEXIS 423 (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 Ga. LEXIS 163 (1878); Ross v. Battle, 113 Ga. 742 , 39 S.E. 287 , 1901 Ga. LEXIS 371 (1901).

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.

History. 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 Ga. LEXIS 3 (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 Ga. LEXIS 260 (1858); Hargroves v. Chambers, 30 Ga. 580 , 1860 Ga. LEXIS 148 (1860).

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.

History. 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 Ga. LEXIS 429 (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 Ga. LEXIS 303 (1908).

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 Ga. App. LEXIS 2360 (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.

History. 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 Ga. App. LEXIS 1067 (1967); Fuller v. Booth, 118 Ga. App. 685 , 165 S.E.2d 318 , 1968 Ga. App. LEXIS 1498 (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 Ga. App. LEXIS 1067 (1967); Tarpley v. Hawkins, 144 Ga. App. 598 , 241 S.E.2d 480 , 1978 Ga. App. LEXIS 1700 (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 Ga. App. LEXIS 1498 (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 Ga. App. LEXIS 1067 (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 Ga. LEXIS 377 (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 Ga. App. LEXIS 1263 (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.S. §§ 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, 2007 U.S. Dist. LEXIS 18420 (N.D. Ga. 2007).

RESEARCH REFERENCES

Am. Jur. 2d. —

1 Am. Jur. 2d, Abatement, Survival, and Revival, § 47 et seq.

Am. Jur. Pleading and Practice Forms. —

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.

History. 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 Ga. LEXIS 381 (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 Ga. LEXIS 255 (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 Ga. App. LEXIS 528 (1956).

This section was extended to rights of action in 1952. Posner v. Koplin, 94 Ga. App. 306 , 94 S.E.2d 434 , 1956 Ga. App. LEXIS 528 (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 Ga. LEXIS 381 (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 Ga. App. LEXIS 604 (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 Ga. App. LEXIS 528 (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 Ga. LEXIS 381 (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 Ga. App. LEXIS 787 (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 Ga. App. LEXIS 175 (1923), aff'd, 157 Ga. 280 , 121 S.E. 238 , 1924 Ga. LEXIS 34 (1924); Citizens' & S. Nat'l Bank v. Hendricks, 176 Ga. 692 , 168 S.E. 313 , 1933 Ga. LEXIS 255 (1933).

This section prevents pending action for libel from abating. Johnson v. Bradstreet Co., 87 Ga. 79 , 13 S.E. 250 , 1891 Ga. LEXIS 97 (1891); Posner v. Koplin, 94 Ga. App. 306 , 94 S.E.2d 434 , 1956 Ga. App. LEXIS 528 (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 Ga. LEXIS 511 (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 Ga. App. LEXIS 533 (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 Ga. App. LEXIS 630 (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, 1984 U.S. App. LEXIS 18103 (11th Cir. 1984).

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 Ga. LEXIS 443 (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.S. § 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, 753 F. Supp. 2d 68, 2010 U.S. Dist. LEXIS 126457 (D.D.C. 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 Ga. App. LEXIS 1910 (1987), overruled, Hosley v. Davidson, 211 Ga. App. 529 , 439 S.E.2d 742 , 1993 Ga. App. LEXIS 1554 (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 Ga. App. LEXIS 1554 (1993), cert. denied, No. S94C0542, 1994 Ga. LEXIS 521 (Ga. Feb. 21, 1994).

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 Ga. LEXIS 514 (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 Ga. App. LEXIS 533 (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 Ga. App. LEXIS 551 (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 Ga. App. LEXIS 1047 (2012), cert. denied, No. S13C0579, 2013 Ga. LEXIS 394 (Ga. Apr. 29, 2013), cert. denied, No. S13C0578, 2013 Ga. LEXIS 393 (Ga. Apr. 29, 2013).

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 Ga. App. LEXIS 798 (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 Ga. App. LEXIS 1051 (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, 1971 U.S. App. LEXIS 12041 (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, 1967 U.S. Dist. LEXIS 8233 (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 Ga. App. LEXIS 902 (1919); Central of Ga. Ry. v. Jones, 152 Ga. 92 , 108 S.E. 618 , 1921 Ga. LEXIS 13 (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.S. §§ 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, 2007 U.S. Dist. LEXIS 18420 (N.D. Ga. 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, 2007 U.S. Dist. LEXIS 18420 (N.D. Ga. 2007).

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.

History. 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 Ga. LEXIS 122 (1900).

Entry on minutes may be made after judgment. Pearce v. E.M. Bruce & Co., 38 Ga. 444 , 1868 Ga. LEXIS 108 (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 Ga. LEXIS 108 (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 Ga. App. LEXIS 273 (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 Ga. App. LEXIS 124 (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 Ga. LEXIS 169 (1876).

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.

History. 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 Ga. App. LEXIS 761 (1936).

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.

History. 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 Ga. App. LEXIS 368 (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 Ga. App. LEXIS 3145 (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 Ga. App. LEXIS 630 (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 Ga. App. LEXIS 1964 (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 Ga. App. LEXIS 895 (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 Ga. App. LEXIS 312 (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 Ga. App. LEXIS 538 (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 Ga. App. LEXIS 451 (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 Ga. LEXIS 94 (1933).

Law articulated by this section applies to torts. Owens v. Williams, 87 Ga. App. 238 , 73 S.E.2d 512 , 1952 Ga. App. LEXIS 657 (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 Ga. App. LEXIS 908 (2005), cert. denied, No. S06C0064, 2006 Ga. LEXIS 45 (Ga. Jan. 17, 2006).

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 Ga. LEXIS 398 (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 Ga. App. LEXIS 1623 (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 Ga. App. LEXIS 1623 (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 Ga. LEXIS 194 (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 Ga. LEXIS 790 (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 Ga. App. LEXIS 493 (2018).

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 Ga. LEXIS 637 (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 Ga. LEXIS 365 (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 Ga. LEXIS 159 (1849); Price v. Carlton, 121 Ga. 12 , 48 S.E. 721 , 1904 Ga. LEXIS 2 (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 Ga. LEXIS 398 (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 Ga. LEXIS 180 (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 Ga. LEXIS 309 (1887); McHan v. McHan, 178 Ga. 730 , 174 S.E. 336 , 1934 Ga. LEXIS 157 (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 Ga. App. LEXIS 514 (1942); Owens v. Williams, 87 Ga. App. 238 , 73 S.E.2d 512 , 1952 Ga. App. LEXIS 657 (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 Ga. App. LEXIS 751 (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, 1967 U.S. Dist. LEXIS 8233 (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 Ga. App. LEXIS 2573 (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 Ga. App. LEXIS 580 (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 Ga. App. LEXIS 699 (1965).

Judgment is not conclusive as to third persons. Huggins v. State, 25 Ga. App. 38 , 103 S.E. 32 , 1920 Ga. App. LEXIS 584 (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 , 1977 Ga. App. LEXIS 1797, cert. denied, 434 U.S. 892, 98 S. Ct. 267 , 54 L. Ed. 2 d 177, 1977 U.S. LEXIS 3559 (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 Ga. LEXIS 519 (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 , 1918 Ga. App. LEXIS 505 (1918).

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 Ga. LEXIS 390 (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 Ga. LEXIS 1359 (1979).

This section does not operate as a bar when a judgment is set aside. Taylor v. Smith, 4 Ga. 133 , 1848 Ga. LEXIS 13 (1848).

An erroneous judgment, while it stands unvacated, is a bar to another proceeding. Crutchfield v. State, 24 Ga. 335 , 1858 Ga. LEXIS 206 (1858); Allen v. Allen, 154 Ga. 581 , 115 S.E. 17 , 1922 Ga. LEXIS 427 (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 Ga. LEXIS 375 (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 Ga. App. LEXIS 1011 (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 Ga. App. LEXIS 980 (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 Ga. LEXIS 187 (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 Ga. App. LEXIS 2573 (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 Ga. LEXIS 608 (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 Ga. LEXIS 381 (1898); Price v. Carlton, 121 Ga. 12 , 48 S.E. 721 , 1904 Ga. LEXIS 2 (1904); Edwards v. Carlton, 98 Ga. App. 230 , 105 S.E.2d 372 , 1958 Ga. App. LEXIS 549 (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 Ga. App. LEXIS 720 (1961); Life & Cas. Ins. Co. v. Webb, 112 Ga. App. 344 , 145 S.E.2d 63 , 1965 Ga. App. LEXIS 699 (1965); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343 , 270 S.E.2d 883 , 1980 Ga. App. LEXIS 2573 (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 Ga. App. LEXIS 2408 (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, 1975 U.S. Dist. LEXIS 15922 (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 Ga. App. LEXIS 128 (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 Ga. App. LEXIS 128 (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, 1967 U.S. Dist. LEXIS 8233 (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 Ga. App. LEXIS 2046 (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 Ga. App. LEXIS 895 (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 Ga. LEXIS 296 (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 Ga. App. LEXIS 812 (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 Ga. App. LEXIS 855 (1949).

Plea of res adjudicata is in the nature of an estoppel. Walden v. Walden, 128 Ga. 126 , 57 S.E. 323 , 1907 Ga. LEXIS 46 (1907).

Plea of res adjudicata is not a dilatory plea. Hill v. Cox, 151 Ga. 599 , 107 S.E. 850 , 1921 Ga. LEXIS 345 (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 Ga. LEXIS 509 (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 Ga. App. LEXIS 640 (1926); Harvey v. Wright, 80 Ga. App. 232 , 55 S.E.2d 835 , 1949 Ga. App. LEXIS 812 (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 Ga. LEXIS 608 (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, 1975 U.S. Dist. LEXIS 15922 (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 Ga. App. LEXIS 2573 (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 Ga. LEXIS 37 (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, 1967 U.S. Dist. LEXIS 8233 (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 Ga. App. LEXIS 812 (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 Ga. App. LEXIS 2573 (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, 1975 U.S. Dist. LEXIS 15922 (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 Ga. App. LEXIS 2695 (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 Ga. App. LEXIS 2695 (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 Ga. LEXIS 23 (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 Ga. LEXIS 721 (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 Ga. LEXIS 566 (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 , 1923 Ga. App. LEXIS 672 (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 Ga. LEXIS 345 (1921); Standard Steel Works Co. v. Williams, 158 Ga. 434 , 124 S.E. 21 , 1924 Ga. LEXIS 174 (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 Ga. App. LEXIS 657 (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 Ga. LEXIS 598 (1904); Coleman v. Fields, 142 Ga. 205 , 82 S.E. 529 , 1914 Ga. LEXIS 653 (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 Ga. LEXIS 381 (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.2d 294 , 1970 Ga. App. LEXIS 980 (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 Ga. App. LEXIS 980 (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 Ga. App. LEXIS 980 (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 Ga. LEXIS 187 (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 Ga. App. LEXIS 312 (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 Ga. App. LEXIS 4 (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 Ga. App. LEXIS 630 (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 Ga. App. LEXIS 630 (1960).

Judgments of habeas corpus may be properly pled to subsequent actions. Perry v. McLendon, 62 Ga. 598 , 1879 Ga. LEXIS 582 (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 Ga. App. LEXIS 640 (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.S. § 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 Ga. App. LEXIS 2695 (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 Ga. App. LEXIS 2046 (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 Ga. App. LEXIS 855 (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 Ga. LEXIS 394 (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 Ga. LEXIS 61 (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 Ga. LEXIS 93 (1908).

Claimant who interposed claim by amendment in action is concluded by adverse judgment. Pollard v. King, 63 Ga. 224 , 1879 Ga. LEXIS 174 (1879); Garlington v. Fletcher, 111 Ga. 861 , 36 S.E. 920 , 1900 Ga. LEXIS 843 (1900); McLendon v. Schumate, 128 Ga. 526 , 57 S.E. 886 , 1907 Ga. LEXIS 159 (1907); Exchange Nat'l Bank v. Covington, 160 Ga. 131 , 127 S.E. 453 , 1925 Ga. LEXIS 101 (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 Ga. App. LEXIS 512 (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 Ga. LEXIS 323 (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 Ga. App. LEXIS 678 (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 Ga. App. LEXIS 678 (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 Ga. LEXIS 525 (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 Ga. App. LEXIS 694 (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 , 1866 Ga. LEXIS 101 (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 , 1889 Ga. LEXIS 214 (1889).

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 Ga. App. LEXIS 567 (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 Ga. App. LEXIS 549 (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 Ga. LEXIS 573 (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 Ga. App. LEXIS 160 (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 Ga. LEXIS 321 (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 Ga. LEXIS 467 (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 Ga. App. LEXIS 351 (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 Ga. LEXIS 354 (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 Ga. LEXIS 1359 (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 Ga. App. LEXIS 1011 (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 Ga. App. LEXIS 507 (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 Ga. LEXIS 450 (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 Ga. App. LEXIS 49 (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 Ga. App. LEXIS 1011 (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 Ga. App. LEXIS 1011 (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 Ga. LEXIS 958 (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 Ga. App. LEXIS 920 (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 Ga. App. LEXIS 206 (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 Ga. App. LEXIS 1818 (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 Ga. App. LEXIS 69 (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 Ga. App. LEXIS 2046 (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 Ga. App. LEXIS 1210 (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 Ga. App. LEXIS 1426 (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 , 1953 Ga. App. LEXIS 1157, vacated, 89 Ga. App. 375 , 79 S.E.2d 411 , 1953 Ga. App. LEXIS 969 (1953), rev'd, 210 Ga. 243 , 78 S.E.2d 788 , 1953 Ga. LEXIS 543 (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 Ga. App. LEXIS 2086 (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 Ga. LEXIS 450 (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 Ga. App. LEXIS 1211 (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 Ga. App. LEXIS 1304 (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 Ga. LEXIS 112 (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 Ga. App. LEXIS 1127 (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 Ga. LEXIS 126 (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. 1037 , 1906 Ga. LEXIS 814 (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 Ga. LEXIS 374 (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 Ga. LEXIS 210 (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.

History. Civil Code 1895, § 3738; Civil Code 1910, § 4332; Code 1933, § 3-602.

History of Code 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 , 1913 Ga. LEXIS 1 (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 Ga. LEXIS 995 (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 Ga. LEXIS 340 (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 Ga. App. LEXIS 1127 (1996).

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.

History. 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 Ga. LEXIS 340 (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.S. § 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, 2005 U.S. App. LEXIS 24549 (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.

History. 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 .

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.

History. 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 Ga. LEXIS 505 (1995), cert. denied, 516 U.S. 1046, 116 S. Ct. 706 , 133 L. Ed. 2 d 662, 1996 U.S. LEXIS 65 (1996).

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 Ga. LEXIS 311 (1964); Berry v. Siskin, 128 Ga. App. 3 , 195 S.E.2d 255 , 1973 Ga. App. LEXIS 1360 (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 Ga. App. LEXIS 720 (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 Ga. App. LEXIS 729 (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 Ga. App. LEXIS 2555 (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 Ga. App. LEXIS 720 (1961); Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 , 1964 Ga. LEXIS 311 (1964); Berry v. Siskin, 128 Ga. App. 3 , 195 S.E.2d 255 , 1973 Ga. App. LEXIS 1360 (1973); Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847 , 212 S.E.2d 451 , 1975 Ga. App. LEXIS 2311 (1975); Jefferson v. Ross, 250 Ga. 817 , 301 S.E.2d 268 , 1983 Ga. LEXIS 648 (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 Ga. App. LEXIS 1047 (1993), rev'd, 264 Ga. 127 , 441 S.E.2d 755 , 1994 Ga. LEXIS 285 (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 Ga. App. LEXIS 520 (1992), cert. denied, No. S92C0850, 1992 Ga. LEXIS 669 (Ga. July 16, 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 Ga. App. LEXIS 2208 (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 Ga. App. LEXIS 2311 (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 Ga. App. LEXIS 720 (1961).

Provisions of this section are mandatory. —

See Bowen v. Morrison, 103 Ga. App. 632 , 120 S.E.2d 57 , 1961 Ga. App. LEXIS 1021 (1961); Freeman v. Ehlers, 108 Ga. App. 640 , 134 S.E.2d 530 , 1963 Ga. App. LEXIS 729 (1963); Norton v. Brady, 129 Ga. App. 753 , 201 S.E.2d 188 , 1973 Ga. App. LEXIS 1139 (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 Ga. App. LEXIS 1536 (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 Ga. App. LEXIS 1536 (1989).

Operation of this section cannot be waived by party litigant. Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 , 1964 Ga. LEXIS 311 (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 Ga. App. LEXIS 1728 (1978).

Fact that one defendant died would not prevent dismissal. Swint v. Smith, 219 Ga. 532 , 134 S.E.2d 595 , 1964 Ga. LEXIS 311 (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 Ga. App. LEXIS 1536 (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 Ga. App. LEXIS 1033 (1993), aff'd, 264 Ga. 219 , 443 S.E.2d 610 , 1994 Ga. LEXIS 432 (1994).

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 Ga. LEXIS 432 (1994), overruled in part, Zepp v. Brannen, 283 Ga. 395 , 658 S.E.2d 567 , 2008 Ga. LEXIS 4 (2008), overruled in part as stated in Pilz v. Thibodeau, 293 Ga. App. 532 , 667 S.E.2d 622 , 2008 Ga. App. LEXIS 947 (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 Ga. LEXIS 311 (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 Ga. App. LEXIS 1139 (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 Ga. App. LEXIS 729 (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 Ga. App. LEXIS 1529 (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 Ga. App. LEXIS 2152 (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 Ga. App. LEXIS 1757 (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 , 1987 Ga. App. LEXIS 2105 (1987), cert. denied, 183 Ga. App. 905 .

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 Ga. App. LEXIS 2093 (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 Ga. App. LEXIS 854 (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 Ga. App. LEXIS 548 (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 Ga. App. LEXIS 840 (2009), cert. denied, No. S09C1942, 2009 Ga. LEXIS 611 (Ga. Oct. 5, 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 Ga. LEXIS 403 (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 Ga. LEXIS 4 (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 Ga. App. LEXIS 508 (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 Ga. LEXIS 645 (2010).

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 Ga. App. LEXIS 2311 (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 Ga. App. LEXIS 1360 (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 Ga. LEXIS 454 (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 Ga. App. LEXIS 1404 (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 Ga. LEXIS 648 (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 Ga. App. LEXIS 2784 (1983); Strauss Fuchs Org., Inc. v. LaFitte Invs., Ltd., 177 Ga. App. 891 , 341 S.E.2d 873 , 1986 Ga. App. LEXIS 2478 (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 Ga. App. LEXIS 2311 (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 Ga. LEXIS 311 (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 Ga. App. LEXIS 2190 (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 Ga. App. LEXIS 2190 (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 Ga. App. LEXIS 1678 (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 Ga. App. LEXIS 745 (2012), overruled in part, O'Dell v. Mahoney, 324 Ga. App. 360 , 750 S.E.2d 689 , 2013 Ga. App. LEXIS 848 (2013).

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 Ga. App. LEXIS 2223 (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 Ga. App. LEXIS 582 (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 Ga. App. LEXIS 526 (2010), cert. denied, No. S10C1855, 2011 Ga. LEXIS 55 (Ga. Jan. 13, 2011).

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 Ga. App. LEXIS 390 (2015), cert. denied, No. S15C1838, 2016 Ga. LEXIS 19 (Ga. Jan. 11, 2016).

Statute of limitations not tolled. —

When a Federal Employers’ Liability Act, 45 U.S.C.S. § 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 Ga. App. LEXIS 2669 (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 Ga. App. LEXIS 1360 (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 Ga. App. LEXIS 2831 (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 Ga. LEXIS 648 (1983) (overruling Maroska v. Williams, 146 Ga. App. 130 , 245 S.E.2d 470 , 1978 Ga. App. LEXIS 2223 (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 Ga. App. LEXIS 2126 (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 , 1983 Ga. App. LEXIS 2844 (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 Ga. App. LEXIS 1536 (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 Ga. App. LEXIS 807 (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 Ga. LEXIS 311 (1964); Norton v. Brady, 129 Ga. App. 753 , 201 S.E.2d 188 , 1973 Ga. App. LEXIS 1139 (1973); J.F. Barton Contracting Co. v. Southern Ry., 191 Ga. App. 13 , 380 S.E.2d 724 , 1989 Ga. App. LEXIS 471 (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 Ga. App. LEXIS 947 (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 Ga. App. LEXIS 1021 (1961); Johnson v. McCauley, 123 Ga. App. 393 , 181 S.E.2d 111 , 1971 Ga. App. LEXIS 1238 (1971); Georgia Power Co. v. Whitmire, 146 Ga. App. 29 , 245 S.E.2d 324 , 1978 Ga. App. LEXIS 2190 (1978); Maroska v. Williams, 146 Ga. App. 130 , 245 S.E.2d 470 , 1978 Ga. App. LEXIS 2223 (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 Ga. LEXIS 285 (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 Ga. App. LEXIS 1047 (1993), rev'd, 264 Ga. 127 , 441 S.E.2d 755 , 1994 Ga. LEXIS 285 (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 Ga. App. LEXIS 884 (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 Ga. App. LEXIS 163 (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 Ga. App. LEXIS 2311 (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 Ga. App. LEXIS 645 (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 Ga. App. LEXIS 1529 (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 Ga. App. LEXIS 2311 (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 Ga. App. LEXIS 1006 (1966); Frank Maddox Realty & Mtg., Inc. v. First Nat'l Bank, 196 Ga. App. 114 , 395 S.E.2d 326 , 1990 Ga. App. LEXIS 816 (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 Ga. LEXIS 311 (1962); Frank Maddox Realty & Mtg., Inc. v. First Nat'l Bank, 196 Ga. App. 114 , 395 S.E.2d 326 , 1990 Ga. App. LEXIS 816 (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 Ga. LEXIS 311 (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.

History. 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 , 1935 Ga. LEXIS 186 (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 Ga. App. LEXIS 222 (2004).

This section is remedial and should be liberally construed. Cox v. Berry, 13 Ga. 306 , 1853 Ga. LEXIS 84 (1853); Atlanta, K. & N. Ry. v. Wilson, 119 Ga. 781 , 47 S.E. 366 , 1904 Ga. LEXIS 360 (1904); Lamb v. Howard, 150 Ga. 12 , 102 S.E. 436 , 1920 Ga. LEXIS 5 (1920); Southern Ry. v. Pruitt, 121 Ga. App. 530 , 174 S.E.2d 249 , 1970 Ga. App. LEXIS 1271 (1970).

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 Ga. App. LEXIS 642 (1961); Hiley v. McGoogan, 177 Ga. App. 809 , 341 S.E.2d 461 , 1986 Ga. App. LEXIS 1549 (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 Ga. App. LEXIS 2962 (1978).

Construction with federal statute. —

Georgia Court of Appeals has adopted the grace period approach and construed 28 U.S.C.S. § 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 Ga. App. LEXIS 778 (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 Ga. App. LEXIS 574 (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 Ga. App. LEXIS 1288 (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 Ga. App. LEXIS 975 (1992), aff'd, 263 Ga. 257 , 429 S.E.2d 523 , 1993 Ga. LEXIS 398 (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 Ga. App. LEXIS 1971 (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 Ga. App. LEXIS 2040 (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 Ga. App. LEXIS 1810 (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 Ga. App. LEXIS 1810 (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, 1998 U.S. Dist. LEXIS 3273 (M.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, 1995 U.S. App. LEXIS 11941 (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 Ga. App. LEXIS 804 (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 Ga. App. LEXIS 1183 (2001).

Renewal not permitted after plaintiff failed to exercise diligence to locate defendant in original action. —

In a tort action arising from a motor vehicle accident, the plaintiff could not bring a renewal action following a voluntary dismissal, when the plaintiff served the defendant by publication only in the original action and thereafter failed to exercise diligence to locate the defendant. Durland v. Colotl, 359 Ga. App. 170 , 855 S.E.2d 83 , 2021 Ga. App. LEXIS 114 (2021).

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 Ga. App. LEXIS 879 (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 Ga. App. LEXIS 2040 (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 Ga. App. LEXIS 1875 (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 Ga. LEXIS 584 (1906); Powell v. Fidelity & Deposit Co., 48 Ga. App. 529 , 173 S.E. 196 , 1934 Ga. App. LEXIS 119 (1934); Whalen v. Certain-Teed Prods. Corp., 108 Ga. App. 686 , 134 S.E.2d 528 , 1963 Ga. App. LEXIS 745 (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 Ga. App. LEXIS 247 (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 Ga. App. LEXIS 2290 (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 Ga. App. LEXIS 1006 (1966); Schaffer v. City of Atlanta, 151 Ga. App. 1 , 258 S.E.2d 674 , 1979 Ga. App. LEXIS 2411 (1979), rev'd, 245 Ga. 164 , 264 S.E.2d 6 , 1980 Ga. LEXIS 727 (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 Ga. App. LEXIS 1360 (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 Ga. App. LEXIS 29 (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 Ga. App. LEXIS 363 (2005), cert. denied, No. S05C1425, 2005 Ga. LEXIS 579 (Ga. Sept. 19, 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 Ga. App. LEXIS 1347 (1997), cert. denied, No. S98C0337, 1998 Ga. LEXIS 242 (Ga. Feb. 6, 1998).

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 Ga. App. LEXIS 1392 (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 Ga. App. LEXIS 292 (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 Ga. App. LEXIS 732 (1962); Hudnall v. Kelly, 388 F. Supp. 1352, 1975 U.S. Dist. LEXIS 13976 (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 Ga. App. LEXIS 2737 (1982).

Amended renewal complaint sufficient. —

While the plaintiffs’ renewal complaint referenced the original action by name and case number, it did not provide any other information about the prior suit, that suit’s validity, or the claims alleged and, thus, as originally filed, the renewal complaint did not establish the plaintiff’s right to renew. However, the trial court erred in granting the insurer’s motion to dismiss because the plaintiffs filed an amendment to their timely renewal complaint, alleging the facts necessary for renewal and submitted evidence supporting those allegations. Strickland v. Geico General Insurance Company, 358 Ga. App. 158 , 854 S.E.2d 348 , 2021 Ga. App. LEXIS 25 (2021).

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 Ga. App. LEXIS 312 (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 Ga. App. LEXIS 632 (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 Ga. App. LEXIS 144 (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 Ga. App. LEXIS 1940 (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 Ga. App. LEXIS 923 (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 Ga. App. LEXIS 1555 (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 Ga. App. LEXIS 1968 (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 Ga. App. LEXIS 2596 (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 Ga. App. LEXIS 455 (2008), aff'd, 285 Ga. 437 , 678 S.E.2d 877 , 2009 Ga. LEXIS 287 (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 Ga. LEXIS 287 (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 Ga. App. LEXIS 873 (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 Ga. LEXIS 88 (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 Ga. App. LEXIS 2592 (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 Ga. App. LEXIS 784 (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 Ga. App. LEXIS 480 (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 Ga. App. LEXIS 824 (2013).

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 Ga. App. LEXIS 172 (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 Ga. App. LEXIS 528 (2012), rev'd, No. 10-1-12246-28, 2012 Ga. Super. LEXIS 729 (Ga. Super. Ct. Aug. 2, 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 , 1904 Ga. LEXIS 456 (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 Ga. LEXIS 350 (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 Ga. App. LEXIS 2962 (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, 1975 U.S. Dist. LEXIS 13976 (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 Ga. App. LEXIS 1641 (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 Ga. LEXIS 28 (1897); Planters Rural Tel. Coop. v. Chance, 107 Ga. App. 116 , 129 S.E.2d 384 , 1962 Ga. App. LEXIS 587 (1962), rev'd, 219 Ga. 1 , 131 S.E.2d 541 , 1963 Ga. LEXIS 350 (1963); Haas v. Blake, 148 Ga. App. 366 , 251 S.E.2d 386 , 1978 Ga. App. LEXIS 3157 (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 Ga. LEXIS 350 (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 Ga. App. LEXIS 923 (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 Ga. App. LEXIS 2121 (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 , 1988 Ga. App. LEXIS 596 (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 Ga. App. LEXIS 535 (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 Ga. App. LEXIS 476 (1998), cert. denied, No. S98C1109, 1998 Ga. LEXIS 757 (Ga. June 26, 1998), cert. denied, No. S98C1111, 1998 Ga. LEXIS 769 (Ga. June 26, 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 Ga. App. LEXIS 630 (1998); Parker v. Jester, 244 Ga. App. 494 , 535 S.E.2d 814 , 2000 Ga. App. LEXIS 731 (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 Ga. App. LEXIS 1392 (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 Ga. App. LEXIS 1288 (2007).

Because the plaintiff did not serve the defendant in the original automobile collision suit prior to dismissal, the plaintiff could not utilize the renewal statute to avoid the statute of limitation bar to a second suit. The trial court correctly ruled that the case could not be renewed outside the statute of limitation because the action was not made valid through service before it was dismissed. McWilliams v. Parker, 362 Ga. App. 147 , 867 S.E.2d 151 , 2021 Ga. App. LEXIS 577 (2021).

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 Ga. LEXIS 760 (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 Ga. LEXIS 468, amended, No. S93G1837, No. S94G0225 (Ga. 1994); Urrea v. Flythe, 215 Ga. App. 212 , 450 S.E.2d 266 , 1994 Ga. App. LEXIS 1178 (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 Ga. LEXIS 772 (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, 1982 U.S. Dist. LEXIS 16012 (S.D. Ga. 1982), aff'd, 720 F.2d 1230, 1983 U.S. App. LEXIS 14793 (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 Ga. App. LEXIS 599 (1994), cert. denied, No. S94C1437, 1994 Ga. LEXIS 999 (Ga. Sept. 22, 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 Ga. App. LEXIS 1651 (1999), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314 , 765 S.E.2d 413 , 2014 Ga. App. LEXIS 717 (2014).

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 Ga. App. LEXIS 1651 (1999), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314 , 765 S.E.2d 413 , 2014 Ga. App. LEXIS 717 (2014).

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 Ga. App. LEXIS 921 (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 Ga. App. LEXIS 548 (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 Ga. App. LEXIS 1331 (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 Ga. App. LEXIS 1310 (1993), rev'd sub nom. Hobbs v. Arthur, 264 Ga. 359 , 444 S.E.2d 322 , 1994 Ga. LEXIS 468 (1994), vacated, 214 Ga. App. 354 , 448 S.E.2d 89 , 1994 Ga. App. LEXIS 876 (1994).

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 Ga. App. LEXIS 1310 (1993), rev'd sub nom. Hobbs v. Arthur, 264 Ga. 359 , 444 S.E.2d 322 , 1994 Ga. LEXIS 468 (1994), vacated, 214 Ga. App. 354 , 448 S.E.2d 89 , 1994 Ga. App. LEXIS 876 (1994).

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 Ga. App. LEXIS 257 (2002), cert. denied, No. S02C0981, 2002 Ga. LEXIS 509 (Ga. June 10, 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, 2004 U.S. Dist. LEXIS 29142 (N.D. Ga. 2004).

Plaintiff was allowed to reinstate an original 42 U.S.C.S. § 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, No. CV506-99, No. CV507-04, 2007 U.S. Dist. LEXIS 28964 (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, 1999 U.S. Dist. LEXIS 5955 (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 Ga. App. LEXIS 528 (2012), rev'd, No. 10-1-12246-28, 2012 Ga. Super. LEXIS 729 (Ga. Super. Ct. Aug. 2, 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 Ga. App. LEXIS 1331 (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 Ga. App. LEXIS 1331 (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 Ga. App. LEXIS 333, aff'd, 187 Ga. 51 , 200 S.E. 124 , 1938 Ga. LEXIS 760 (1938); Douglas v. Kelley, 116 Ga. App. 670 , 158 S.E.2d 441 , 1967 Ga. App. LEXIS 923 (1967); Weddington v. Kumar, 149 Ga. App. 857 , 256 S.E.2d 141 , 1979 Ga. App. LEXIS 2058 (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 Ga. LEXIS 760 (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 Ga. LEXIS 350 (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 Ga. App. LEXIS 1026 (1917), aff'd, 148 Ga. 90 , 95 S.E. 994 , 1918 Ga. LEXIS 201 (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 Ga. App. LEXIS 642 (1961); Keramidas v. Department of Human Resources, 147 Ga. App. 820 , 250 S.E.2d 560 , 1978 Ga. App. LEXIS 2962 (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 Ga. App. LEXIS 923 (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 Ga. LEXIS 28 (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 Ga. LEXIS 548 (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 Ga. App. LEXIS 2232 (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 Ga. App. LEXIS 289 (2006), cert. denied, No. S06C1296, 2006 Ga. LEXIS 425 (Ga. June 12, 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 Ga. App. LEXIS 647 (2009), cert. denied, No. S09C1708, 2009 Ga. LEXIS 564 (Ga. Sept. 8, 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 Ga. App. LEXIS 148 (2019), cert. denied, No. S19C0979, 2019 Ga. LEXIS 775 (Ga. Nov. 4, 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 Ga. LEXIS 659 (1983); Shaw v. Lee, 187 Ga. App. 689 , 371 S.E.2d 187 , 1988 Ga. App. LEXIS 810 (1988); Urrea v. Flythe, 215 Ga. App. 212 , 450 S.E.2d 266 , 1994 Ga. App. LEXIS 1178 (1994). (See now the 1989 amendment, which added the payment of costs provision in subsection (a)).

Arrestee whose suit against a law enforcement officer under 42 U.S.C.S. § 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, 2017 U.S. App. LEXIS 23182 (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 Ga. App. LEXIS 1950 (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 Ga. App. LEXIS 956 (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 Ga. App. LEXIS 830 (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 Ga. App. LEXIS 1385 (1976), aff'd, 239 Ga. 94 , 236 S.E.2d 52 , 1977 Ga. LEXIS 824 (1977); Little v. Walker, 250 Ga. 854 , 301 S.E.2d 639 , 1983 Ga. LEXIS 659 (1983); Shaw v. Lee, 187 Ga. App. 689 , 371 S.E.2d 187 , 1988 Ga. App. LEXIS 810 (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 Ga. App. LEXIS 1839 (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 Ga. App. LEXIS 682 (2016), cert. denied, No. S17C0617, 2017 Ga. LEXIS 416 (Ga. May 15, 2017).

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 Ga. App. LEXIS 118 (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 Ga. App. LEXIS 1137 (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 Ga. App. LEXIS 782 (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, 1995 U.S. App. LEXIS 11941 (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 Ga. App. LEXIS 909 (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 Ga. App. LEXIS 1660 (1999), cert. denied, No. S00C0669, 2000 Ga. LEXIS 413 (Ga. May 5, 2000).

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 Ga. App. LEXIS 96 (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 273 , 2000 Ga. App. LEXIS 669 (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 Ga. App. LEXIS 323 (2017).

Renewal permitted within six months. —

Superior court did not err when the court concluded that the 2019 petition was a valid renewal of the property owner’s original action under O.C.G.A. § 9-2-61 because the superior court dismissed the first action without prejudice for lack of jurisdiction based on the property owner combining multiple appeals into one certiorari petition and, therefore, the dismissal of the first action did not operate as an adjudication on the merits and the property owner was able to renew the owner’s action within six months of the dismissal without prejudice, which the owner did. Forsyth County v. Mommies Props. LLC Four Cases, 359 Ga. App. 175 , 855 S.E.2d 126 , 2021 Ga. App. LEXIS 145 (2021).

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 Ga. App. LEXIS 711 (2014), cert. denied, No. S15C0475, 2015 Ga. LEXIS 74 (Ga. Jan. 20, 2015).

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 Ga. App. LEXIS 3020 (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 Ga. LEXIS 273 (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 Ga. App. LEXIS 579 (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 , 1991 Ga. App. LEXIS 1019 (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 Ga. App. LEXIS 1977 (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 Ga. App. LEXIS 2411 (1979), rev'd, 245 Ga. 164 , 264 S.E.2d 6 , 1980 Ga. LEXIS 727 (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 Ga. App. LEXIS 1191 (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 Ga. App. LEXIS 96 (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 Ga. App. LEXIS 254 (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 Ga. App. LEXIS 605 (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.S. § 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 Ga. App. LEXIS 778 (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 Ga. App. LEXIS 364 (2020), cert. denied, No. S20C1452, 2021 Ga. LEXIS 372 (Ga. May 17, 2021).

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 Ga. App. LEXIS 528 (2012), rev'd, No. 10-1-12246-28, 2012 Ga. Super. LEXIS 729 (Ga. Super. Ct. Aug. 2, 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 Ga. App. LEXIS 498 (1995), cert. denied, No. S95C1493, 1995 Ga. LEXIS 1052 (Ga. Sept. 25, 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 Ga. App. LEXIS 294 (2007).

Unpublished decision: 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, 223 Fed. Appx. 842, 2007 U.S. App. LEXIS 6218 (11th Cir. 2007).

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 Ga. App. LEXIS 330 (2018), cert. denied, No. S18C1418, 2019 Ga. LEXIS 88 (Ga. Jan. 22, 2019), cert. denied, No. S18C1423, 2019 Ga. LEXIS 75 (Ga. Jan. 22, 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 Ga. LEXIS 742 (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 Ga. App. LEXIS 1804 (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.S. § 1400 et seq. Cory D., by & Through Diane D. v. Burke County Sch. Dist., 285 F.3d 1294, 2002 U.S. App. LEXIS 4300 (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 Ga. App. LEXIS 656 (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 Ga. App. LEXIS 571 (2008), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314 , 765 S.E.2d 413 , 2014 Ga. App. LEXIS 717 (2014).

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. v. Lawson, 174 Ga. App. 101 , 329 S.E.2d 288 , 1985 Ga. App. LEXIS 1757 (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 Ga. App. LEXIS 183 (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 Ga. App. LEXIS 1 (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 Ga. App. LEXIS 407 (2019).

Because the plaintiffs never served the defendants in their original personal injury actions, the trial court correctly ruled that the cases could not be renewed outside the statute of limitation because the actions were not made valid through service before they were dismissed and the trial court properly dismissed the plaintiffs’ renewal actions. Alston v. Owners Ins. Co., 361 Ga. App. 146 , 863 S.E.2d 397 , 2021 Ga. App. LEXIS 446 (2021).

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 Ga. App. LEXIS 441 (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 Ga. App. LEXIS 781 (2004), cert. denied, No. S04C2044, 2004 Ga. LEXIS 977 (Ga. Oct. 25, 2004).

Unpublished decision: 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.S. § 626(e) and 42 U.S.C.S. § 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.S. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C.S. § 621 et seq., was affirmed because Georgia’s renewal statute, O.C.G.A. § 9-2-61(a) , was inapplicable. Roberts v. Georgia, 228 Fed. Appx. 851, 2007 U.S. App. LEXIS 8005 (11th Cir. 2007).

Unpublished decision: 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.S. §§ 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.S. §§ 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, 223 Fed. Appx. 842, 2007 U.S. App. LEXIS 6218 (11th Cir. 2007).

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 Ga. App. LEXIS 999 (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 Ga. App. LEXIS 574 (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 Ga. App. LEXIS 987 (1998), cert. denied, No. S98C1845, 1998 Ga. LEXIS 1231 (Ga. Dec. 4, 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 Ga. App. LEXIS 98 (2005), cert. denied, No. S05C1105, 2005 Ga. LEXIS 488 (Ga. June 30, 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 Ga. App. LEXIS 634 (2012), cert. denied, No. S12C1993, 2013 Ga. LEXIS 282 (Ga. Mar. 18, 2013).

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 Ga. LEXIS 50 (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 Ga. App. LEXIS 96 (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 Ga. App. LEXIS 735 (2015), cert. denied, No. S16C0508, 2016 Ga. LEXIS 231 (Ga. Mar. 7, 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 Ga. App. LEXIS 734 (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 Ga. App. LEXIS 545 (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 Ga. App. LEXIS 545 (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 , 178 S.E. 386 , 179 S.E. 143 , 1935 Ga. App. LEXIS 228 (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 Ga. LEXIS 350 (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 Ga. App. LEXIS 2290 (1975); Moore v. Tootle, 134 Ga. App. 232 , 214 S.E.2d 184 , 1975 Ga. App. LEXIS 1971 (1975); Brooks v. Douglas, 154 Ga. App. 54 , 267 S.E.2d 495 , 1980 Ga. App. LEXIS 2040 (1980); Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190 , 283 S.E.2d 69 , 1981 Ga. App. LEXIS 2542 (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 Ga. App. LEXIS 1376 (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 Ga. App. LEXIS 408 (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 Ga. App. LEXIS 406 (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 Ga. App. LEXIS 587 (1962), rev'd, 219 Ga. 1 , 131 S.E.2d 541 , 1963 Ga. LEXIS 350 (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 Ga. App. LEXIS 923 (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 Ga. LEXIS 713 (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 Ga. App. LEXIS 928 (1970).

This renewal statute does not apply to void actions. Murray v. Taylor, 131 Ga. App. 697 , 206 S.E.2d 643 , 1974 Ga. App. LEXIS 1524 (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 , 1988 Ga. App. LEXIS 484 (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 Ga. App. LEXIS 229 (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 Ga. App. LEXIS 1256 (1999), cert. denied, No. S00C0323, 2000 Ga. LEXIS 204 (Ga. Feb. 25, 2000).

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 Ga. App. LEXIS 101 (2001), cert. denied, No. S01C0801, 2001 Ga. LEXIS 549 (Ga. June 25, 2001), cert. denied, No. S01C0800, 2001 Ga. LEXIS 550 (Ga. June 25, 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 Ga. App. LEXIS 690 (2001), cert. denied, No. S01C1516, 2001 Ga. LEXIS 951 (Ga. Nov. 30, 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 Ga. App. LEXIS 595 (2006).

Unpublished decision: 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.S. § 1983 action was void because service was never perfected on defendants. Wilson v. Hamilton, 135 Fed. Appx. 213, 2005 U.S. App. LEXIS 8530 (11th Cir. 2005).

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 Ga. App. LEXIS 923 (2007).

Unpublished decision: 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.S. §§ 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, 228 Fed. Appx. 851, 2007 U.S. App. LEXIS 8005 (11th Cir. 2007).

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 Ga. App. LEXIS 69 (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 Ga. App. LEXIS 734 (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 Ga. App. LEXIS 1117 (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 Ga. App. LEXIS 625 (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 Ga. App. LEXIS 1331 (1991).

Section applies only when action dismissed was valid. Southern Flour & Grain Co. v. Simmons, 49 Ga. App. 517 , 176 S.E. 121 , 1934 Ga. App. LEXIS 460 (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 Ga. App. LEXIS 1217 (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 Ga. App. LEXIS 497 (1945); Sosebee v. Steiner, 128 Ga. App. 814 , 198 S.E.2d 325 , 1973 Ga. App. LEXIS 1629 (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 Ga. App. LEXIS 2542 (1981); Hornsby v. Hancock, 165 Ga. App. 543 , 301 S.E.2d 900 , 1983 Ga. App. LEXIS 1940 (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 Ga. App. LEXIS 406 (1991), overruled in part, Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145 , 682 S.E.2d 165 , 2009 Ga. App. LEXIS 846 (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 , 1991 Ga. App. LEXIS 1067 (1991), cert. denied, No. S91C1488, 1991 Ga. LEXIS 581 (Ga. Sept. 6, 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, 1992 U.S. App. LEXIS 58 (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 Ga. App. LEXIS 87 (1996), cert. denied, No. S96C0858, 1996 Ga. LEXIS 542 (Ga. Apr. 25, 1996), overruled, Allen v. Kahn, 231 Ga. App. 438 , 499 S.E.2d 164 , 1998 Ga. App. LEXIS 476 (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 Ga. LEXIS 760 (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 Ga. App. LEXIS 642 (1961); Keramidas v. Department of Human Resources, 147 Ga. App. 820 , 250 S.E.2d 560 , 1978 Ga. App. LEXIS 2962 (1978); Patterson v. Douglas Women's Center, 258 Ga. 803 , 374 S.E.2d 737 , 1989 Ga. LEXIS 88 (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 Ga. App. LEXIS 1102 (1996), aff'd, 268 Ga. 432 , 491 S.E.2d 50 , 1997 Ga. LEXIS 634 (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 Ga. LEXIS 634 (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 Ga. App. LEXIS 1137 (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 Ga. LEXIS 252 (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 Ga. App. LEXIS 275 (2008), cert. denied, No. S08C1179, 2008 Ga. LEXIS 676 (Ga. Sept. 8, 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 Ga. App. LEXIS 846 (2009), aff'd, 287 Ga. 406 , 696 S.E.2d 640 , 2010 Ga. LEXIS 508 (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 Ga. LEXIS 312 (1993); Burns v. Radiology Assocs., 214 Ga. App. 76 , 446 S.E.2d 788 , 1994 Ga. App. LEXIS 774 (1994); Hanflik v. Ratchford, 848 F. Supp. 1539, 1994 U.S. Dist. LEXIS 4980 (N.D. Ga. 1994), aff'd, 56 F.3d 1391, 1995 U.S. App. LEXIS 14382 (11th Cir. 1995); Thompson v. Long, 225 Ga. App. 719 , 484 S.E.2d 666 , 1997 Ga. App. LEXIS 253 (1997), cert. denied, No. S97C1205, 1997 Ga. LEXIS 764 (Ga. Sept. 5, 1997), cert. denied, 522 U.S. 1147, 118 S. Ct. 1165 , 140 L. Ed. 2 d 175, 1998 U.S. LEXIS 1498 (1998).

Action on contract is not renewal of action of trover. Southern Express Co. v. Sinclair, 135 Ga. 155 , 68 S.E. 1113 , 1910 Ga. LEXIS 454 (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 Ga. App. LEXIS 1608 (1984); Patterson v. Rosser Fabrap Int'l, Inc., 190 Ga. App. 657 , 379 S.E.2d 787 , 1989 Ga. App. LEXIS 369 (1989); Allstate Ins. Co. v. Baldwin, 244 Ga. App. 664 , 536 S.E.2d 558 , 2000 Ga. App. LEXIS 827 (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 Ga. App. LEXIS 909 (2004).

Statute not applicable if claims plaintiff filed in first lawsuit were dismissed on merits. —

Unpublished decision: Court of appeals affirmed a district court’s judgment dismissing an action which an arrestee filed, pursuant to 42 U.S.C.S. § 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, 154 Fed. Appx. 878, 2005 U.S. App. LEXIS 24958 (11th Cir. 2005), cert. denied, 549 U.S. 849, 127 S. Ct. 114 , 166 L. Ed. 2 d 84, 2006 U.S. LEXIS 6633 (2006).

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 Ga. App. LEXIS 1534 (1999), cert. denied, No. S00C0612, 2000 Ga. LEXIS 364 (Ga. May 1, 2000).

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 Ga. App. LEXIS 1332 (2005), cert. denied, No. S06C0806, 2006 Ga. LEXIS 545 (Ga. July 13, 2006).

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 Ga. App. LEXIS 497 (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 Ga. App. LEXIS 1983 (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 Ga. App. LEXIS 1591 (1989); Sletto v. Hospital Auth., 239 Ga. App. 203 , 521 S.E.2d 199 , 1999 Ga. App. LEXIS 990 (1999), cert. denied, No. S99C1678, 1999 Ga. LEXIS 935 (Ga. Oct. 29, 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 Ga. App. LEXIS 612 (1955); Thornhill v. Bullock, 118 Ga. App. 186 , 162 S.E.2d 886 , 1968 Ga. App. LEXIS 1348 (1968), overruled, McMichael v. Georgia Power Co., 133 Ga. App. 593 , 211 S.E.2d 632 , 1974 Ga. App. LEXIS 1145 (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 Ga. App. LEXIS 463 (1941), overruled in part, Burks v. Wheeler, 92 Ga. App. 478 , 88 S.E.2d 793 , 1955 Ga. App. LEXIS 612 (1955).

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 , 1904 Ga. LEXIS 456 (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 , 178 S.E. 386 , 179 S.E. 143 , 1935 Ga. App. LEXIS 228 (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 Ga. App. LEXIS 463 (1941), overruled in part, Burks v. Wheeler, 92 Ga. App. 478 , 88 S.E.2d 793 , 1955 Ga. App. LEXIS 612 (1955).

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 Ga. App. LEXIS 612 (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 Ga. App. LEXIS 526 (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 Ga. App. LEXIS 526 (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 Ga. App. LEXIS 887 (2002), cert. denied, No. S02C1861, 2002 Ga. LEXIS 951 (Ga. Oct. 16, 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 Ga. LEXIS 548 (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 Ga. LEXIS 452 (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 , 1991 Ga. App. LEXIS 431 (1991), cert. denied, No. S91C0985, 1991 Ga. LEXIS 770 (Ga. May 15, 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 Ga. LEXIS 188 (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 Ga. App. LEXIS 460 (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 Ga. App. LEXIS 841 (2009), cert. denied, No. S09C1940, 2009 Ga. LEXIS 650 (Ga. Oct. 19, 2009), cert. denied, No. S09C1934, 2009 Ga. LEXIS 653 (Ga. Oct. 19, 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 Ga. App. LEXIS 714 (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 Ga. LEXIS 1199 (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 Ga. App. LEXIS 823 (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 Ga. LEXIS 1199 (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 Ga. LEXIS 50 (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 Ga. App. LEXIS 1067 (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 Ga. LEXIS 772 (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 Ga. LEXIS 368 (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 Ga. LEXIS 548 (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 Ga. App. LEXIS 268 (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, 2008 U.S. Dist. LEXIS 55756 (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 Ga. App. LEXIS 678 (2013), cert. denied, No. S13C1810, 2013 Ga. LEXIS 936 (Ga. Nov. 4, 2013), cert. denied, No. S13C1715, 2013 Ga. LEXIS 941 (Ga. Nov. 4, 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 , 1904 Ga. LEXIS 456 (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 , 1904 Ga. LEXIS 456 (1904); Guest v. Atlantic Coast Line R.R., 37 Ga. App. 102 , 139 S.E. 97 , 1927 Ga. App. LEXIS 494 (1927).

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 Ga. App. LEXIS 1 (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 Ga. App. LEXIS 1940 (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 Ga. App. LEXIS 1940 (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 Ga. App. LEXIS 1009 (2003), cert. denied, No. S04C0114, 2004 Ga. LEXIS 102 (Ga. Jan. 20, 2004), cert. denied, No. S04C0106, 2004 Ga. LEXIS 103 (Ga. Jan. 20, 2004).

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 Ga. App. LEXIS 1400 (1992), cert. denied, No. S93C0273, 1993 Ga. LEXIS 157 (Ga. Feb. 5, 1993).

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 Ga. App. LEXIS 1 (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 Ga. App. LEXIS 2427 (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 Ga. App. LEXIS 1269 (1997), cert. denied, No. S98C0239, 1998 Ga. LEXIS 305 (Ga. Feb. 20, 1998).

This section applies when case is dismissed for want of prosecution. Rountree v. Key, 71 Ga. 214 , 1883 Ga. LEXIS 163 (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 Ga. App. LEXIS 534 (1922).

This section applies to all ordinary actions, including ejectment actions. Moss v. Keesler, 60 Ga. 44 , 1878 Ga. LEXIS 368 (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 Ga. App. LEXIS 495 (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 Ga. App. LEXIS 2411 (1979), rev'd, 245 Ga. 164 , 264 S.E.2d 6 , 1980 Ga. LEXIS 727 (1980).

This section applies to certiorari proceedings. Brown v. Seals, 17 Ga. App. 4 , 86 S.E. 277 , 1915 Ga. App. LEXIS 237 (1915); Brackett v. Sebastian, 18 Ga. App. 525 , 89 S.E. 1102 , 1916 Ga. App. LEXIS 1092 (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 Ga. App. LEXIS 467 (1927); Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123 , 177 S.E. 260 , 1934 Ga. App. LEXIS 650 (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 Ga. LEXIS 420 (1931).

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 Ga. App. LEXIS 589 (1933).

Void certiorari cannot be renewed. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300 , 175 S.E. 267 , 1934 Ga. App. LEXIS 371 (1934); Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123 , 177 S.E. 260 , 1934 Ga. App. LEXIS 650 (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 Ga. App. LEXIS 2696 (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, 1987 U.S. Dist. LEXIS 158 (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, 1987 U.S. Dist. LEXIS 7177 (N.D. Ga. 1987), aff'd, 850 F.2d 653, 1988 U.S. App. LEXIS 9980 (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, 1981 U.S. Dist. LEXIS 9953 (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 Ga. LEXIS 28 (1882); Webb v. Southern Cotton Oil Co., 131 Ga. 682 , 63 S.E. 135 , 1908 Ga. LEXIS 178 (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 Ga. LEXIS 432 (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 Ga. App. LEXIS 298 (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 Ga. App. LEXIS 832 (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, 1975 U.S. Dist. LEXIS 13976 (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 Ga. App. LEXIS 2592 (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 Ga. App. LEXIS 2592 (1977); Laine v. Wright, 586 F.2d 607, 1978 U.S. App. LEXIS 6988 (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, 1978 U.S. Dist. LEXIS 7174 (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 Ga. App. LEXIS 2967 (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 Ga. App. LEXIS 2967 (1981).

Unpublished decision: 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.S. § 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., 138 Fed. Appx. 136, 2005 U.S. App. LEXIS 7961 (11th Cir. 2005).

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 Ga. App. LEXIS 715 (1963).

O.C.G.A. § 9-2-61 is inapplicable to Federal Employers’ Liability Act (45 U.S.C.S. § 51 et seq.) actions. Smith v. Seaboard Sys. R.R., 179 Ga. App. 822 , 348 S.E.2d 97 , 1986 Ga. App. LEXIS 2669 (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.S. § 101 et seq. J.F. Barton Contracting Co. v. Southern Ry., 191 Ga. App. 13 , 380 S.E.2d 724 , 1989 Ga. App. LEXIS 471 (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 Ga. App. LEXIS 317 (1934); Hicks v. Standard Accident Ins. Co., 52 Ga. App. 828 , 184 S.E. 808 , 1936 Ga. App. LEXIS 263 (1936); Gordy v. Callaway Mills Co., 111 Ga. App. 798 , 143 S.E.2d 401 , 1965 Ga. App. LEXIS 1104 (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 Ga. LEXIS 554 (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 Ga. App. LEXIS 2542 (1981).

This section does not apply to foreclosure of lien on sawmill. Walker v. Burt, 57 Ga. 20 , 1876 Ga. LEXIS 6 (1876).

This section has no application to disbarment proceeding. Williford v. State, 56 Ga. App. 840 , 194 S.E. 384 , 1937 Ga. App. LEXIS 247 (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 , 1895 Ga. LEXIS 563 (1895).

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, 1921 U.S. Dist. LEXIS 1169 (D. Ga.), aff'd, 276 F. 400, 1921 U.S. App. LEXIS 2101 (5th Cir. 1921).

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, 1987 U.S. Dist. LEXIS 9634 (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 Ga. LEXIS 659 (1983).

Dismissal of action for failure to pay previous fees and costs. —

Unpublished decision: 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., 299 Fed. Appx. 856, 2008 U.S. App. LEXIS 22712 (11th Cir. 2008).

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 Ga. App. LEXIS 1091 (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 Ga. App. LEXIS 1754 (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 Ga. App. LEXIS 2062 (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 Ga. App. LEXIS 612 (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 Ga. LEXIS 921 (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 Ga. App. LEXIS 537 (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 Ga. App. LEXIS 1392 (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 Ga. App. LEXIS 1035 (2004), cert. denied, No. S04C2090, 2004 Ga. LEXIS 1053 (Ga. Nov. 22, 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 Ga. App. LEXIS 846 (2009), aff'd, 287 Ga. 406 , 696 S.E.2d 640 , 2010 Ga. LEXIS 508 (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 Ga. App. LEXIS 1414 (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 Ga. App. LEXIS 292 (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 Ga. App. LEXIS 833 (2009), cert. denied, No. S09C2031, 2010 Ga. LEXIS 80 (Ga. Jan. 25, 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 Ga. App. LEXIS 977 (2009), aff'd, 288 Ga. 53 , 701 S.E.2d 165 , 2010 Ga. LEXIS 772 (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 Ga. LEXIS 508 (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.

History. 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

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 Ga. App. LEXIS 931 (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 Ga. App. LEXIS 330 (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 Ga. App. LEXIS 931 (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 Ga. App. LEXIS 330 (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 Ga. LEXIS 571 (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 Ga. LEXIS 212 (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 Ga. App. LEXIS 1044 (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 Ga. LEXIS 374 (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 Ga. LEXIS 772 (1904); White v. Bryant, 136 Ga. 423 , 71 S.E. 677 , 1911 Ga. LEXIS 564 (1911); Williams v. Holland, 9 Ga. App. 494 , 71 S.E. 760 , 1911 Ga. App. LEXIS 201 (1911); Collins v. Burkhalter, 144 Ga. 695 , 87 S.E. 888 , 1916 Ga. LEXIS 85 (1916); Morgan v. Hutcheson, 32 Ga. App. 501 , 123 S.E. 904 , 1924 Ga. App. LEXIS 505 (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 Ga. App. LEXIS 305 (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 Ga. LEXIS 374 (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 Ga. App. LEXIS 1839 (1975); Perry v. Landmark Fin. Corp., 141 Ga. App. 62 , 232 S.E.2d 399 , 1977 Ga. App. LEXIS 1763 (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 Ga. App. LEXIS 232 (1936).

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 Ga. LEXIS 311 (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 Ga. App. LEXIS 1044 (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 Ga. LEXIS 584 (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 Ga. App. LEXIS 232 (1936); Register v. Sanders, 103 Ga. App. 368 , 119 S.E.2d 294 , 1961 Ga. App. LEXIS 942 (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 Ga. App. LEXIS 942 (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 Ga. App. LEXIS 1044 (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 Ga. App. LEXIS 508 (1908); Williams v. Holland, 9 Ga. App. 494 , 71 S.E. 760 , 1911 Ga. App. LEXIS 201 (1911); German Alliance Ins. Co. v. Hawes, 18 Ga. App. 338 , 89 S.E. 527 , 1916 Ga. App. LEXIS 350 (1916).

Charging costs to counsel is insufficient. Board of Educ. v. Kelley, 126 Ga. 479 , 55 S.E. 238 , 1906 Ga. LEXIS 418 (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 Ga. LEXIS 188 (1885); White v. Moss & Childs, 92 Ga. 244 , 18 S.E. 13 , 1893 Ga. LEXIS 50 (1893); Doody Co. v. Jeffcoat, 127 Ga. 301 , 56 S.E. 421 , 1907 Ga. LEXIS 241 (1907); Southern Ry. v. Rowe, 2 Ga. App. 557 , 59 S.E. 462 , 1907 Ga. App. LEXIS 451 (1907); Bunting v. Hutchinson, 5 Ga. App. 194 , 63 S.E. 49 , 1908 Ga. App. LEXIS 64 (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 Ga. App. LEXIS 339 (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 Ga. LEXIS 241 (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 Ga. App. LEXIS 544 (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 , 1900 Ga. LEXIS 347 (1900), writ of error dismissed, 22 S. Ct. 937 , 46 L. Ed. 1265 (1902); Southern Ry. v. Rowe, 2 Ga. App. 557 , 59 S.E. 462 , 1907 Ga. App. LEXIS 451 (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 Ga. App. LEXIS 579 (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 Ga. LEXIS 430 (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.

History. 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 Ga. App. LEXIS 1044 (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 Ga. App. LEXIS 232 (1936).

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 Ga. App. LEXIS 232 (1936); Register v. Sanders, 103 Ga. App. 368 , 119 S.E.2d 294 , 1961 Ga. App. LEXIS 942 (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 Ga. App. LEXIS 942 (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 Ga. App. LEXIS 2629 (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 Ga. LEXIS 275 (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 Ga. LEXIS 83 (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 Ga. App. LEXIS 181 (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 Ga. App. LEXIS 119 (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 Ga. App. LEXIS 571 (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 Ga. App. LEXIS 181 (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 Ga. App. LEXIS 119 (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 Ga. App. LEXIS 119 (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 Ga. LEXIS 275 (1933).

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

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 Ga. LEXIS 940 (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 Ga. LEXIS 395 (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 Ga. LEXIS 395 (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 Ga. LEXIS 950 (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 Ga. LEXIS 1287 (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 Ga. App. LEXIS 221 (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, 1978 U.S. Dist. LEXIS 13893 (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, 1973 U.S. App. LEXIS 11611 (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, 1959 U.S. Dist. LEXIS 3741 (D. Ga.), aff'd, 268 F.2d 739, 1959 U.S. App. LEXIS 5337 (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 Ga. LEXIS 564 (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.

History. 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).

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 , 1893 Ga. LEXIS 357 (1893).

Prescription does not run against state. Kirschner v. Western & A.R.R., 67 Ga. 760 , 1881 Ga. LEXIS 275 (1881); Dean v. Feely, 69 Ga. 804 , 1883 Ga. LEXIS 121 (1883).

This section applies to counties. MacNeill v. McElroy, 193 Ga. 55 , 17 S.E.2d 169 , 1941 Ga. LEXIS 582 (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 Ga. LEXIS 3 (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 Ga. App. LEXIS 596 (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 Ga. LEXIS 783 (2016).

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.

History. Ga. L. 1899, p. 60, § 1; Civil Code 1910, § 4372; Code 1933, § 3-716.

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.

History. 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 Ga. LEXIS 155 (1898).

Provisions of this section are not available to complainant. Steele v. City of Waycross, 190 Ga. 816 , 10 S.E.2d 867 , 1940 Ga. LEXIS 577 (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 Ga. LEXIS 565 (1906), rev'd, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 , 1907 U.S. LEXIS 1209 (1907); Steele v. City of Waycross, 190 Ga. 816 , 10 S.E.2d 867 , 1940 Ga. LEXIS 577 (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 Ga. App. LEXIS 877 (1917).

Equitable doctrine of laches is not applicable to actions at law. Fletcher v. Gillespie, 201 Ga. 377 , 40 S.E.2d 45 , 1946 Ga. LEXIS 489 (1946); Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5 , 169 S.E.2d 349 , 1969 Ga. App. LEXIS 659 (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 Ga. App. LEXIS 2324 (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 Ga. LEXIS 270 (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 Ga. LEXIS 516 (1995); Head v. CSX Transp., Inc., 227 Ga. App. 818 , 490 S.E.2d 497 , 1997 Ga. App. LEXIS 942 (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 Ga. App. LEXIS 155 (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 Ga. App. LEXIS 155 (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 Ga. LEXIS 354 (1943); Cooper v. Aycock, 199 Ga. 658 , 34 S.E.2d 895 , 1945 Ga. LEXIS 409 (1945); Georgian Villa, Inc. v. City Nat'l Bank, 10 Bankr. 79, 1981 Bankr. LEXIS 4745 (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 Ga. LEXIS 594 (2019).

Applicability of doctrine of laches depends on facts of each particular case. Georgian Villa, Inc. v. City Nat'l Bank, 10 Bankr. 79, 1981 Bankr. LEXIS 4745 (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 Ga. App. LEXIS 155 (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 Ga. LEXIS 527 (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 Ga. App. LEXIS 392 (2018), cert. denied, No. S18C1606, 2019 Ga. LEXIS 209 (Ga. Apr. 1, 2019).

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 Ga. LEXIS 211 (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 Ga. LEXIS 525 (1950); Welch v. Welch, 215 Ga. 198 , 109 S.E.2d 757 , 1959 Ga. LEXIS 434 (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 Ga. LEXIS 182 (1934); Stephens v. Walker, 193 Ga. 330 , 18 S.E.2d 537 , 1942 Ga. LEXIS 385 (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 Ga. LEXIS 354 (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 Ga. LEXIS 409 (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 Ga. LEXIS 434 (1959); Ehrhart v. Brooks, 231 Ga. 272 , 201 S.E.2d 464 , 1973 Ga. LEXIS 670 (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, 1981 Bankr. LEXIS 4745 (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 Ga. LEXIS 807 (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, 1981 Bankr. LEXIS 4745 (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 Ga. LEXIS 632 (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 Ga. App. LEXIS 2324 (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 Ga. LEXIS 632 (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 Ga. LEXIS 409 (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 Ga. App. LEXIS 659 (1969).

Mere lapse of time is not itself laches. Grant v. Fourth Nat'l Bank, 229 Ga. 855 , 194 S.E.2d 913 , 1972 Ga. LEXIS 807 (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 Ga. LEXIS 126 (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 Ga. App. LEXIS 155 (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 Ga. LEXIS 409 (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 Ga. LEXIS 118 (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 Ga. LEXIS 409 (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 Ga. LEXIS 390 (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 Ga. LEXIS 385 (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 Ga. App. LEXIS 1560 (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 Ga. LEXIS 574 (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 Ga. LEXIS 294 (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 Ga. LEXIS 951 (1979).

Twelve years was unreasonable time to bring action on ultra vires contract of corporation. Winter v. Southern Sec. Co., 155 Ga. 590 , 118 S.E. 214 , 1923 Ga. LEXIS 130 (1923).

Voluntary delay of three years after knowledge of fraud perpetrated seven years before was inexcusable and barred petitioner of any right of action which the petitioner might have had. Reynolds & Hamby Estate Mtg. Co. v. Martin, 116 Ga. 495 , 42 S.E. 796 , 1902 Ga. LEXIS 148 (1902); Bryan v. Tate, 138 Ga. 321 , 75 S.E. 205 , 1912 Ga. LEXIS 294 (1912).

Delay of 18 years after knowledge of fraud is laches. McWhorter v. Cheney, 121 Ga. 541 , 49 S.E. 603 , 1904 Ga. LEXIS 225 (1904).

Thirty-six year delay was an inordinate delay. —

When an executrix waited 36 years after certain property was titled in a brother’s name to bring a constructive trust in favor of a decedent’s estate under O.C.G.A. § 53-12-93(a), the delay was inordinate; therefore, the claim was barred by laches under O.C.G.A. § 9-3-3 and summary judgment was properly granted. Cagle v. Cagle, 277 Ga. 219 , 586 S.E.2d 665 , 2003 Ga. LEXIS 783 (2003).

Action to complete sale by sheriff was barred by laches, when two years elapsed before it was brought. Hardin v. Adair, 140 Ga. 263 , 78 S.E. 1073 , 1913 Ga. LEXIS 102 (1913).

Since an owner of property allowed street improvements to be made and enjoyed benefits thereof for several years without taking legal proceedings to prevent expenditure of money for project, the owner was estopped from enjoining sale of the owner’s property to pay assessments. Raines v. Clay, 161 Ga. 574 , 131 S.E. 499 , 1926 Ga. LEXIS 304 (1926).

Mere failure of insured to read policy does not amount to such laches as will debar the insured from having such policy reformed for mistake therein. Southern Feed Stores, Inc. v. Great Am. Indem. Co., 182 Ga. 442 , 185 S.E. 723 , 1936 Ga. LEXIS 382 (1936).

Defendant’s suit is properly barred by laches when defendant’s claim of a resulting trust in a house is based on payments made 35 years ago to a person who is the sole record owner and is now dead. Stone v. Williams, 265 Ga. 480 , 458 S.E.2d 343 , 1995 Ga. LEXIS 390 (1995).

Laches does not apply to mandamus. Addis v. Smith, 226 Ga. 894 , 178 S.E.2d 191 , 1970 Ga. LEXIS 728 (1970), overruled, Marsh v. Clarke County Sch. Dist., 292 Ga. 28 , 732 S.E.2d 443 , 2012 Ga. LEXIS 791 (2012).

Laches not available in legal 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 Ga. App. LEXIS 977 (2009), aff'd, 288 Ga. 53 , 701 S.E.2d 165 , 2010 Ga. LEXIS 772 (2010).

Plaintiff’s right to recover share of remainder estate is plain statutory right not subject to bar of laches. Perkins v. First Nat'l Bank, 221 Ga. 82 , 143 S.E.2d 474 , 1965 Ga. LEXIS 389 (1965).

Laches not applicable to recovery of land. —

Doctrine of stale demands, or laches, is purely equitable and is not applicable to complaint for recovery of land. Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 , 1941 Ga. LEXIS 557 (1941); Jones v. Tri-State Elec. Coop., 212 Ga. 577 , 94 S.E.2d 497 , 1956 Ga. LEXIS 449 (1956).

Laches will not be imputed to one in peaceable possession of property for delay in resorting to court of equity to establish right to legal title. Shirley v. Shirley, 209 Ga. 366 , 72 S.E.2d 719 , 1952 Ga. LEXIS 533 (1952).

While equity follows the law as to limitations of actions, neither laches nor statute of limitations will run against one in peaceable possession of property under claim of ownership for delay in resorting to courts of equity to establish one’s rights. Crow v. Whitfield, 105 Ga. App. 436 , 124 S.E.2d 648 , 1962 Ga. App. LEXIS 949 (1962).

Quiet title actions. —

Trial court did not err in failing to rule that a railroad’s petition to quiet title was barred by laches as no evidence was presented regarding when the railroad became aware of the contestant’s affidavits of possession, the reason for the railroad’s delay in filing a petition to quiet title, whether the railroad could have acted sooner than it did, and whether any evidence was lost due to the delay. Thompson v. Cent. of Ga. R.R., 282 Ga. 264 , 646 S.E.2d 669 , 2007 Ga. LEXIS 415 (2007).

Laches does not apply to uncollected child support. —

Judgment forgiving a father’s child support arrearage based on the mother’s delay in making the claim was reversed because laches does not apply to claims for uncollected child support and the dormancy statute, O.C.G.A. § 9-12-60(a) , did not apply to child support orders entered after July 1, 1997, such as the one involved in the case. Wynn v. Craven, 301 Ga. 30 , 799 S.E.2d 172 , 2017 Ga. LEXIS 240 (2017).

Seven-year bar for implied trusts. —

Although there is no statute fixing seven years as bar in cases of implied trusts, the court has held by analogy that the period of seven years will apply in such cases. Eller v. McMillan, 174 Ga. 729 , 163 S.E. 910 , 1932 Ga. LEXIS 126 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. —

27A Am. Jur. 2d, Equity, § 260. 51 Am. Jur. 2d, Limitation of Actions, §§ 7, 8, 90 et seq.

C.J.S. —

30A C.J.S., Equity, § 128. 54 C.J.S., Limitation of Actions, § 107 et seq.

ALR. —

Laches: waiver or estoppel on part of government respecting obstruction to navigation, 2 A.L.R. 1694 .

Laches as preventing recovery of property diverted from one religious sect or denomination to another, 18 A.L.R. 692 .

Estoppel by delay, after knowledge, in disclosing forgery of commercial paper, 25 A.L.R. 177 ; 50 A.L.R. 1374 .

Check in payment of interest or installment of principal as tolling statute of limitations, 28 A.L.R. 84 ; 125 A.L.R. 271 .

Lapse of time as affecting rights and remedies of parties to absolute deed intended as mortgage, 28 A.L.R. 554 .

Institution of suit as relieving one of charge of laches precluding relief in equity, 43 A.L.R. 921 .

Effect of recovery of judgment on unfiled or abandoned claim after expiration of time allowed for filing claim against estate, 60 A.L.R. 736 .

Laches of stockholders in attacking sale of corporate assets, 70 A.L.R. 53 .

Estoppel against defense of limitation in tort actions, 77 A.L.R. 1044 .

Waiver of, or estoppel to assert, debtor’s exemption, by laches or delay, 82 A.L.R. 648 .

Right to equitable relief from usury as affected by laches, 111 A.L.R. 126 .

Applicability of statute of limitations or doctrine of laches as between husband and wife, 121 A.L.R. 1382 .

Estoppel to rely on statute of limitations, 130 A.L.R. 8 ; 24 A.L.R.2d 1413.

Statute of limitations or doctrine of laches in relation to declaratory actions, 151 A.L.R. 1076 .

Mandamus as subject to statute of limitations, 155 A.L.R. 1144 .

Applicability of statute of nonclaim or limitation statute as between surviving partner and estate of deceased partner, 157 A.L.R. 1114 .

State statute of limitations as applicable in equity suits in federal court to enforce a federally created right, 162 A.L.R. 724 .

Pleading laches, 173 A.L.R. 326 .

Delay in bringing suit as affecting right to divorce, 4 A.L.R.2d 1321.

Delay of stockholders in exercising their right to convert their stock into other class of stock or corporate obligation, 10 A.L.R.2d 587.

Delay as defense to action for accounting between joint adventurers, 13 A.L.R.2d 765.

Laches as precluding cancellation of or other relief against release for personal injuries, 34 A.L.R.2d 1314.

When statute of limitations starts to run against enforcement of constructive trust, 55 A.L.R.2d 220.

Right to attack validity of statute, ordinance, or regulation relating to occupational or professional license as affected by applying for, or securing license, 65 A.L.R.2d 660.

What constitutes laches barring right to relief in taxpayer’s action, 71 A.L.R.2d 529.

When statute of limitations or laches commences to run against action to set aside fraudulent conveyance or transfer in fraud of creditors, 100 A.L.R.2d 1094.

Delay in asserting contractual right to arbitration as precluding enforcement thereof, 25 A.L.R.3d 1171.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

Agreement of parties as estopping reliance on statute of limitations, 43 A.L.R.3d 756.

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.

Estoppel or laches precluding lawful spouse from asserting rights of decedent’s estate as against putative spouse, 81 A.L.R.3d 110.

Attorneys at law: delay in prosecution of disciplinary proceeding as defense or mitigating circumstance, 93 A.L.R.3d 1057.

Insurer’s waiver of defense of statute of limitations, 104 A.L.R.5th 331.

Estoppel of insurer to assert statute-of-limitations defense — Homeowners’ insurers, 4 A.L.R.6th 509.

Proof of foreign official record under Rule 44(a)(2) of Federal Rules of Civil Procedure, 41 A.L.R. Fed. 784.

9-3-4. Limitations as to trusts.

Reserved. Repealed by Ga. L. 1991, p. 810, § 3, effective July 1, 1991.

Editor’s notes.

This Code section was based on Orig. Code 1863, § 3128; Code 1868, § 3140; Code 1873, § 3196; Code 1882, § 3196; Civil Code 1895, § 3198; Civil Code 1910, § 3782; Code 1933, § 3-713.

9-3-5. Beneficiaries barred along with trustee.

Where a trustee is barred, the beneficiaries of the estate represented by him shall also be barred.

History. Civil Code 1895, § 3773; Civil Code 1910, § 4367; Code 1933, § 3-710.

History of Code section. —

This Code section is derived from the decision in Salter v. Salter, 80 Ga. 178 , 4 S.E. 391 (1887).

JUDICIAL DECISIONS

Beneficiaries barred by trustee’s nonaction. —

Under this section, cestuis que trustent are barred by nonaction of trustee, where legal title is vested in the trustee. Clark v. Flannery & Co., 99 Ga. 239 , 25 S.E. 312 , 1896 Ga. LEXIS 321 (1896); Miller v. Butler, 121 Ga. 758 , 49 S.E. 724 (1905).

Minority of cestui que trust is immaterial. Pendergrast v. Foley, 8 Ga. 1 , 1850 Ga. LEXIS 1 (1850).

Beneficiaries of homestead estate are barred by this section when head of family is barred. Taylor v. James, 109 Ga. 327 , 34 S.E. 674 , 1899 Ga. LEXIS 646 (1899).

RESEARCH REFERENCES

Am. Jur. 2d. —

51 Am. Jur. 2d, Limitation of Actions, §§ 75, 76. 76 Am. Jur. 2d, Trusts, § 530.

C.J.S. —

54 C.J.S., Limitations of Actions, §§ 108, 221 et seq., 382.

ALR. —

Scope and application of exception, as regards causes of action cognizable at law, to general rule exempting express trusts from operation of statute of limitations, 122 A.L.R. 286 .

Pledge as a trust as regards statute of limitations, 139 A.L.R. 1333 .

Attorney as trustee for purpose of running of statute of limitations against claim for money or property received or collected by him, 151 A.L.R. 1388 .

When statute of limitations starts to run against enforcement of resulting trust, 45 A.L.R.2d 382.

9-3-6. Applicability of limitations to setoffs.

The statute of limitations applies to the subject matter of setoff as well as to the plaintiff’s demand.

History. Orig. Code 1863, § 3399; Code 1868, § 3418; Code 1873, § 3470; Code 1882, § 3470; Civil Code 1895, § 5089; Civil Code 1910, § 5673; Code 1933, § 3-708.

Law reviews.

For comment, “Antenuptial Agreements and Divorce in Georgia: Scherer v. Scherer,” see 17 Ga. L. Rev. 231 (1982).

JUDICIAL DECISIONS

This section prevents setoff of demands barred by statute of limitations. Lee v. Lee, 31 Ga. 26 , 1860 Ga. LEXIS 292 (1860).

Application to counties. —

This section applied to counties. MacNeill v. McElroy, 193 Ga. 55 , 17 S.E.2d 169 , 1941 Ga. LEXIS 582 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. —

51 Am. Jur. 2d, Limitation of Actions, § 124 et seq.

ALR. —

Claim of government against taxpayer which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 109 A.L.R. 1354 ; 130 A.L.R. 838 ; 154 A.L.R. 1052 ; 12 A.L.R.2d 815.

Claim barred by limitation as subject of setoff, counterclaim, recoupment, cross bill, or cross action, 1 A.L.R.2d 630.

Personal representative’s right of retainer or setoff, against debtor’s distributive share of estate, of debt barred by statute of limitations, 39 A.L.R.2d 675.

When statute of limitations begins to run against action to recover money paid by mistake, 79 A.L.R.3d 754.

9-3-7. When mutual accounts postpone running of limitations.

The statute of limitations for a mutual account begins to run on the date of the last item thereof. A mutual account must include an indebtedness on both sides. Mere entries of credits of partial payments shall not be sufficient.

History. Civil Code 1895, § 3769; Civil Code 1910, § 4363; Code 1933, § 3-707.

History of Code section. —

This Code section is derived from the decision in Lark v. Cheatham, 80 Ga. 1 , 5 S.E. 290 (1888).

JUDICIAL DECISIONS

“Mutual account” defined. —

Mutual account is one based on course of dealing wherein each party has given credit to the other, on faith of indebtedness to that party. Gunn v. Gunn, 74 Ga. 555 , 1885 Ga. LEXIS 361 (1885); Reid v. Wilson Bros., 109 Ga. 424 , 34 S.E. 608 , 1899 Ga. LEXIS 670 (1899); Howard v. Blanchard, 29 Ga. App. 469 , 116 S.E. 33 , 1923 Ga. App. LEXIS 72 (1923); Turner v. Davidson, 188 Ga. 736 , 4 S.E.2d 814 , 1939 Ga. LEXIS 618 (1939).

Basis for doctrine of mutual accounts. —

Mutual accounts are based upon express or implied agreement of parties. Gunn v. Gunn, 74 Ga. 555 , 1885 Ga. LEXIS 361 (1885); Mobley, Ward & Davis v. Pendergrast, 8 Ga. App. 565 , 70 S.E. 18 , 1911 Ga. App. LEXIS 53 (1911).

Doctrine of mutual account rests not on notion that every credit in favor of one party is admission by that party of indebtedness to the other or new promise to pay, but upon mutual understanding, either express or implied from conduct of both parties, that they will continue to credit each other until one or both parties desire to terminate course of confidential dealing, at which time the balance will be ascertained, become due, and be paid by the one finally indebted. Turner v. Davidson, 188 Ga. 736 , 4 S.E.2d 814 , 1939 Ga. LEXIS 618 (1939).

For mutual account to exist, there must be reciprocal extension of credit between the parties, so that each becomes both creditor and debtor of the other. Perry v. Laurens Hdwe. Co., 93 Ga. App. 251 , 91 S.E.2d 375 , 1956 Ga. App. LEXIS 707 (1956).

In order to make a mutual account, there must be indebtedness on both sides; and in the absence of evidence of such mutual dealings and indebtedness, mere entries of credits of partial payments made on a debt evidenced by open account will not make it such a mutual account as will prevent the statute of limitations from beginning to run until the date of the last item thereof. Vanguard Ins. Agency & Real Estate Co. v. Walker, 157 Ga. App. 838 , 278 S.E.2d 723 , 1981 Ga. App. LEXIS 2028 (1981).

Entry of partial payments is immaterial. Liseur v. Hitson, 95 Ga. 527 , 20 S.E. 498 , 1894 Ga. LEXIS 577 (1894).

Mere entries of credits of partial payments made on debt evidenced by open account will not make it such a mutual account as will prevent statute of limitations from beginning to run until date of last item thereof. Williams v. Leide Assocs., 133 Ga. App. 454 , 211 S.E.2d 407 , 1974 Ga. App. LEXIS 1110 (1974).

If items in favor of one side are mere payments on indebtedness to the other, the account is not mutual. Turner v. Davidson, 188 Ga. 736 , 4 S.E.2d 814 , 1939 Ga. LEXIS 618 (1939).

Presumption of law exists that agreement once proved continues. Gunn v. Gunn, 74 Ga. 555 , 1885 Ga. LEXIS 361 (1885).

Whether or not account is mutual is question of fact. Turner v. Davidson, 188 Ga. 736 , 4 S.E.2d 814 , 1939 Ga. LEXIS 618 (1939).

Jury is to decide question of whether account is mutual or not. Kirven & Co. v. Thornton, 110 Ga. 276 , 34 S.E. 848 , 1899 Ga. LEXIS 545 (1899).

Statute of limitations begins to run with respect to mutual accounts from date of last item embraced within mutual dealings. Turner v. Davidson, 188 Ga. 736 , 4 S.E.2d 814 , 1939 Ga. LEXIS 618 (1939).

Mutual claims between shareholders and former partners. —

Any mutual claims in general accounting between shareholders and former partners in corporation formed from partnership, for indebtedness existing between partner and corporation, would not be barred by the running of the statute. Jones v. J.S.H. Co., 199 Ga. 755 , 35 S.E.2d 288 , 1945 Ga. LEXIS 368 (1945).

Return of refrigerator was not transaction in which buyer extended credit to seller, absent indication that buyer did not receive credit for value of refrigerator immediately upon its return. Perry v. Laurens Hdwe. Co., 93 Ga. App. 251 , 91 S.E.2d 375 , 1956 Ga. App. LEXIS 707 (1956).

Setoff of barred account against promissory note given in such dealings will not be permitted. Adams v. Holland, 101 Ga. 43 , 28 S.E. 434 , 1897 Ga. LEXIS 152 (1897).

RESEARCH REFERENCES

Am. Jur. 2d. —

1 Am. Jur. 2d, Accounts and Accounting, § 23. 51 Am. Jur. 2d, Limitation of Actions, § 207.

C.J.S. —

54 C.J.S., Limitation of Actions, §§ 9, 178.

ALR. —

Limitation of actions: acknowledgment, new promise, or payment by grantee of mortgaged premises, 18 A.L.R. 1027 ; 142 A.L.R. 615 .

Check in payment of interest or installment of principal as tolling statute of limitations, 28 A.L.R. 84 ; 125 A.L.R. 271 .

Payment on account as removing or tolling statute of limitation, 36 A.L.R. 346 ; 156 A.L.R. 1082 .

What constitutes an open, current account within the statute of limitations, 39 A.L.R. 369 ; 57 A.L.R. 201 .

Bar of statute of limitations against action to recover principal of obligation as affecting right to recover interest, 115 A.L.R. 728 .

Ratification of unauthorized credit on debt or obligation as tolling, or removing bar of, statute of limitations, 124 A.L.R. 234 .

When is account “mutual” for purposes of rule that limitations run from last item in open, current, and mutual account, 45 A.L.R.3d 446.

Article 2 Specific Periods of Limitation

Cross references.

Time limitation on bringing of actions against counties, § 36-11-1 .

Time limitation on actions on bonds given by person handling public funds, § 45-8-9 .

Time limitation on bringing of actions against railroad companies for recovery of damages for any wrong or injury inflicted by such companies, § 46-1-2 .

Time limitation on bringing of product liability actions, § 51-1-11 .

JUDICIAL DECISIONS

Effect of commencement and service of process statutes. —

By holding that service of process does not relate back to toll statutes of limitations unless the plaintiff has acted diligently, the Georgia courts have interpreted O.C.G.A. §§ 9-11-3 and 9-11-4 as integral parts of the state statutes of limitations. Cambridge Mut. Fire Ins. Co. v. City of Claxton, 720 F.2d 1230, 1983 U.S. App. LEXIS 14793 (11th Cir. 1983).

RESEARCH REFERENCES

ALR. —

Statute of limitations as applied to certificate of deposit, 23 A.L.R. 7 ; 128 A.L.R. 157 .

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, 23 A.L.R. 97 ; 149 A.L.R. 483 .

Limitation of actions: availability of statute, and time when it begins to run, where one assumes and agrees to pay another’s debt, 31 A.L.R. 1056 .

When statute of limitations begins to run against action to recover interest, 36 A.L.R. 1085 .

When limitation begins to run against action to enforce stockholder’s superadded liability, 55 A.L.R. 1068 ; 137 A.L.R. 788 .

When limitation commences to run against action to enforce personal liability of bank officers or directors for receiving deposits after knowledge of bank’s unsafe condition, 78 A.L.R. 897 .

When statute of limitations begins to run against action to recover upon contract payable in installments, 82 A.L.R. 316 .

Liability insurance: limitation of time within which to sue insurer, 83 A.L.R. 748 .

Rendition of bank of statement of balance to depositor’s credit as starting statute of limitations in respect of amount claimed in excess of balance shown, 87 A.L.R. 344 .

When does statute of limitations commence to run against action for breach of covenant against encumbrances, 99 A.L.R. 1050 .

When cause of action between master and servant deemed to be upon a liability created by statute within contemplation of statute of limitations, 104 A.L.R. 462 .

When does limitation or laches commence to run against suit to reform an instrument, 106 A.L.R. 1338 .

When statute of limitation commences to run against an action based on breach of duty by recording officer, 110 A.L.R. 1067 .

Action by one not in possession of land to cancel deed upon ground of fraud as within statute of limitations applicable to actions for relief upon ground of fraud, or statute relating to actions for recovery of real property, 118 A.L.R. 199 .

Statute of limitation applicable to action to enforce superadded statutory liability of stockholder of bank or other corporation, in absence of limitation provision specifically applicable to such action, 126 A.L.R. 264 .

Statute of limitation applicable to suit by creditor to set aside transfers of debtor’s property, 128 A.L.R. 1289 .

Necessity of introducing evidence dehors written contract as affecting question as to which statute of limitations applies, 129 A.L.R. 603 .

Commencement of running of statute of limitations against option or right in nature of option exercisable on demand, 132 A.L.R. 429 .

Statute of limitations in respect of action or proceeding to establish right to, or recovery of benefits of, pension, 136 A.L.R. 809 .

Statute of limitations as affecting suit to enforce mortgage or lien securing debt payable in installments, 153 A.L.R. 785 .

Constitutionality, construction, and application of statutes affecting the rights or remedies of purchasers under antecedent executory contracts for purchase of real property, 153 A.L.R. 1209 .

Application of limitation statutes to nonderivative suits based upon wrongs of corporate officers or directors, 174 A.L.R. 1217 .

What statute of limitations governs action to reform instrument, 36 A.L.R.2d 687.

What statute of limitations governs action or claim for affirmative relief against usurious obligation or to recover usurious payment, 48 A.L.R.2d 401.

What statute of limitations applies to action under dramshop or civil damage act, 55 A.L.R.2d 1286.

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.

Limitation of action: physician’s claim for compensation for medical services or treatment, 99 A.L.R.2d 251.

What statute of limitations governs action by contractee for defective or improper performance of work by private building contractor, 1 A.L.R.3d 914.

Validity of contractual time period, shorter than statute of limitations, for bringing action, 6 A.L.R.3d 1197.

Application of statute of limitations to damage actions against public accountants for negligence in performance of professional services, 26 A.L.R.3d 1438.

What statute of limitations covers action for indemnity, 57 A.L.R.3d 833.

What statute of limitations governs action for interference with contract or other economic relations, 58 A.L.R.3d 1027.

What statute of limitations applies to action for surplus of proceeds for sale of collateral, 59 A.L.R.3d 1205.

When statute of limitations begins to run against action to recover money paid by mistake, 79 A.L.R.3d 754.

What statute of limitations governs damage action against attorney for malpractice, 2 A.L.R.4th 284.

Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.

Application of statute of limitations to actions for breach of duty in performing services of public accountant, 7 A.L.R.5th 852.

Application of statute of limitations in private tort actions based on injury to persons or property caused by underground flow of contaminants, 11 A.L.R.5th 438.

Emotional or psychological “blocking” or repression as tolling running of statute of limitations, 11 A.L.R.5th 588.

What statute of limitations applies to state law action by public sector employee for breach of union’s duty of fair representation, 12 A.L.R.5th 950.

Causes of action governed by limitations period in UCC § 2-725, 49 A.L.R.5th 1.

9-3-20. Actions on foreign judgments.

All actions upon judgments obtained outside this state, except judgments for child support or spousal support, or both, shall be brought within five years after such judgments have been obtained.

History. Laws 1805, Cobb’s 1851 Digest, p. 564; Ga. L. 1855-56, p. 233, § 7; Code 1863, § 2854; Code 1868, § 2862; Code 1873, § 2913; Code 1882, § 2913; Civil Code 1895, § 3760; Civil Code 1910, § 4354; Code 1933, § 3-701; Ga. L. 1997, p. 1613, § 1.

Law reviews.

For annual survey on law of domestic relations, see 42 Mercer L. Rev. 201 (1990).

For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 121 (1997).

JUDICIAL DECISIONS

Full faith and credit is not denied foreign judgments by this section. Watkins v. Conway, 221 Ga. 374 , 144 S.E.2d 721 , 1965 Ga. LEXIS 466 (1965), aff'd, 385 U.S. 188, 87 S. Ct. 357 , 17 L. Ed. 2 d 286, 1966 U.S. LEXIS 76 (1966).

This section does not discriminate against foreign judgments, but focuses on law of the foreign state. Watkins v. Conway, 385 U.S. 188, 87 S. Ct. 357 , 17 L. Ed. 2 d 286, 1966 U.S. LEXIS 76 (1966).

This section applies to judgments rendered in favor of sister state. Tennessee v. Virgin, 36 Ga. 388 , 1867 Ga. LEXIS 51 (1867).

Limitation runs from rendition of foreign judgment, so long as judgment is not dormant under laws of sister state. Frank v. Wolf, 17 Ga. App. 468 , 87 S.E. 697 , 1916 Ga. App. LEXIS 698 (1916).

Trial court properly found that an action to enforce a Florida judgment entered against a judgment debtor was time-barred under Georgia law, granting the judgment debtor’s motion to stay enforcement of said judgment, as the statute of limitations on enforcement of the Florida judgment had run under the law of Georgia, the receiving state, when viewed from the date of rendition of the judgment in the State of Florida, the state in which the judgment originated; moreover, to run the Georgia time limitation from the date of the filing of the judgment rather than from the date of rendition of the judgment would be contrary to the language of the Uniform Enforcement of Foreign Judgments Law, O.C.G.A. § 9-12-130 et seq., and of Georgia’s dormancy-of-judgment and judgment-renewal statutes, O.C.G.A. §§ 9-12-60 and 9-12-61 . Corzo Trucking Corp. v. West, 281 Ga. App. 361 , 636 S.E.2d 39 , 2006 Ga. App. LEXIS 991 (2006).

Limitation runs from time of revival of foreign judgment. Fegan v. Bently, 32 Ga. 534 , 1861 Ga. LEXIS 227 (1861).

Statute commences to run from point in time when judgment was revived and not from time when judgment was first obtained when judgment was revived according to statute law of state in which it was rendered. Baty v. Holston, 108 Ga. App. 359 , 133 S.E.2d 107 , 1963 Ga. App. LEXIS 642 (1963).

Section is not bar to action on revived judgment from another state unless five years have elapsed since revival. Baty v. Holston, 108 Ga. App. 359 , 133 S.E.2d 107 , 1963 Ga. App. LEXIS 642 (1963).

Actions on foreign judgments are barred by this section only if plaintiff cannot revive judgment in state where it was originally obtained. Watkins v. Conway, 385 U.S. 188, 87 S. Ct. 357 , 17 L. Ed. 2 d 286, 1966 U.S. LEXIS 76 (1966).

Filing foreign judgment under uniform law not barred. —

O.C.G.A. § 9-3-20 does not bar the filing and enforcement of a properly authenticated foreign judgment under the Uniform Enforcement of Foreign Judgments Law, O.C.G.A. § 9-12-30 et seq. Wright v. Trust Co. Bank, 219 Ga. App. 551 , 466 S.E.2d 74 , 1995 Ga. App. LEXIS 1090 (1995).

Grant of a stay of a filed foreign judgment was erroneous because under O.C.G.A. § 9-12-134(b) a judgment rendered by a court in Georgia is not subject to the limitation period imposed on foreign judgments by O.C.G.A. § 9-3-20 ; rather, judgments filed under the Uniform Law are subject to a stay of execution if they are dormant under O.C.G.A. § 9-12-60(a) . Aetna Ins. Co. v. Williams, 237 Ga. App. 881 , 517 S.E.2d 109 , 1999 Ga. App. LEXIS 687 (1999), cert. denied, No. S99C1259, 1999 Ga. LEXIS 752 (Ga. Sept. 17, 1999).

Installment payments of alimony. —

Under Alabama chancery decree awarding alimony to be paid in monthly installments, plaintiff was not barred until five years after failure of the defendant to abide by decree, even though the judgment was barred. Heakes v. Heakes, 157 Ga. 863 , 122 S.E. 777 , 1924 Ga. LEXIS 266 (1924).

This section does not begin to run against installment payments of alimony provided for in foreign judgment until maturity and failure to pay them pursuant to requirements of judgment. McLendon v. McLendon, 66 Ga. App. 156 , 17 S.E.2d 252 , 1941 Ga. App. LEXIS 161 (1941); Albert v. Albert, 86 Ga. App. 560 , 71 S.E.2d 904 , 1952 Ga. App. LEXIS 1009 (1952); Levine v. Seley, 217 Ga. 384 , 123 S.E.2d 1 , 1961 Ga. LEXIS 465 (1961).

In action to enforce payment of past due installments of monthly alimony provided for in foreign judgment, recovery may be had for all matured and unpaid installments within period of five years before date of bringing action. McLendon v. McLendon, 66 Ga. App. 156 , 17 S.E.2d 252 , 1941 Ga. App. LEXIS 161 (1941).

Since right to sue on alimony judgment is vested in parent and not children, five-year limitation period for bringing action on such foreign alimony judgment by plaintiff parent is not tolled because of minority of the children. Levine v. Seley, 217 Ga. 384 , 123 S.E.2d 1 , 1961 Ga. LEXIS 465 (1961).

Section does not provide statute of limitation defense to action for child support arrearages under foreign state judgment. —

When plaintiff-wife and defendant-husband were divorced in Ohio in 1974, and in 1985 plaintiff instituted an action pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), against defendant, seeking to recover arrearages in child support awarded by the Ohio judgment, and defendant moved to dismiss the URESA petition, insofar as it sought a recovery of child support arrearages which had accrued more than five years prior to the initiation of the action, the trial court correctly denied the defendant’s motion to dismiss and entered judgment against the defendant for all accrued arrearages, since O.C.G.A. § 9-3-20 does not providethe defendant with a statute of limitation defense to this URESA action for child support arrearages under the Ohio judgment. Brookins v. Brookins, 190 Ga. App. 852 , 380 S.E.2d 494 , 1989 Ga. App. LEXIS 439 (1989).

O.C.G.A. §§ 9-3-20 and 9-12-60(a)(1) did not apply to a Uniform Reciprocal Enforcement of Support Act action to enforce arrearages on a foreign child support order. Georgia Dep't of Human Resources v. Deason, 238 Ga. App. 853 , 520 S.E.2d 712 , 1999 Ga. App. LEXIS 967 (1999).

Divorce decree. —

Where an action to domesticate a Pennsylvania divorce decree was barred by the five-year statute of limitations in Georgia and, further, there was no authority for a Georgia court to “correct” a domesticated judgment of another state, denial of a summary judgment in favor of a former wife as to her claim for domestication and correction of the decree was proper. Eickhoff v. Eickhoff, 263 Ga. 498 , 435 S.E.2d 914 , 1993 Ga. LEXIS 713 (1993), overruled, Lee v. Green Land Co., 272 Ga. 107 , 527 S.E.2d 204 , 2000 Ga. LEXIS 128 (2000).

Enforcement of foreign judgment barred. —

When a judgment creditor sought to domesticate a foreign judgment, but did not notify the trial court of the creditor’s intent to rely on the Uniform Enforcement of Foreign Judgments Law, O.C.G.A. § 9-12-130 et seq., it was an action to enforce a judgment which was barred because it was filed more than five years after the judgment was entered. Williams v. American Credit Servs., Inc., 229 Ga. App. 801 , 495 S.E.2d 121 , 1997 Ga. App. LEXIS 1512 (1997).

Judgments from an in-state federal court are not subject to the statute. —

Judgments from federal courts within the state are judgments obtained within the state and are not included in the definition of a foreign judgment that would require domestication before obtaining lien priority. Tunnelite, Inc. v. Estate of Sims, 266 Ga. App. 476 , 597 S.E.2d 555 , 2004 Ga. App. LEXIS 412 (2004), cert. denied, No. S04C1322, 2004 Ga. LEXIS 760 (Ga. Sept. 7, 2004).

RESEARCH REFERENCES

Am. Jur. 2d. —

47 Am. Jur. 2d, Judgments, §§ 770, 788 et seq., 798, 801, 803. 51 Am. Jur. 2d, Limitation of Actions, §§ 95, 96.

C.J.S. —

50 C.J.S., Judgments, § 965 et seq. 54 C.J.S., Limitation of Actions, §§ 298, 396.

ALR. —

Foreign judgment based upon or which fails to give effect to a judgment previously rendered at the forum or in the third jurisdiction, 44 A.L.R. 457 ; 53 A.L.R. 1146 .

Statute of limitation applicable to interest on judgment, 120 A.L.R. 719 .

Conflict of laws as to time limitations governing action on foreign judgment, 36 A.L.R.2d 567.

Causes of action governed by limitations period in UCC § 2-725, 49 A.L.R.5th 1.

Proof of foreign official record under Rule 44(a)(2) of Federal Rules of Civil Procedure, 41 A.L.R. Fed. 784.

9-3-21. Proceedings to set aside judgments.

Reserved. Repealed by Ga. L. 1986, p. 294, § 2, effective July 1, 1986.

Editor’s notes.

This Code section was based on Ga. L. 1876, p. 100, § 1; Code 1882, § 2914a; Civil Code 1895, § 3764; Civil Code 1910, § 4358; Code 1933, § 3-702.

9-3-22. Enforcement of rights under statutes, acts of incorporation; recovery of wages, overtime, and damages.

All actions for the enforcement of rights accruing to individuals under statutes or acts of incorporation or by operation of law shall be brought within 20 years after the right of action has accrued; provided, however, that all actions for the recovery of wages, overtime, or damages and penalties accruing under laws respecting the payment of wages and overtime shall be brought within two years after the right of action has accrued.

History. Ga. L. 1855-56, p. 233, § 12; Code 1863, § 2857; Code 1868, § 2865; Code 1873, § 2916; Code 1882, § 2916; Civil Code 1895, § 3766; Civil Code 1910, § 4360; Code 1933, § 3-704; Ga. L. 1943, p. 333, § 1.

Cross references.

Time limitation on bringing of action by employee to recover difference between wages actually paid and state minimum wage, § 34-4-6 .

Time limitation on action to recover wages not paid as result of sex discrimination, § 34-5-5 .

Law reviews.

For article, “Some Rescission Problems in Truth-In-Lending, as Viewed From Georgia,” see 7 Ga. St. B.J. 315 (1971).

For article surveying local government law in 1984-85, see 37 Mercer L. Rev. 313 (1985).

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 labor and employment law, see 57 Mercer L. Rev. 251 (2005).

JUDICIAL DECISIONS

Analysis

General Consideration

Purpose of section. —

Evident purpose of this section is to fix a period of limitation for special cases not provided for by general statute of limitations or otherwise, when rights accruing to “individuals” are sought to be enforced. McDaniel v. Kelley, 61 Ga. App. 105 , 5 S.E.2d 672 , 1939 Ga. App. LEXIS 229 (1939).

Legislative intent. —

Before enactment of Ga. L. 1855-56, p. 233, § 12, from which this section was codified, there was of force in this state no statute prescribing a limitation as is fixed by the enactment; hence, the legislature enacted a plain and unambiguous statement of the law, which was intended to relieve the feeling of uncertainty and doubt theretofore existing. Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 , 1943 Ga. LEXIS 355 (1943).

This section provides omnibus time provision for all statutorily created remedies which do not themselves specify an applicable limitation period. McNeal v. Paine, Webber, Jackson & Curtis, Inc., 598 F.2d 888, 1979 U.S. App. LEXIS 13305 (5th Cir. 1979).

Meaning of “actions”. —

Word “suits” (now “actions”), as used in this section, is general term denoting any legal proceeding in court. Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 , 1943 Ga. LEXIS 355 (1943).

Rights must arise under legislative enactment. —

The 20-year statute of limitation of this section has reference only to rights which arise under legislative enactment, and which would not exist except for some Act of the legislature. Williams v. Clemons, 178 Ga. 619 , 173 S.E. 718 , 1934 Ga. LEXIS 116 (1934); Houston v. Doe, 136 Ga. App. 583 , 222 S.E.2d 131 , 1975 Ga. App. LEXIS 1427 (1975); McMillian v. City of Rockmart, 653 F.2d 907, 1981 U.S. App. LEXIS 18720 (5th Cir. 1981).

This section applies to cases in which a special liability is created by a special charter or statute. Williams v. Clemons, 178 Ga. 619 , 173 S.E. 718 , 1934 Ga. LEXIS 116 (1934).

Rights do not arise by contract. —

Statutory liability is one that depends for its existence and creation upon special enactment of a statute and not upon contract of the parties on which an additional remedy by statute is given. Pare v. Mahone, 32 Ga. 253 , 1861 Ga. LEXIS 169 (1861); Savannah & Ogeechee Canal Co. v. Shuman, 98 Ga. 171 , 25 S.E. 415 , 1896 Ga. LEXIS 2 (1896); Peavy v. Turner, 107 Ga. 401 , 33 S.E. 409 , 1899 Ga. LEXIS 83 (1899); Wimbush v. Curry, 8 Ga. App. 223 , 68 S.E. 951 , 1910 Ga. App. LEXIS 113 (1910); McDaniel v. Kelley, 61 Ga. App. 105 , 5 S.E.2d 672 , 1939 Ga. App. LEXIS 229 (1939).

Right arising under statute, in contemplation of this section, must arise in virtue of provisions of the statute and not in virtue of contract between the parties. Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 , 1943 Ga. LEXIS 355 (1943).

Right must be conferred on specified individuals or class. —

Limitation of this section was enacted for rights of action given to individuals by special legislative Acts, such as statute of incorporation. Hendryx v. E.C. Atkins & Co., 79 F.2d 508, 1935 U.S. App. LEXIS 4168 (5th Cir. 1935).

This section refers to statutes that confer rights upon specified individuals or designated class of individuals and not upon general public as a whole. Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 , 1943 Ga. LEXIS 355 (1943).

Every statute specifically conferring rights upon individual or class to which individual belongs is embraced in this section. Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 , 1943 Ga. LEXIS 355 (1943).

Statute involved must be special enactment which creates liability in favor of particular individuals for 20-year limitation period to apply. Dudley v. Southeastern Factor & Fin. Corp., 57 F.R.D. 177, 1972 U.S. Dist. LEXIS 10998 (N.D. Ga. 1972).

This section is not applicable to rights conferred by law upon members of public at large, and as such, 20-year limitation period provided by this section has no application. Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494, 1974 U.S. Dist. LEXIS 6564 (S.D. Ga. 1974).

This section applies only to rights of action given to individuals by special legislative Acts and is not applicable in cases when a wrong against the public must first be done before a person can be injured. Greene v. Lam Amusement Co., 145 F. Supp. 346, 1956 U.S. Dist. LEXIS 2602 (D. Ga. 1956); McMillian v. City of Rockmart, 653 F.2d 907, 1981 U.S. App. LEXIS 18720 (5th Cir. 1981).

In order to bring case within 20-year limitation period provided by this section, the liability must be one expressly created in favor of individual or class to which plaintiff belongs, as distinguished from one arising under general law in favor of all persons who might be injured. Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494, 1974 U.S. Dist. LEXIS 6564 (S.D. Ga. 1974).

Rights of action within this section are those given to individuals by special legislative Acts, such as a statute of incorporation, but not actions based upon invasion of plaintiff’s personal rights, which are common with all other persons, when as part of the public the plaintiff has right of action for injuries sustained. Service Stages, Inc. v. Greyhound Corp., 170 F. Supp. 482, 1959 U.S. Dist. LEXIS 3741 (D. Ga.), aff'd, 268 F.2d 739, 1959 U.S. App. LEXIS 5337 (5th Cir. 1959).

Assignee’s recovery of collateral under a life insurance policy. —

Bank was properly granted summary judgment in an interpleader action involving competing claims between the bank and a widow to the proceeds of a life insurance policy as the decedent, the widow’s spouse, had assigned the policy to the bank as collateral for a loan in 1977 and, despite having had the debt discharged in bankruptcy, the bank was not precluded to recover the bank’s collateral. Further, the bank’s right to recover did not accrue until the decedent’s death; therefore, the statutes of limitation had not expired. Miller v. Branch Banking & Trust Co., 292 Ga. App. 189 , 663 S.E.2d 756 , 2008 Ga. App. LEXIS 659 (2008).

Rights Under Statutes

Not applicable to migrant workers’ breach of contract claims. —

Contrary to the employers’ argument, the state law breach of contract claims of guest workers from Mexico arising prior to July 11, 2003, were not barred by the two-year statute of limitations in O.C.G.A. § 9-3-22 because 20 C.F.R. § 655.102(b)(14) specified that the workers held contract claims for underpayment, the six-year statute of limitations in O.C.G.A. § 9-3-24 applied; the workers’ state law breach of contract claims were filed on July 11, 2005, easily within six years of the dates the claims accrued, and so the claims were timely filed under O.C.G.A. § 9-3-24 , and were not subject to dismissal on statute of limitations grounds. Morales-Arcadio v. Shannon Produce Farms, Inc., No. 605CV062, 2006 U.S. Dist. LEXIS 3159 (S.D. Ga. Jan. 12, 2006).

Statutory liability or penalty. —

The 20-year statute of limitation is clearly applicable to a statutory liability or penalty. Bankers Fid. Life Ins. Co. v. Oliver, 106 Ga. App. 305 , 126 S.E.2d 887 , 1962 Ga. App. LEXIS 1073 (1962).

When action was brought on independent statutory remedy afforded by Ga. L. 1976, p. 1564, § 1 (see now O.C.G.A. § 33-22-14(a) ), relating to return of unearned insurance premiums, predicated on statutory obligation contained therein, and the statutory remedy was not a codification of a remedy existing at common law but was one arising solely from statute, former Code 1933, § 3-704 (see now O.C.G.A. § 9-3-22 ) applied. Perry & Co. v. Knight Ins. Underwriters, Inc., 149 Ga. App. 128 , 253 S.E.2d 808 , 1979 Ga. App. LEXIS 1752 (1979).

Claim by retired fireman for payment of monthly pension, being for a liability fixed by statute, was one to which the 20-year period of limitation applies. Pierce v. Rhodes, 208 Ga. 554 , 67 S.E.2d 771 , 1951 Ga. LEXIS 433 (1951).

Collection of back taxes. —

Former Civil Code 1895, § 3766 (see now O.C.G.A. § 9-3-22 ) made applicable to action by state to collect back taxes by former Civil Code 1895, § 3777 (see now O.C.G.A. § 9-3-1 ). Georgia R.R. & Banking v. Wright, 124 Ga. 596 , 53 S.E. 251 , 1906 Ga. LEXIS 565 (1906), rev'd, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 , 1907 U.S. LEXIS 1209 (1907).

Contribution actions. —

The 20-year statute of limitations for contribution actions is governed by O.C.G.A. § 9-3-22 . Krasaeath v. Parker, 212 Ga. App. 525 , 441 S.E.2d 868 , 1994 Ga. App. LEXIS 287 (1994), cert. denied, No. S94C1072, 1994 Ga. LEXIS 705 (Ga. May 13, 1994).

Claim for contribution maintainable under a 20-year statute of limitations, based on an earlier medical malpractice action and alleging that x-ray studies were negligently interpreted by the defendant radiologist, was barred by the five-year statute of repose for medical malpractice cases. Krasaeath v. Parker, 212 Ga. App. 525 , 441 S.E.2d 868 , 1994 Ga. App. LEXIS 287 (1994), cert. denied, No. S94C1072, 1994 Ga. LEXIS 705 (Ga. May 13, 1994).

Actions for contribution and indemnity are governed by the 20-year statute of limitations contained in O.C.G.A. § 9-3-22 . Union Carbide Corp. v. Thiokol Corp., 890 F. Supp. 1035, 1994 U.S. Dist. LEXIS 20413 (S.D. Ga. 1994); Rolleston v. Cherry, 226 Ga. App. 750 , 487 S.E.2d 354 , 1997 Ga. App. LEXIS 345 (1997), cert. denied, No. S97C1616, 1997 Ga. LEXIS 965 (Ga. Oct. 31, 1997), cert. denied, 523 U.S. 1107, 118 S. Ct. 1677 , 140 L. Ed. 2 d 815, 1998 U.S. LEXIS 2995 (1998).

O.C.G.A. § 9-3-22 is applicable only to rights which arise under legislative enactment and which would not exist except for some act of the legislature; thus, it is not applicable to claims for the right of contribution filed by one co-maker of a debt against another pursuant to O.C.G.A. § 10-7-50 , which arises not out of statutory enactment, but is a claim based in equity. Gray v. Currie, No. 1:04-CV-3211-TWT, 2005 U.S. Dist. LEXIS 31407 (N.D. Ga. Nov. 21, 2005).

Contribution and indemnity for subcontractor. —

Subcontractor’s claim against a consultant for contribution was given by statute, O.C.G.A. § 51-12-32(a) , and the subcontractor’s claim for indemnity arose by operation of law. Therefore, the subcontractor’s suit for contribution and indemnity against the consultant was a claim to enforce rights that accrued by operation of law or a statute and was subject to a 20-year statute of limitations under O.C.G.A. § 9-3-22 . Saiia Constr., LLC v. Terracon Consultants, Inc., 310 Ga. App. 713 , 714 S.E.2d 3 , 2011 Ga. App. LEXIS 502 (2011).

Insurance subrogation actions. —

Under O.C.G.A. § 33-7-11(f) , in a subrogation action by an insurer to recover personal injury payments made to its insured, the insurer is bound by the two-year statute of limitation of O.C.G.A. § 9-3-33 , not the 20-year limitation of O.C.G.A. § 9-3-22 . Whirl v. Safeco Ins. Co., 241 Ga. App. 654 , 527 S.E.2d 262 , 1999 Ga. App. LEXIS 1683 (1999), cert. denied, No. S00C0682, 2000 Ga. LEXIS 437 (Ga. May 26, 2000).

Rights created by insurance company charter and bylaws. —

Rights of beneficiary of member of insurance company, contained in charter and bylaws, come within scope of this section. Georgia Masonic Ins. Co. v. Davis, 63 Ga. 471 , 1879 Ga. LEXIS 251 (1879) (see now O.C.G.A. § 9-3-22 ).

Subrogation of motor vehicle accident claims. —

Subrogation of insurance claims arising out of motor vehicle accidents are statutory and are subject to the 20-year statute of limitation. Hanover Ins. Co. v. Canal Ins. Co., 163 Ga. App. 20 , 293 S.E.2d 509 , 1982 Ga. App. LEXIS 2382 (1982).

When charter provision confers right of action upon persons injured by failure of company to repair its canal, this section is applicable. Savannah & Ogeechee Canal Co. v. Shuman, 98 Ga. 171 , 25 S.E. 415 , 1896 Ga. LEXIS 2 (1896) (see now O.C.G.A. § 9-3-22 ).

Maryland action to enforce stockholder’s liability. —

This section and not statute of limitations in Maryland applies to action in Maryland against stockholder in Georgia corporation to enforce liability as stockholder as created by corporate charter. Brunswick Term. Co. v. National Bank, 99 F. 635, 1900 U.S. App. LEXIS 4174 (4th Cir.), cert. denied, 178 U.S. 611, 20 S. Ct. 1029 , 44 L. Ed. 1215 , 1900 U.S. LEXIS 1704 (1900) (see now O.C.G.A. § 9-3-22 ).

Section applicable to causes of action arising solely under the Sale of Business Opportunities Act. —

General statute of limitations, providing that an action to enforce a right accruing to an individual under state statute must be brought within 20 years after the action accrues, governs a cause of action arising solely under the Sale of Business Opportunities Act, O.C.G.A. § 10-1-410 et seq., since the act itself contains no statute of limitations. Hornsby v. Phillips, 190 Ga. App. 335 , 378 S.E.2d 870 , 1989 Ga. App. LEXIS 231 (1989).

This section does not apply to actions under § 10(b) of the federal Securities Exchange Act of 1934 (15 U.S.C.S. § 78a et seq.), as this section applies only to special legislative statutes and acts of incorporation which confer rights upon particular individuals or a particular class of individuals and not to statutes which deal with the personal legal rights of the public at large. Dudley v. Southeastern Factor & Fin. Corp., 57 F.R.D. 177, 1972 U.S. Dist. LEXIS 10998 (N.D. Ga. 1972) (see now O.C.G.A. § 9-3-22 ).

Uniform Deceptive Trade Practices Act. —

Four-year period of O.C.G.A. § 9-3-31 was applicable for purposes of the Georgia Uniform Deceptive Trade Practices Act, not the 20-year period of O.C.G.A. § 9-3-22 . Kason Indus. v. Component Hdwe. Group, 120 F.3d 1199, 1997 U.S. App. LEXIS 22846 (11th Cir. 1997).

Payday lending litigation. —

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 Ga. LEXIS 783 (2016).

Right to recover for “injury or damages” contemplated by Uninsured Motorist Act (se now O.C.G.A. § 33-7-11 ) existed at common law and was not created anew by the legislature. Houston v. Doe, 136 Ga. App. 583 , 222 S.E.2d 131 , 1975 Ga. App. LEXIS 1427 (1975).

Penalty under O.C.G.A. § 47-17-60 . —

In mandamus action brought by Board of Commissioners of Peace Officers Annuity and Benefit Fund against county commissioners to collect penalty under Ga. L. 1975, p. 578, § 1 (see now O.C.G.A. § 47-17-60 ) for failure to pay amounts due, the one-year limitation of former Code 1933, § 3-714 (see now O.C.G.A. § 9-3-28 ), and not the 20-year limitation of former Code 1933, § 3-704 (see now O.C.G.A. § 9-3-22 ), applied. Busbee v. Gillis, 241 Ga. 353 , 245 S.E.2d 304 , 1978 Ga. LEXIS 935 (1978).

Subscription contract. —

This section does not apply to an action on a contract of subscription to capital stock. McDonell v. Hines, 28 Ga. App. 197 , 110 S.E. 505 , 1922 Ga. App. LEXIS 384 (1922).

Section inapplicable under provision requiring entry of contracts on public records. —

As the object of O.C.G.A. § 36-9-2 , requiring the entry of contracts of conveyance on the minutes of a public official’s records, is to give information to the public, the statute of limitation in O.C.G.A. § 9-3-22 was inapplicable because the action arose from a claim that a public officer had failed to perform the officer’s official duty. Dade County v. Miami Land Co., 253 Ga. 776 , 325 S.E.2d 750 , 1985 Ga. LEXIS 590 (1985).

Action for mileage tickets. —

This section does not apply to an action for mileage tickets. South Georgia Ry. v. South Ga. Grocery Co., 17 Ga. App. 349 , 86 S.E. 939 , 1915 Ga. App. LEXIS 416 (1915).

Recovery of interstate freight charges. —

This section does not apply to an action by a carrier for interstate freight charges. Cincinnati, N.O. & T.P. Ry. v. Malsby Co., 22 Ga. App. 595 , 96 S.E. 710 , 1918 Ga. App. LEXIS 614 (1918).

Enforcement of attorney’s lien. —

Former Civil Code 1895, § 3766 (see now O.C.G.A. § 9-3-22 ) did not apply to enforcement of attorney’s lien created by former Civil Code 1895, § 2814 (see now O.C.G.A. § 15-19-14 ). Peavy v. Turner, 107 Ga. 401 , 33 S.E. 409 , 1899 Ga. LEXIS 83 (1899).

When charter declares that “at the time of suits,” stockholders shall be individually liable for ultimate payment of debts of bank, in given proportion, this section does not begin to run in favor of stockholders until after date of such a suit. Wheatley v. Glover, 125 Ga. 710 , 54 S.E. 626 , 1906 Ga. LEXIS 2 (1906).

Subrogation rights under workers’ compensation. —

O.C.G.A. § 9-3-22 did not apply to a subrogation claim filed pursuant to O.C.G.A. § 34-9-11.1(c) , which allows an insurer who has paid worker’s compensation benefits to assert the employee’s cause of action against a third party who caused the injuries. Newsome v. Department of Admin. Servs., 241 Ga. App. 357 , 526 S.E.2d 871 , 1999 Ga. App. LEXIS 1633 (1999).

Five-year medical malpractice statute of repose, not 20-year limitations period for contribution actions, applied and barred the subrogee’s contribution action against the joint tortfeasor which the subrogee filed more than 10 years after the injury occurred that gave rise to the underlying medical malpractice action for which the joint tortfeasor and the medical center were found liable for damages as the five-year statute of repose better served the facts of the case and the law, which sought to eliminate stale claims, allow for the provision of quality healthcare, and related considerations. Pilzer v. Va. Ins. Reciprocal, 260 Ga. App. 736 , 580 S.E.2d 599 , 2003 Ga. App. LEXIS 389 (2003), cert. denied, No. S03C1216, 2003 Ga. LEXIS 753 (Ga. Sept. 8, 2003), rev'd, 278 Ga. 190 , 599 S.E.2d 182 , 2004 Ga. LEXIS 547 (2004), vacated, 272 Ga. App. 27 , 611 S.E.2d 706 , 2005 Ga. App. LEXIS 211 (2005).

Trial court properly granted judgment on the pleadings to the companies in a former employee’s action alleging violations of O.C.G.A. § 34-7-2 because the employee did not file an action claiming that a forfeiture clause in a stock incentive plan constituted a violation of wage requirements within the relevant two-year statute of limitations provided by O.C.G.A. § 9-3-22 , and the action was therefore time barred. Milhollin v. Salomon Smith Barney, Inc., 272 Ga. App. 267 , 612 S.E.2d 72 , 2005 Ga. App. LEXIS 264 (2005).

Federal Civil Rights Act actions. —

O.C.G.A. § 9-3-22 applies under § 1981 of the federal Civil Rights Act, 42 U.S.C.S. § 1983. Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 1983 U.S. App. LEXIS 29536 (11th Cir. 1983).

Since the federal civil rights statute, 42 U.S.C.S. § 1983, does not contain its own statute of limitations, it is well settled that the period of limitations to be used is the most analogous one provided by state law. The applicable limitations period for first amendment and due process claims is not the six-month period provided by O.C.G.A. § 45-19-36 for filing an administrative complaint for unlawful discrimination committed by a public employer; the most analogous limitations period provided by Georgia law for these claims appears to be either the one provided by O.C.G.A. § 9-3-22 (enforcement of statutory rights) or the one provided by O.C.G.A. § 9-3-33 (injuries to person or reputation). Cook v. Ashmore, 579 F. Supp. 78, 1984 U.S. Dist. LEXIS 20170 (N.D. Ga. 1984).

Appropriate Georgia state statute of limitations to be borrowed in a federal civil rights action under 42 U.S.C.S. § 1983 is O.C.G.A. § 9-3-22 (rights under statutes), not O.C.G.A. § 45-19-36 (unlawful labor practice). Solomon v. Hardison, 746 F.2d 699, 1984 U.S. App. LEXIS 17132 (11th Cir. 1984).

Appropriate state statute of limitations to be “borrowed” in an action under 42 U.S.C.S. § 1983 is O.C.G.A. § 9-3-22 . East Cent. Health Dist. v. Brown, 752 F.2d 615, 1985 U.S. App. LEXIS 28064 (11th Cir. 1985).

Recovery for Wages, Overtime, and Other Employment Issues

Action based on common-law grounds not within this section. —

Action based on complaint setting forth alternative claims based on express contract and quantum meruit, involving rights recognized under common law and codified from common law, is not action “for the recovery of wages” within meaning of this section, which has reference to rights arising solely from statute. Bass v. Hilts S. Equip. Co., 151 Ga. App. 883 , 261 S.E.2d 787 , 1979 Ga. App. LEXIS 2725 (1979), dismissed, Hilts Southern Equipment Co. v. Bass, 245 Ga. 591 , 267 S.E.2d 623 , 1980 Ga. LEXIS 868 (1980).

Action by retired teachers regarding amount of benefits under employment contract. —

As a class of retirees had a right to retirement pay from the Teachers Retirement System of Georgia that arose from their contracts of employment and not from a statutory right, the six-year limitations period of O.C.G.A. § 9-3-24 applicable to contract matters was controlling; the 20-year limitations period of O.C.G.A. § 9-3-22 was not the correct limitations period to apply in the circumstances. Teachers Ret. Sys. v. Plymel, 296 Ga. App. 839 , 676 S.E.2d 234 , 2009 Ga. App. LEXIS 172 (2009).

Employment discrimination action is governed by two-year limitation period provided under this section. Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494, 1974 U.S. Dist. LEXIS 6564 (S.D. Ga. 1974).

In a suit for wages by municipal employees seeking recovery as authorized by a municipal ordinance, the action must be brought within two years. City of Atlanta v. Adams, 256 Ga. 620 , 351 S.E.2d 444 , 1987 Ga. LEXIS 536 (1987).

Federal civil rights action for back pay. —

When federal laws create rights to back pay as part of general remedial relief, this section applies. United States v. Georgia Power Co., 474 F.2d 906, 1973 U.S. App. LEXIS 11611 (5th Cir. 1973).

Two-year period of limitations provided by this section, and not alternative 20-year period, governs portion of federal civil rights suits regarding recovery of back pay. Stroud v. Delta Airlines, 392 F. Supp. 1184, 1975 U.S. Dist. LEXIS 13402 (N.D. Ga. 1975), aff'd, Stroud v. Delta Air Lines, Inc., 544 F.2d 892, 1977 U.S. App. LEXIS 10714 (5th Cir. 1977), cert. denied, Stroud v. Delta Air Lines, Inc., 434 U.S. 844, 98 S. Ct. 146 , 54 L. Ed. 2 d 110, 1977 U.S. LEXIS 3077 (1977).

This section may bar recovery of back pay in actions brought by federal Equal Employment Opportunity Commission. EEOC v. C & D Sportswear Corp., 398 F. Supp. 300, 1975 U.S. Dist. LEXIS 12069 (M.D. Ga. 1975).

Equal Employment Opportunity Commission complaint for recovery of back pay is a private action and is thus bound by this section, the applicable state statute of limitations. EEOC v. Metropolitan Atlanta Girls' Club, Inc., 416 F. Supp. 1006, 1976 U.S. Dist. LEXIS 14330 (N.D. Ga. 1976); EEOC v. Upjohn Corp., 445 F. Supp. 635, 1977 U.S. Dist. LEXIS 12476 (N.D. Ga. 1977).

Two-year limitations period under this section is applicable to actions under 42 U.S.C.S. § 1981. Roberts v. H.W. Ivey Constr. Co., 408 F. Supp. 622, 1975 U.S. Dist. LEXIS 15057, 1975 U.S. Dist. LEXIS 15415 (N.D. Ga. 1975); Harris v. Anaconda Aluminum Co., 479 F. Supp. 11, 1979 U.S. Dist. LEXIS 13340 (N.D. Ga. 1979).

When actions brought under federal civil rights statutes are seeking back pay as part of general remedial relief, this section, which governs actions for unpaid wages, applies. Grimes v. Pitney Bowes, Inc., 480 F. Supp. 1381, 1979 U.S. Dist. LEXIS 7899 (N.D. Ga. 1979).

Federal civil rights claim for back pay is not barred by the applicable two-year statute of limitations in O.C.G.A. § 9-3-22 since the plaintiff first exhausted the plaintiff’s state administrative remedies, the statute of limitations being tolled from the date the plaintiff begins to pursue the plaintiff’s state administrative remedies until the date of the final decision of the Georgia Supreme Court. Brown v. Ledbetter, 569 F. Supp. 170, 1983 U.S. Dist. LEXIS 18151 (N.D. Ga. 1983).

Action under 42 U.S.C.S. § 1981 alleging plaintiff’s former employer wrongfully denied the plaintiff severance pay and certain reemployment assistance allegedly given to other employees because of the plaintiff’s race had to be filed within two years after the plaintiff knew or reasonably should have known that the alleged discrimination occurred. Greason v. Southeastern R.R. Associated Bureaus, 650 F. Supp. 1, 1986 U.S. Dist. LEXIS 27531 (N.D. Ga. 1986), aff'd, Greason v. Southeastern R.R., 813 F.2d 410, 1987 U.S. App. LEXIS 2537 (11th Cir. 1987).

Limitations periods of O.C.G.A. § 9-3-22 are not tolled by the pendency of a Title VII employment discrimination charge. Calloway v. Westinghouse Elec. Corp., 642 F. Supp. 663, 1986 U.S. Dist. LEXIS 21887 (M.D. Ga. 1986), dismissed without op., 831 F.2d 1069, 1987 U.S. App. LEXIS 13233 (11th Cir. 1987).

Employment discrimination actions under 42 U.S.C.S. § 1981 are governed by O.C.G.A. § 9-3-22 . Calloway v. Westinghouse Elec. Corp., 642 F. Supp. 663, 1986 U.S. Dist. LEXIS 21887 (M.D. Ga. 1986), dismissed without op., 831 F.2d 1069, 1987 U.S. App. LEXIS 13233 (11th Cir. 1987).

In an employment discrimination action under 42 U.S.C.S. § 1981, the 20-year period of limitation of O.C.G.A. § 9-3-22 applies to claims for declaratory and injunctive relief and the two-year period of limitation applies to claims for damages. Stafford v. Muscogee County Bd. of Educ., 688 F.2d 1383, 1982 U.S. App. LEXIS 24828 (11th Cir. 1982).

There is no relevant federal statute of limitation for 42 U.S.C.S. § 1981 actions, so the controlling period is that stated in O.C.G.A. § 9-3-22 , the most appropriate one provided by state law. Evans v. Meadow Steel Prods., Inc., 572 F. Supp. 250, 1983 U.S. Dist. LEXIS 12823 (N.D. Ga. 1983).

Two-year limitations period for recovery of wages specified in O.C.G.A. § 9-3-22 applies to federal employment discrimination claims for back pay, and the 20-year limitations period to enforce individual statutory rights applies to federal employment discrimination claims for equitable relief. Mack v. W.R. Grace Co., 578 F. Supp. 626, 1983 U.S. Dist. LEXIS 12776 (N.D. Ga. 1983); Buffington v. General Time Corp., 677 F. Supp. 1186, 1988 U.S. Dist. LEXIS 324 (M.D. Ga. 1988).

Employment discrimination actions under 42 U.S.C.S. § 1981 most closely resemble state-law “suits for the enforcement of rights accruing to individuals under statutes” and therefore are governed by O.C.G.A. § 9-3-22 . Howard v. Roadway Express, Inc., 726 F.2d 1529, 1984 U.S. App. LEXIS 24621 (11th Cir. 1984).

Municipal employees. —

Limitation of O.C.G.A. § 9-3-22 applies to actions for wages brought by municipal employees pursuant to municipal ordinances; the trial court correctly determined that a portion of a mechanic’s wage claims were time barred pursuant to § 9-3-22 . Willis v. City of Atlanta, 265 Ga. App. 640 , 595 S.E.2d 339 , 2004 Ga. App. LEXIS 214 (2004).

When section begins to run for EEOC complaint. —

When Equal Employment Opportunity Commission complaint seeks recovery of back pay, this section begins to run from last act of discrimination. EEOC v. Metropolitan Atlanta Girls' Club, Inc., 416 F. Supp. 1006, 1976 U.S. Dist. LEXIS 14330 (N.D. Ga. 1976).

Filing of an Equal Employment Opportunity Commission charge tolls statute of limitations. Freeman v. Motor Convoy, Inc., 409 F. Supp. 1100, 1975 U.S. Dist. LEXIS 14890 (N.D. Ga. 1975), aff'd, 700 F.2d 1339, 1983 U.S. App. LEXIS 29536 (11th Cir. 1983).

Limitations period for EEOC complaint is tolled from filing of charge with EEOC until notice is given the charging party that conciliation efforts have failed. EEOC v. Metropolitan Atlanta Girls' Club, Inc., 416 F. Supp. 1006, 1976 U.S. Dist. LEXIS 14330 (N.D. Ga. 1976).

This section does not bar Equal Employment Opportunity Commission from seeking injunctive relief. EEOC v. C & D Sportswear Corp., 398 F. Supp. 300, 1975 U.S. Dist. LEXIS 12069 (M.D. Ga. 1975).

Action seeking to recover reasonable value of services, less credit for partial payment in form of reduced rentals, clearly came under four-year limitation of former Code 1933, § 3-706 (see now O.C.G.A. § 9-3-25 ), and was not an action “for the recovery of wages” under former Code 1933, § 3-704 (see now O.C.G.A. § 9-3-22 ). Parks v. Brissey, 114 Ga. App. 563 , 151 S.E.2d 896 , 1966 Ga. App. LEXIS 850 (1966).

Claims under federal Employee Retirement Income Security Act. —

O.C.G.A. § 9-3-22 governed employees’ claims under the federal Employee Retirement Income Security Act, 29 U.S.c. § 1051 et seq., for backpay, front pay, and reinstatement. Clark v. Coats & Clark, Inc., 865 F.2d 1237, 1989 U.S. App. LEXIS 1809 (11th Cir. 1989).

Action by migrant farm workers. —

In a class action in which migrant farm workers’ state law breach of contract claims against farmers were in reality wages or contract for wages set by statute, farmers’ motion to dismiss the state law claims was granted as to claims before 2004, as they were barred by the two-year statute of limitations in O.C.G.A. § 9-3-22 . Antonio-Candelaria v. Gibbs Farms, Inc., No. 1:06-CV-39, 2008 U.S. Dist. LEXIS 16295 (M.D. Ga. Mar. 4, 2008).

Plaintiffs, who were Mexican temporary farm workers, filed a breach of contract claim against defendant employer, alleging the employer violated the terms of an immigration clearance order, which promised compliance with all employ-ment-related law and reimbursement for certain expenses and payment of wages on a weekly basis, the six-year statute of limitations for simple contracts, provided by O.C.G.A. § 9-3-24 , applied to such claims, rather than the two-year limitations period of O.C.G.A. § 9-3-22 as to payment of wages because regulations governing the worker program expressly stated that the job clearance order created a contract between the employer and the worker, thus invoking the six-year statute of limitations specified in § 9-3-24 . Ramos-Barrientos v. Bland, 728 F. Supp. 2d 1360, 2010 U.S. Dist. LEXIS 22921 (S.D. Ga. 2010).

Action against labor pool. —

Action for claims under O.C.G.A. §§ 34-7-2 and 34-7-3 which accrued more than two years prior to the filing of the action was barred by O.C.G.A. § 9-3-22 . Sakas v. Settle Down Enters., Inc., 90 F. Supp. 2d 1267, 2000 U.S. Dist. LEXIS 3839 (N.D. Ga. 2000).

State court judge’s action for unpaid compensation. —

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 Ga. LEXIS 594 (2019).

RESEARCH REFERENCES

Am. Jur. 2d. —

51 Am. Jur. 2d, Limitation of Actions, § 127.

C.J.S. —

54 C.J.S., Limitation of Actions, §§ 77, 171 et seq.

ALR. —

Servant’s right to compensation for extra work or overtime, 25 A.L.R. 218 ; 107 A.L.R. 705 .

When cause of action between master and servant deemed to be upon a liability created by statute within contemplation of statute of limitations, 104 A.L.R. 462 .

Conflict of laws as to period of limitation to enforce stockholders’ statutory liability, 143 A.L.R. 1442 .

Statute of limitations applicable to action to recover minimum wage, overtime compensation, or liquidated damages under Fair Labor Standards Act, 157 A.L.R. 545 ; 162 A.L.R. 237 .

Action by passenger against carrier for personal injuries as based on contract or on tort, with respect to application of statutes of limitation, 20 A.L.R.2d 331.

What statute of limitations is applicable to a damage action under federal civil rights acts, 98 A.L.R.2d 1160.

When does cause of action accrue, for purposes of statute of limitations, against action based upon encroachment of building or other structure upon land of another, 12 A.L.R.3d 1265.

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