General Consideration

State empowered to deny any citizen any right. —

One who is a citizen does not necessarily have the right to exercise all the rights exercised by any citizen. It is within the power of the state, by proper methods, to deny to any citizen any right. But that denial must be made by the proper authority. White v. Clements, 39 Ga. 232 , 1869 Ga. LEXIS 207 (1869).

Naturalized citizen stands upon the same footing as other citizens, and the naturalized citizen has all the rights anybody has — unless it is otherwise specially provided by law. White v. Clements, 39 Ga. 232 , 1869 Ga. LEXIS 207 (1869).

Rights of each race are controlled and governed by same enactments or principles of law. Smith v. DuBose, 78 Ga. 413 , 3 S.E. 309 , 1887 Ga. LEXIS 2 (1887).

Mentally and physically disabled person found competent. —

Though a victim of sexual assault was mentally and physically disabled, a trial court did not abuse the court’s discretion in determining that the victim was competent to testify against the defendant at the defendant’s criminal trial because the trial court held a competency hearing and found that the victim understood the victim’s responsibility to tell the truth and clearly knew what had happened, who had done it, and so communicated those facts, despite the victim’s mental and physical disabilities. Wilson v. State, 270 Ga. App. 311 , 605 S.E.2d 921 , 2004 Ga. App. LEXIS 1411 (2004).

Impact of pardon of sex offender. —

Sex offender registration requirements were held to be a legal disability and are removed by the Georgia Board of Pardons and Paroles’ order granting a pardon and removing all disabilities. State v. Davis, 303 Ga. 684 , 814 S.E.2d 701 , 2018 Ga. LEXIS 364 (2018).

Personal Property

Person of color has the right to a prescriptive title by adverse possession. Beatty v. Benton, 135 U.S. 244, 10 S. Ct. 747 , 34 L. Ed. 124 , 1890 U.S. LEXIS 2018 (1890).

Elective Franchise

Party primary not within statutory and constitutional protection. —

A party primary held under the provisions of former Code 1933, § 34-3212, merely chooses candidates or nominees of a political party to be submitted to the entire electorate in the general election, and is not an “election” within the meaning of that term as used in the statutory and constitutional provisions of Georgia conferring upon its citizens the right to vote in an election; the right to participate in such a primary does not come within the protection of the Fourteenth and Fifteenth Amendments to the federal Constitution.Cox v. Peters, 208 Ga. 498 , 67 S.E.2d 579 , 1951 Ga. LEXIS 415 (1951) (decided prior to enactment of O.C.G.A. §§ 21-2-71 and 21-2-152 ).

Right to Hold Office

Right to hold office is one of rights of citizen of this state which is provided by both statute and Constitution. White v. Clements, 39 Ga. 232 , 1869 Ga. LEXIS 207 (1869).

Right of citizen to hold office is general rule, ineligibility the exception; a citizen may not be deprived of this right without proof of some disqualification specifically declared by law. McLendon v. Everett, 205 Ga. 713 , 55 S.E.2d 119 , 1949 Ga. LEXIS 576 (1949).

Negroes may hold office. —

By the Constitution of 1868, the rights of the Negro are the same as the rights of the white man. The Constitution did not make race or color a disqualification for office and, as Negroes are citizens under former Code 1868, §§ 1648, 1649 (see now O.C.G.A. § 1-2-6 ), it follows that they may hold office. White v. Clements, 39 Ga. 232 , 1869 Ga. LEXIS 207 (1869).

Courts

No general right of access. —

In a suit challenging a court’s electronic filing fee system, the trial court did not err when the court granted the motion to dismiss the plaintiff’s claims under Ga. Const. 1983, Art. I, Sec. I, Para. XII and O.C.G.A. § 1-2-6(a)(6) because Ga. Const. 1983, Art. I, Sec. I, Para. XII was never intended to provide a right of access to the courts and the Georgia Supreme Court has established that there is no express constitutional right of access to the courts under the Georgia Constitution. Best Jewelry Mfg. Co. v. Reed Elsevier Inc., 334 Ga. App. 826 , 780 S.E.2d 689 , 2015 Ga. App. LEXIS 733 (2015), cert. denied, No. S16C0502, 2016 Ga. LEXIS 286 (Ga. Apr. 4, 2016).

Forum non conveniens doctrine in federal tort cases. —

The privileges and immunities clause of the United States Constitution prohibits Georgia courts from applying the doctrine of forum non conveniens to citizens of other states who are nonresidents of Georgia in federal tort cases and declining to exercise jurisdiction of such suits brought by them. Brown v. Seaboard Coast Line R.R., 229 Ga. 481 , 192 S.E.2d 382 , 1972 Ga. LEXIS 658 (1972).

Because a trial court lacks discretion to dismiss a Federal Employers’ Liability Act case on the ground of forum non conveniens, the trial court correctly denied the railroad’s motion to dismiss the case on such grounds. Southern Ry. v. Goodman, 259 Ga. 339 , 380 S.E.2d 460 , 1989 Ga. LEXIS 282 (1989).

Section does not change the common law 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).

Action for interference with right to testify. —

An action for the recovery of damages for interference with the right to testify as a witness is one “for injuries to the person” and must be commenced within two years of the alleged interference. Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494, 1974 U.S. Dist. LEXIS 6564 (S.D. Ga. 1974).

Witness

Right to testify protected by Constitution. —

The right to testify as a witness is a personal right and is an adjunct or portion of the fundamental concept of freedom and liberty protected by the Georgia Constitution. Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494, 1974 U.S. Dist. LEXIS 6564 (S.D. Ga. 1974).

Right to testify neither unlimited or constitutionally fundamental. —

O.C.G.A. § 1-2-6 creates a statutory right to testify as a witness that is neither unlimited nor constitutionally fundamental. Ambles v. State, 259 Ga. 406 , 383 S.E.2d 555 , 1989 Ga. LEXIS 348 (1989).

Georgia witness competency statutes present a reasonable requirement regarding the minimal level of understanding for people participating in one of the most important functions of government and do not violate the equal protection clause. Ambles v. State, 259 Ga. 406 , 383 S.E.2d 555 , 1989 Ga. LEXIS 348 (1989).

State had standing to challenge Georgia witness competency statutes. Ambles v. State, 259 Ga. 406 , 383 S.E.2d 555 , 1989 Ga. LEXIS 348 (1989).

Subornation of perjury as an invasion of privacy. —

Evidence that a fellow employee attempted to require an employee to lie at a deposition hearing with reference to a lawsuit then in progress involving the employer interfered with the latter employee’s right to testify as a witness and supported an action against that fellow employee for trespass upon the right to privacy. Troy v. Interfinancial, Inc., 171 Ga. App. 763 , 320 S.E.2d 872 , 1984 Ga. App. LEXIS 2333 (1984).

Persons of color are competent witnesses in all cases. Clarke v. State, 35 Ga. 75 , 1866 Ga. LEXIS 161 (1866).

Exercise of Rights

All citizens are entitled to exercise all their rights, unless prohibited by law. White v. Clements, 39 Ga. 232 , 1869 Ga. LEXIS 207 (1869).

General Consideration

Construction cannot render statute meaningless. —

Because the purpose of O.C.G.A. § 17-6-72(d)(1) was remedial and had to therefore be construed in favor of the surety, in interpreting the statute and avoiding a meaningless result the trial court properly allowed a surety a remission of 50 percent of the bond amount after the surety filed its application for the bond at any time within 30 days following the expiration of the two-year period following the date of judgment. State of Ga. v. Free At Last Bail Bonds, 285 Ga. App. 734 , 647 S.E.2d 402 , 2007 Ga. App. LEXIS 633 (2007).

Applicability

Section is intended to apply to provisions of the Code in the subject of wills. Ellis v. Darden, 86 Ga. 368 , 12 S.E. 652 , 1890 Ga. LEXIS 259 (1890).

Section applies to statutory, but not contractual, limitations. Rowell v. Harrell Realty Co., 25 Ga. App. 585 , 103 S.E. 717 , 1920 Ga. App. LEXIS 90 (1920) see also Simpkins v. Johnson, 3 Ga. App. 437 , 60 S.E. 202 , 1908 Ga. App. LEXIS 171 (1908); Maxwell Bros. v. Liverpool & London & Globe Ins. Co., 12 Ga. App. 127 , 76 S.E. 1036 , 1913 Ga. App. LEXIS 460 (1913).

Section applies to construction of both municipal ordinances and statutes. Risser v. City of Thomasville, 248 Ga. 866 , 286 S.E.2d 727 , 1982 Ga. LEXIS 710 (1982).

Paragraph (d)(3) of O.C.G.A. § 1-3-1 applies to contracts as well as statutes when the limitation is in terms of days. Management Search, Inc. v. Avon Prods., Inc., 166 Ga. App. 262 , 304 S.E.2d 426 , 1983 Ga. App. LEXIS 2127 (1983).

1985 amendment. —

Because the 1985 amendment to paragraph (d)(3) of O.C.G.A. § 1-3-1 , effective July 1, 1985, was silent on the question of retroactive application, it has no application to a personal injury case where the period of limitations would have expired on June 29, 1985, under the law prior to the amendment. Loveless v. Grooms, 180 Ga. App. 424 , 349 S.E.2d 281 , 1986 Ga. App. LEXIS 2177 (1986).

The 1985 amendment to paragraph (d)(3) extended the old statutory time period where that time period had not yet expired prior to the effective date of the amendment. Hollingsworth v. Hubbard, 184 Ga. App. 121 , 361 S.E.2d 12 , 1987 Ga. App. LEXIS 2190 (1987).

Computation of time. —

Superior court improperly dismissed as untimely appellant city’s petition for a writ of certiorari challenging a civil service board’s decision, as the petition was timely filed for purposes of O.C.G.A. § 5-4-6(a) since: (1) the last day to file the petition fell on Thanksgiving Day; (2) the Friday after Thanksgiving day, like Thanksgiving day, was a legal holiday as set forth in O.C.G.A. § 1-4-1 ; and (3) the petition was filed on the very next business day, as allowed by O.C.G.A. § 1-3-1(d)(3). City of Atlanta v. Hector, 256 Ga. App. 665 , 569 S.E.2d 600 , 2002 Ga. App. LEXIS 993 (2002).

Denial of an untimely motion for a continuance was not an abuse of discretion, in the absence of a proffer of defendant’s counsel’s testimony or other evidence to support this claim. Currington v. State, 270 Ga. App. 381 , 606 S.E.2d 619 , 2004 Ga. App. LEXIS 1444 (2004).

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).

Construction of “holidays.” —

Because the plain language of O.C.G.A. § 1-3-1(a) and § 5-6-38(a) make no provisions for extending the filing time for notices of appeal to compensate for county declared holidays and O.C.G.A. § 1-4-2 limits religious holidays to Sundays, Good Friday did not constitute a holiday for purposes of extending the filing date. In re Estate of Dasher, 259 Ga. App. 201 , 575 S.E.2d 921 (2002).

Definition according to experts in medical field. —

Where executive agencies have rule-making powers delegated by the Georgia General Assembly, O.C.G.A. § 1-3-1(b) must yield to other rules of statutory construction; thus, the definition of “specialty” as understood by an American board on medical specialties was not controlling for purposes of the single-specialty exemption of O.C.G.A. § 31-6-2(14)(G)(iii) regarding the requirement of obtaining a certificate of need. Albany Surgical, P.C. v. Dep't of Cmty. Health, 257 Ga. App. 636 , 572 S.E.2d 638 , 2002 Ga. App. LEXIS 1246 (2002), cert. denied, No. S03C0225, 2003 Ga. LEXIS 35 (Ga. Jan. 13, 2003).

General Rules of Construction

Statute is presumed to be valid and constitutional until the contrary appears, and, where challenged as a whole, the attack will necessarily fail unless the statute is invalid in every part for some reason alleged. Williams v. Ragsdale, 205 Ga. 274 , 53 S.E.2d 339 , 1949 Ga. LEXIS 345 (1949).

A solemn Act of the General Assembly is presumed to be constitutional. State v. Davis, 246 Ga. 761 , 272 S.E.2d 721 , 1980 Ga. LEXIS 1265 (1980).

A statute properly enacted is presumed to be constitutional. Development Auth. v. Beverly Enters., 247 Ga. 64 , 274 S.E.2d 324 , 1981 Ga. LEXIS 626 (1981).

An Act of the General Assembly carries a strong presumption of constitutionality, and therefore should not be set aside unless it “plainly and palpably” conflicts with a constitutional provision. City of Atlanta v. Metropolitan Atlanta Rapid Transit Auth., 636 F.2d 1084, 1981 U.S. App. LEXIS 20205 (5th Cir. 1981).

Statute must be construed with reference to whole system of which it is a part. Allison v. Domain, 158 Ga. App. 542 , 281 S.E.2d 299 , 1981 Ga. App. LEXIS 2300 (1981).

Construction which will give effect to a statute or rule is preferred to a construction which will destroy it. Brown v. State Merit Sys. of Personnel Admin., 245 Ga. 239 , 264 S.E.2d 186 , 1980 Ga. LEXIS 755 (1980).

That construction which will uphold a statute in whole and in every part is preferred. Exum v. City of Valdosta, 246 Ga. 169 , 269 S.E.2d 441 , 1980 Ga. LEXIS 1031 (1980).

Subdivision (d)(3) has no application in criminal prosecution. —

In a prosecution of a county deputy for sexual battery and false imprisonment, an indictment filed on May 30, 2014, two years after the incidents that took place on May 30, 2012, was filed a day after the expiration of the statute of limitation, O.C.G.A. § 17-3-1(e) ; O.C.G.A. § 1-3-1(d)(3) did not apply in a criminal prosecution. State v. Dorsey, 342 Ga. App. 188 , 802 S.E.2d 61 , 2017 Ga. App. LEXIS 270 (2017).

Specific sentencing provisions controlled over general sentencing provisions. —

Pursuant to O.C.G.A. § 16-13-31 (g)(1), the trial court lacked the authority to probate or suspend sentences imposed against two defendants in unrelated criminal actions, and neither the 2004 nor the 2006 amendments to the general sentencing provisions under O.C.G.A. § 17-10-1(a)(1) were relevant; moreover, because O.C.G.A. §§ 17-10-6.1 and 17-10-6.2 were statutes that defined certain categories of crimes and provided the sentencing guidelines for those categories, it did not appear that the list of these two exceptions normally would have included § 16-13-31 or any other specific criminal statute, and any omission would be significant only with regard to a statute that defined classes or categories of crimes. Gillen v. State, 286 Ga. App. 616 , 649 S.E.2d 832 , 2007 Ga. App. LEXIS 836 (2007), cert. denied, No. S07C1780, 2007 Ga. LEXIS 809 (Ga. Oct. 29, 2007).

Courts not to “read out” part of statute. —

It is contrary to the generally accepted principles for construing statutes to “read out” any part of the statute as “mere surplusage” unless there is a clear reason for doing so. Porter v. Food Giant, Inc., 198 Ga. App. 736 , 402 S.E.2d 766 , 1991 Ga. App. LEXIS 264 (1991), cert. denied, No. S91C0793, 1991 Ga. LEXIS 717 (Ga. May 15, 1991), cert. denied, 502 U.S. 980, 112 S. Ct. 582 , 116 L. Ed. 2 d 607, 1991 U.S. LEXIS 6925 (1991).

Construction which renders ordinance or resolution valid preferred. —

In construing an ordinance or resolution of a governmental unit, if the language is susceptible of more than one construction, that construction is preferred which will render it valid rather than invalid. Mayor of Hapeville v. Anderson, 246 Ga. 786 , 272 S.E.2d 713 , 1980 Ga. LEXIS 1282 (1980).

It is courts’ duty to put construction upon statutes, if possible, and to uphold them and carry them into effect. Lamons v. Yarbrough, 206 Ga. 50 , 55 S.E.2d 551 , 1949 Ga. LEXIS 611 (1949).

It is the duty of the court in construing an ambiguous statute to give it a construction, if the language permits, that will sustain the Act, rather than a construction that will render it invalid. Jones v. City of College Park, 223 Ga. 778 , 158 S.E.2d 384 , 1967 Ga. LEXIS 693 (1967).

Act’s constitutionality determined by examining Act existing at time of offense. —

The constitutionality of an Act of the General Assembly must be determined by the examination of the Act as it existed at the time of the alleged offense, not by an examination of an isolated section of the Code. Stewart v. State, 246 Ga. 70 , 268 S.E.2d 906 , 1980 Ga. LEXIS 970 (1980).

Statutes construed in connection and in harmony with existing law. —

All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it. New statutes are therefore to be construed in connection and in harmony with the existing law. McPherson v. City of Dawson, 221 Ga. 861 , 148 S.E.2d 298 , 1966 Ga. LEXIS 727 (1966).

All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it; new statutes are to be construed in connection and in harmony with the existing law, and their meaning and effect will be determined in connection with not only the common law and the Constitution, but also with reference to other statutes and the decisions of the courts. State v. Davis, 246 Ga. 761 , 272 S.E.2d 721 , 1980 Ga. LEXIS 1265 (1980); Allison v. Domain, 158 Ga. App. 542 , 281 S.E.2d 299 , 1981 Ga. App. LEXIS 2300 (1981); Wigley v. Hambrick, 193 Ga. App. 903 , 389 S.E.2d 763 , 1989 Ga. App. LEXIS 1682 (1989).

When O.C.G.A. §§ 15-11-40(b) , 15-11-63(e)(1)(D) and (e)(2)(c) were read together to effectuate their meaning, as required by O.C.G.A. § 1-3-1(a) , the juvenile court did not err in denying a juvenile’s motion to commute or reduce the sentence imposed, as allegations that the juvenile was rehabilitated while in restrictive custody and would benefit from being released were insufficient to grant the juvenile court authority to modify its commitment order once physical custody of the juvenile was transferred to the Department of Juvenile Justice. In the Interest of J.V., 282 Ga. App. 319 , 638 S.E.2d 757 , 2006 Ga. App. LEXIS 1265 (2006).

A statute must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part. Osborn v. State, 161 Ga. App. 132 , 291 S.E.2d 22 , 1982 Ga. App. LEXIS 3019 (1982).

Construction cannot render statute meaningless. —

Construing O.C.G.A. § 16-10-94(c) , and in order to avoid rendering the terms “and involving another person” meaningless, the court had to interpret that language as imposing felony punishment when the person committed the tampering offense involving the prosecution or defense of a third person; hence, because the state did not present any allegations or evidence indicating that the defendant committed the tampering offense to prevent the apprehension or prosecution of anyone other than the defendant, the felony sentence imposed was void, and had to be vacated. English v. State, 282 Ga. App. 552 , 639 S.E.2d 551 , 2006 Ga. App. LEXIS 1459 (2006).

Courts cannot construe plain statutes. —

If a statute is plain and susceptible of but one construction, the courts have no authority to place a different construction on it, but must apply it according to its terms. Thompson v. Georgia Power Co., 73 Ga. App. 587 , 37 S.E.2d 622 , 1946 Ga. App. LEXIS 366 (1946).

Courts of last resort must frequently construe the language of a statute, but they may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning. Frazier v. Southern Ry., 200 Ga. 590 , 37 S.E.2d 774 , 1946 Ga. LEXIS 300 (1946).

Where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. City of Jesup v. Bennett, 226 Ga. 606 , 176 S.E.2d 81 , 1970 Ga. LEXIS 609 (1970).

Certain express requirements must be spelled out in statute. —

A county historic preservation commission’s decision was not void because the commission did not have seven members as required by an ordinance. Neither the ordinance nor the Historical Preservation Act, O.C.G.A. § 44-10-20 et seq., provided that failure to have seven active members invalidated a decision; such an express requirement was necessary under O.C.G.A. § 1-3-1(c) . DeKalb County v. Buckler, 288 Ga. App. 346 , 654 S.E.2d 193 , 2007 Ga. App. LEXIS 1199 (2007), cert. denied, No. S08C0514, 2008 Ga. LEXIS 374 (Ga. Apr. 21, 2008).

Gender references. —

For construction purposes, the state’s act of merely tracking the language of O.C.G.A. § 16-10-24(a) , which itself used the masculine pronoun “his” to include the feminine gender, did not result in a fatal variance between the evidence at trial and the allegations of the accusation, in a case involving a female officer, entitling both defendants to a directed verdict on the charges of which the defendants were eventually convicted. Curtis v. State, 285 Ga. App. 298 , 645 S.E.2d 705 , 2007 Ga. App. LEXIS 491 (2007), overruled in part, McClure v. State, 306 Ga. 856 , 834 S.E.2d 96 , 2019 Ga. LEXIS 643 (2019).

Plain and ordinary meaning. —

It is a fundamental principle of statutory construction that the court must give words their plain and ordinary meaning, pursuant to O.C.G.A. § 1-3-1(b) ; therefore, because O.C.G.A. § 9-12-61 recites explicitly that revival of a dormant judgment may be accomplished by “an action” within three years of when the judgment became dormant, not by “a judgment” within that time period, the General Assembly intended that dormant judgments could be revived during a three year period thereafter by bringing an action into existence, i.e., filing an action. Magnum Communs. Ltd. v. Samoluk, 275 Ga. App. 177 , 620 S.E.2d 439 , 2005 Ga. App. LEXIS 925 (2005), cert. denied, No. S06C0147, 2006 Ga. LEXIS 29 (Ga. Jan. 17, 2006).

In an action in which the plaintiff consumer filed a complaint under the Georgia Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., and the Georgia Unfair or Deceptive Practices Toward the Elderly Act, O.C.G.A. § 10-1-850 et seq., and the lender argued for dismissal because the language of O.C.G.A. § 10-1-851 required conduct directed at more than one elderly person, the argument was rejected; consistent with O.C.G.A. § 1-3-1(d)(6), and the use of plurals or the singular form in O.C.G.A. §§ 10-1-850 , 10-1-852 , and 10-1-853 , O.C.G.A. § 10-1-851 required only a showing that FBPA was violated against one elderly person. Kitchen v. Ameriquest Mortg. Co., No. 1:04-CV-2750-BBM, 2005 U.S. Dist. LEXIS 43937 (N.D. Ga. Apr. 29, 2005).

Trial court properly reversed a decision by the Georgia Workers’ Compensation Appellate Division and reinstated a decision of an administrative law judge who found that an employee suffered a “catastrophic injury” for purposes of O.C.G.A. § 34-9-200.1(g)(6), as the employee was unable to perform the prior work done, although the employee was able to perform other work available in substantial numbers within the national economy; the relevant provision of O.C.G.A. § 34-9-200.1(g)(6) used “or” between the two types of work that an employee could perform rather than “and” and that phraseology was deemed unambiguous, plain, and capable of having only one meaning, based on statutory interpretation rules under O.C.G.A. § 1-3-1(a) and legislative changes over time to O.C.G.A. § 34-9-200.1(g)(6). Rite-Aid Corp. v. Davis, 280 Ga. App. 522 , 634 S.E.2d 480 , 2006 Ga. App. LEXIS 878 (2006), cert. denied, No. S06C2015, 2006 Ga. LEXIS 1019 (Ga. Nov. 20, 2006).

Under the plain and ordinary language of O.C.G.A. § 17-6-72(d)(1), a bondsman who failed to assist in the arrest of the principal of its bond was not entitled to a 50 percent remission of the bond, and the district attorney’s consent to the bondsman’s motion had no legal effect, as such was not accepted by the trial court. Joe Ray Bonding Co. v. State of Ga., 284 Ga. App. 687 , 644 S.E.2d 501 , 2007 Ga. App. LEXIS 383 (2007).

Pursuant to the cardinal rule of statutory construction of O.C.G.A. § 1-3-1(a) , the plaintiffs had no standing to challenge the facial constitutionality of O.C.G.A. § 16-11-34.2(b)(2) and (b)(4), the funeral picketing statute, because the plaintiffs admitted that the plaintiffs did not intend to impede, disrupt, or interfere with any funerals; thus, without mens rea, there was no real risk of being prosecuted and the plaintiffs had not been threatened with arrest. Hood v. Perdue, 540 F. Supp. 2d 1350, 2008 U.S. Dist. LEXIS 22502 (N.D. Ga. 2008).

The basic distinction between administrative and judicial acts is that in the former case the law prescribes and defines the duty to be performed with such precision and certainty as to leave no room for the exercise of judgment or discretion; whereas in the latter case the act to be done does involve the exercise of judgment or discretion. Stepp v. Lance, 131 Ga. App. 193 , 205 S.E.2d 490 , 1974 Ga. App. LEXIS 1368 (1974).

In construing conflicting legitimation statutes, which permitted a jury trial (O.C.G.A. § 19-7-22 ), with paternity statute, which expressly prohibited a jury trial (O.C.G.A. § 19-7-40 ), and due to the fact that the two proceedings were consolidated, the legislative ban on jury trials provided for in the paternity statute had to prevail as to hold otherwise would allow a party to thwart the paternity statute’s goals of identifying the father and making sure the father paid child support. Banks v. Hopson, 275 Ga. 758 , 571 S.E.2d 730 , 2002 Ga. LEXIS 910 (2002).

“Bribery” has clear definition. —

Within the context of O.C.G.A. § 16-10-2 (a)(2), it is only “gifts” which are excepted from the purview thereof and not “bribes,” no matter how small the amount involved; accordingly, where a trial court construed § 16-10-2 and held that small amounts of cash that added up to less than $100, which were accepted by defendant, a detention officer, from inmates, were specifically excepted from the offense of bribery, it did not construe the statute using the ordinary meaning of the words pursuant to O.C.G.A. § 1-3-1(b) , which was error. State v. Fortner, 264 Ga. App. 783 , 592 S.E.2d 454 , 2003 Ga. App. LEXIS 1565 (2003).

Statute shall be construed so as to give full force and effect to all provisions and so as to reconcile any apparent conflicts. Head v. H.J. Russell Constr. Co., 152 Ga. App. 864 , 264 S.E.2d 313 , 1980 Ga. App. LEXIS 1633 (1980).

Noscitur a sociis is a familiar rule of construction, and so as to reconcile any apparent conflicts. Head v. H.J. Russell Constr. Co., 152 Ga. App. 864 , 264 S.E.2d 313 , 1980 Ga. App. LEXIS 1633 (1980).

Any portion of body of laws may be invoked to ascertain meaning of another part. Royal Indem. Co. v. Agnew, 66 Ga. App. 377 , 18 S.E.2d 57 , 1941 Ga. App. LEXIS 214 (1941).

Clause’s meaning manifested by context and subject matter. —

The meaning of a clause in a statute depends upon the intention with which it is used as manifested by the context and considered with reference to the subject matter to which it relates. Thomas v. MacNeill, 200 Ga. 418 , 37 S.E.2d 705 , 1946 Ga. LEXIS 298 (1946).

Rule ejusdem generis set forth in section. —

The rule ejusdem generis, to the effect that general terms following specific terms are confined to the same kind, is set forth in this section. Gore v. State, 79 Ga. App. 696 , 54 S.E.2d 669 , 1949 Ga. App. LEXIS 726 (1949).

“May” sometimes construed as mandatory. —

In statutory construction, “may” is construed as mandatory when the statute concerns the public interest, or affects the rights of third persons. Great N. Nekoosa Corp. v. Board of Tax Assessors, 244 Ga. 624 , 261 S.E.2d 346 , 1979 Ga. LEXIS 1353 (1979).

Statutes generally receive prospective rather than retrospective application. —

Statutes framed in general terms and not plainly indicating the contrary will be construed prospectively, so as to apply to persons, subjects, and things within their purview and scope coming into existence subsequent to their enactment. Undercofler v. Swint, 111 Ga. App. 117 , 140 S.E.2d 894 , 1965 Ga. App. LEXIS 896 (1965).

Repeal of valid statute by implication. —

A valid subsisting statute is not repealed by implication by a later Act unless they are generally inconsistent or unless the later Act covers the entire field of the former legislation. Taylor v. R.O.A. Motors, Inc., 108 Ga. App. 635 , 134 S.E.2d 486 , 1963 Ga. App. LEXIS 727 (1963).

Repeals by implication are not favored by law, and a subsequent statute repeals prior legislative Acts by implication only when they are clearly and indubitably contradictory, when they are in irreconcilable conflict with each other, and when they cannot reasonably stand together. Sutton v. Garmon, 245 Ga. 685 , 266 S.E.2d 497 , 1980 Ga. LEXIS 894 (1980).

Statutory remedy in derogation of the common law must be strictly pursued. Haralson v. Speer, 1 Ga. App. 573 , 58 S.E. 142 , 1907 Ga. App. LEXIS 44 (1907); Seaboard Air-Line Ry. v. Bishop, 132 Ga. 71 , 63 S.E. 1103 , 1909 Ga. LEXIS 45 (1909).

Each case involving judicial transaction of sections stands on own facts. —

A section involving civil law is frequently a compendium of the legal technique involved in the subject matter in question. The translation of sections is reflected by the courts in decisions rendered relative to the sections and are sometimes seemingly paradoxical, but a sincere student of the law will be able to readily discern and agree that in many fields of law each case must stand upon its own facts. Bromberg v. Drake, 91 Ga. App. 118 , 85 S.E.2d 160 , 1954 Ga. App. LEXIS 876 (1954).

Construction is not for jury. —

What is proper construction to be given to a statute is for court and not for jury. City of Fitzgerald v. Newcomer, 162 Ga. App. 646 , 291 S.E.2d 766 , 1982 Ga. App. LEXIS 2276 (1982).

Legislative Intent

Courts must look diligently for intention of the General Assembly in enacting the legislation under review. Vickery v. Foster, 74 Ga. App. 167 , 39 S.E.2d 90 , 1946 Ga. App. LEXIS 479 (1946), rev'd, 202 Ga. 55 , 42 S.E.2d 117 , 1947 Ga. LEXIS 356 (1947).

The cardinal rule for the construction of statutes is to try to ascertain the intent of the General Assembly. Lamons v. Yarbrough, 206 Ga. 50 , 55 S.E.2d 551 , 1949 Ga. LEXIS 611 (1949).

The cardinal rule to guide the construction of law is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose. City of Jesup v. Bennett, 226 Ga. 606 , 176 S.E.2d 81 , 1970 Ga. LEXIS 609 (1970); Hollowell v. Jove, 247 Ga. 678 , 279 S.E.2d 430 , 1981 Ga. LEXIS 849 (1981).

The cardinal rule in the construction of statutes is to look for the intention of the General Assembly, and the intention when ascertained must be carried into effect. Moss v. Bishop, 235 Ga. 616 , 221 S.E.2d 38 , 1975 Ga. LEXIS 944 (1975), overruled, Shaheen v. Dunaway Drug Stores, Inc., 246 Ga. 790 , 273 S.E.2d 158 , 1980 Ga. LEXIS 1284 (1980).

It is the duty of courts in the construction of statutes to give effect to the intention of the General Assembly when it is ascertainable. Parker v. Ryder Truck Lines, 150 Ga. App. 163 , 257 S.E.2d 18 , 1979 Ga. App. LEXIS 2167 (1979).

The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. Board of Trustees v. Christy, 246 Ga. 553 , 272 S.E.2d 288 , 1980 Ga. LEXIS 1192 (1980), overruled in part, Mayor & Aldermen of Savannah v. Stevens, 278 Ga. 166 , 598 S.E.2d 456 , 2004 Ga. LEXIS 474 (2004).

It is fundamental that courts must look to the purpose and intent of the General Assembly and construe the law to implement that intent. Wilson v. Board of Regents, 246 Ga. 649 , 272 S.E.2d 496 , 1980 Ga. LEXIS 1238 (1980).

In interpreting statutes, courts must look for the intent of the legislature and construe statutes to effectuate that intent; all words, except words of art, shall be given their ordinary significance. City of Roswell v. City of Atlanta, 261 Ga. 657 , 410 S.E.2d 28 , 1991 Ga. LEXIS 852 (1991).

Construction of a statute must square with common sense and sound reasoning. Blalock v. State, 166 Ga. 465 , 143 S.E. 426 , 1928 Ga. LEXIS 329 (1928).

Language in an ordinance will be given a reasonable and sensible interpretation in order to carry out the legislative intent and render an ordinance valid. Mayor of Hapeville v. Anderson, 246 Ga. 786 , 272 S.E.2d 713 , 1980 Ga. LEXIS 1282 (1980).

When section plain and positive, court cannot construe legislative intent. —

Just as is the rule in construing statutes, where a section is plain, unambiguous, and positive, and is not capable of two constructions, the court is not authorized to construe it according to what is supposed to be the intention of the General Assembly. Atlanta & W. Point R.R. v. Wise, 190 Ga. 254 , 9 S.E.2d 63 , 1940 Ga. LEXIS 439 (1940).

Courts are not controlled by literal meaning of law in arriving at intention of General Assembly. State v. Brantley, 147 Ga. App. 569 , 249 S.E.2d 365 , 1978 Ga. App. LEXIS 2780 (1978).

Intention of the General Assembly, when discovered, shall prevail. Akin v. Freeman, 49 Ga. 51 , 1873 Ga. LEXIS 306 (1873).

Statutes are not contracts, and it is intent of the General Assembly and not of any other “party” which is decisive in their construction. City of Fitzgerald v. Newcomer, 162 Ga. App. 646 , 291 S.E.2d 766 , 1982 Ga. App. LEXIS 2276 (1982).

When intention is ascertained, it governs, and mere letter of statute must yield to spirit. Roberts v. State, 4 Ga. App. 207 , 60 S.E. 1082 , 1908 Ga. App. LEXIS 245 (1908). see also Demere v. Germania Bank, 116 Ga. 317 , 42 S.E. 488 , 1902 Ga. LEXIS 93 (1902); Youmans v. State, 7 Ga. App. 101 , 66 S.E. 383 , 66 S.E. 386 , 1909 Ga. App. LEXIS 553 (1909).

Intention governs and this is true even though some of the verbiage may have to be eliminated from the text. Washington v. Atlantic Coast Line R.R., 136 Ga. 638 , 71 S.E. 1066 , 1911 Ga. LEXIS 165 (1911).

The intention of the General Assembly is the cardinal guide to a construction of statutes, and when it is plainly collected, it should be carried into effect, though contrary to the literal sense of terms. Thacker v. Morris, 196 Ga. 167 , 26 S.E.2d 329 , 1943 Ga. LEXIS 322 (1943).

While all parts of a statute should be preserved, yet a cardinal rule of construction is that the legislative intent shall be effectuated, even though some verbiage may have to be eliminated. The legislative intent should prevail over the literal import of the words. Jones v. City of College Park, 223 Ga. 778 , 158 S.E.2d 384 , 1967 Ga. LEXIS 693 (1967).

The real legislative intention, when collected with certainty, will always, in statutes, prevail over the literal sense of terms. City of Jesup v. Bennett, 226 Ga. 606 , 176 S.E.2d 81 , 1970 Ga. LEXIS 609 (1970).

Statute not construed literally where legislative purpose defeated. —

An exception to the general rule that the use of plain and unequivocal language in a legislative enactment obviates any necessity for judicial construction is presented by the use of words the meaning of which in general acceptation is apparently obvious, and yet the purpose of the General Assembly would be defeated were the words employed construed literally. Bibb County v. Hancock, 211 Ga. 429 , 86 S.E.2d 511 , 1955 Ga. LEXIS 347 (1955).

Where to construe an Act of the General Assembly in a particular way would, while hewing to its literal terms, result in defeating the obvious legislative purposes and intent, such construction will not be given where an obvious typographical or clerical error can be corrected so as to carry out the intent. City of Jesup v. Bennett, 226 Ga. 606 , 176 S.E.2d 81 , 1970 Ga. LEXIS 609 (1970).

Courts may construe the language employed in the Act in connection with the context, and ascertain the legislative intent as derived from the old law, the evil, and the remedy, and will not defeat the intention and purpose of the General Assembly by giving effect to words which would render the purpose of the General Assembly in the passage of the enactment futile, unenforceable, or ineffectual. Board of Trustees v. Christy, 246 Ga. 553 , 272 S.E.2d 288 , 1980 Ga. LEXIS 1192 (1980), overruled in part, Mayor & Aldermen of Savannah v. Stevens, 278 Ga. 166 , 598 S.E.2d 456 , 2004 Ga. LEXIS 474 (2004).

Courts obligated to refrain from ascribing unreasonable intention to General Assembly. —

Even though the literal language of an Act may be plain and unequivocal, it is the duty of the courts, in determining the legislative intent, to refrain from ascribing to the General Assembly a wholly unreasonable intention or an intention to do a futile and useless thing. City of Jesup v. Bennett, 226 Ga. 606 , 176 S.E.2d 81 , 1970 Ga. LEXIS 609 (1970).

It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute that will result in unreasonable or absurd consequences not contemplated by the General Assembly. GECC v. Brooks, 242 Ga. 109 , 249 S.E.2d 596 , 1978 Ga. LEXIS 1119 (1978).

A court may decline to give a legislative Act such construction as will attribute to the General Assembly an intention to pass an Act which is not reasonable, or as will defeat the purpose of the proposed legislation. Board of Trustees v. Christy, 246 Ga. 553 , 272 S.E.2d 288 , 1980 Ga. LEXIS 1192 (1980), overruled in part, Mayor & Aldermen of Savannah v. Stevens, 278 Ga. 166 , 598 S.E.2d 456 , 2004 Ga. LEXIS 474 (2004).

Statute’s general language restrained where absurdity results. —

To give effect to the intention of the General Assembly, courts are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof. Where the letter of the statute results in absurdity or injustice or would lead to contradictions, the meaning of general language may be restrained by the spirit or reason of the statute. Sirmans v. Sirmans, 222 Ga. 202 , 149 S.E.2d 101 , 1966 Ga. LEXIS 438 (1966).

Preservation of Act preferred. —

It is the duty of the court to arrive at the legislative intent, and, in doing so, it should not adopt an arbitrary rule that the General Assembly intended to make a typographical or clerical error, the result of which would be to make nonsense of the Act and not carry out the legislative scheme, but to destroy it. Lamons v. Yarbrough, 206 Ga. 50 , 55 S.E.2d 551 , 1949 Ga. LEXIS 611 (1949).

The construction of a statute which will give effect to legislative intent and preserve the Act is preferred to a construction which will necessarily destroy it. Webb v. Echols, 211 Ga. 724 , 88 S.E.2d 625 , 1955 Ga. LEXIS 441 (1955).

Statute’s intent not defeated where mistaken reference to another statute. —

In case of a mistake in a reference in a statute to another statute, where the real intent of the General Assembly is manifest and would be defeated by an adherence to the terms of the mistaken reference, and the Act is otherwise a complete Act within itself, the mistaken reference will be regarded as surplusage, or will be read and corrected, in order to give effect to the legislative intent. Humthlett v. Reeves, 211 Ga. 210 , 85 S.E.2d 25 , 1954 Ga. LEXIS 401 (1954).

Where an Act references another statute by mistake, such error will not defeat the Act if the intent of the legislation is clear. Wilson v. Board of Regents, 246 Ga. 649 , 272 S.E.2d 496 , 1980 Ga. LEXIS 1238 (1980).

Legislation’s scheme and purport criterion for determining enactment’s meaning. —

One proper criterion for determining the meaning of a legislative enactment is to consider the general scheme and purport of the proposed legislation. Pennington & Evans v. Douglas, A. & G. Ry., 3 Ga. App. 665 , 60 S.E. 485 , 1908 Ga. App. LEXIS 407 (1908).

Old law, mischief, and remedy considered at arriving at legislative intention. —

This section directs that statutes be construed with reference to the intention of the General Assembly, and that the old law, the mischief, and the remedy be considered to arrive at that intention. Everett v. Planters' Bank, 61 Ga. 38 , 1878 Ga. LEXIS 13 (1878); Mott v. Central R.R., 70 Ga. 680 , 1883 Ga. LEXIS 396 (1883); Barrett & Caswell v. Pulliam, 77 Ga. 552 , 1866 Ga. LEXIS 224 (1866); Price Co. v. City of Atlanta, 105 Ga. 358 , 31 S.E. 619 , 1898 Ga. LEXIS 516 (1898); Hazlehurst v. Seaboard Air-Line Ry., 118 Ga. 858 , 45 S.E. 703 , 1903 Ga. LEXIS 740 (1903); Sullivan v. Curling, 149 Ga. 96 , 99 S.E. 533 , 1919 Ga. LEXIS 145 (1919); Georgia Ry. & Elec. Co. v. Town of Decatur, 29 Ga. App. 653 , 116 S.E. 645 , 1923 Ga. App. LEXIS 152 (1923).

To ascertain the intention of the General Assembly, after examining the words of the Act itself, it is necessary to take into view every fact and circumstance that influenced its passage. The court must consider what the law was before, the mischiefs against which the law did not provide, the nature of the remedy proposed, and the true reason of the remedy. McGuire v. McGuire, 228 Ga. 782 , 187 S.E.2d 859 , 1972 Ga. LEXIS 907 (1972).

Where section codified from court decision, construed to conform to existing law. —

Where a section has been codified from a decision of the Supreme Court or of the Court of Appeals, the section will be construed, insofar as is compatible with its terms, so as to conform to the then existing law. Atlanta & W. Point R.R. v. Wise, 190 Ga. 254 , 9 S.E.2d 63 , 1940 Ga. LEXIS 439 (1940).

Act as enrolled controls over appearance in printed volume. —

Where there is a conflict between the language of an Act of the General Assembly as it is enrolled and as it appears in the volume published by the public printer, the former controls. Bass v. Doughty, 5 Ga. App. 458 , 63 S.E. 516 , 1909 Ga. App. LEXIS 23 (1909).

General Assembly’s intention derivable from Acts caption. —

Nothing is better settled than that the intention of the General Assembly in the passage of a law is derivable as well from the caption of the Act as from the body of the Act itself. Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130 , 105 S.E. 629 , 1921 Ga. App. LEXIS 21 (1921).

All words of General Assembly, however numerous, ought to be preserved, and effect given to whole, if it can be done. No doubt courts could sometimes better legislation by rejecting some of the words delivered to them by the General Assembly for construction, but to do this, courts have no power. Butterworth v. Butterworth, 227 Ga. 301 , 180 S.E.2d 549 , 1971 Ga. LEXIS 679 (1971).

All words of General Assembly, however numerous, ought to be preserved, and effect given to whole, if it can be done. No doubt courts could sometimes better legislation by rejecting some of the words delivered to them by the General Assembly for construction, but to do this, courts have no power. Butterworth v. Butterworth, 227 Ga. 301 , 180 S.E.2d 549 , 1971 Ga. LEXIS 679 (1971).

In the construction of a statute the legislative intent must be determined from a consideration of it as a whole. Board of Trustees v. Christy, 246 Ga. 553 , 272 S.E.2d 288 , 1980 Ga. LEXIS 1192 (1980), overruled in part, Mayor & Aldermen of Savannah v. Stevens, 278 Ga. 166 , 598 S.E.2d 456 , 2004 Ga. LEXIS 474 (2004).

Larger and more extensive statutory expression controls. —

Where a particular expression in one part of a statute is not so extensive or large in its import as other expressions in the same statute, it must yield to the larger and more extensive expression, where the latter embodies the real intent of the General Assembly. Board of Trustees v. Christy, 246 Ga. 553 , 272 S.E.2d 288 , 1980 Ga. LEXIS 1192 (1980), overruled in part, Mayor & Aldermen of Savannah v. Stevens, 278 Ga. 166 , 598 S.E.2d 456 , 2004 Ga. LEXIS 474 (2004).

Where there is apparent conflict between different sections of same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another, and if they cannot be so reconciled, the one which best conforms to the legislative intent must stand. Board of Trustees v. Christy, 246 Ga. 553 , 272 S.E.2d 288 , 1980 Ga. LEXIS 1192 (1980), overruled in part, Mayor & Aldermen of Savannah v. Stevens, 278 Ga. 166 , 598 S.E.2d 456 , 2004 Ga. LEXIS 474 (2004).

One of two provisos should not be rejected as senseless or superfluous. —

The rule of construction that effect is to be given to all the words of a statute forbids that two provisos should be treated as having no more scope or significance than one of them would have if standing alone. It is better to wait for a legislative amendment than to arbitrarily reject one of the provisos as senseless or superfluous. Butterworth v. Butterworth, 227 Ga. 301 , 180 S.E.2d 549 , 1971 Ga. LEXIS 679 (1971).

Severability clause creates presumption of separability. —

The presence of a severability clause in an Act reverses the usual presumption that the General Assembly intends the Act to be an entirety and creates an opposite presumption of separability. City Council v. Mangelly, 243 Ga. 358 , 254 S.E.2d 315 , 1979 Ga. LEXIS 908 (1979).

Legislative intent may be gathered from construing together section and Acts affecting it. Commissioners of Rds. & Revenues v. Burns, 118 Ga. 112 , 44 S.E. 828 , 1903 Ga. LEXIS 467 (1903).

Statutes “in pari materia” construed together. —

It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject matter, briefly called statutes “in pari materia,” are construed together and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto. Ryan v. Commissioners of Chatham County, 203 Ga. 730 , 48 S.E.2d 86 , 1948 Ga. LEXIS 390 (1948).

In the construction of a statute, all laws in pari materia should be considered in order to ascertain the intention of the General Assembly. Undercofler v. L.C. Robinson & Sons, 111 Ga. App. 411 , 141 S.E.2d 847 , 1965 Ga. App. LEXIS 986, aff'd, 221 Ga. 391 , 144 S.E.2d 755 , 1965 Ga. LEXIS 472 (1965).

Except where language clear. —

Statutes in pari materia may not be resorted to where language under consideration is clear, but where the terms of the statute to be construed are ambiguous or its significance is of a doubtful character, it becomes necessary to give proper consideration to other related statutes in order to ascertain the legislative intent in reference to the whole system of laws of which the doubtful statute is a part. Butterworth v. Butterworth, 227 Ga. 301 , 180 S.E.2d 549 , 1971 Ga. LEXIS 679 (1971).

Unclear law construed in light of whole system of laws. —

While the Supreme Court recognizes the rule that statutes in pari materia may not be resorted to where the language of the statute under consideration is clear, it is equally as well settled that, where the terms of the statute to be construed are ambiguous or its significance is of a doubtful character, it becomes necessary to give proper consideration to other related statutes in order to ascertain the legislative intent in reference to the whole system of laws of which the doubtful statute is a part. Ryan v. Commissioners of Chatham County, 203 Ga. 730 , 48 S.E.2d 86 , 1948 Ga. LEXIS 390 (1948).

Penal statutes are strictly construed, yet not so as to defeat General Assembly’s intention. Holland v. State, 34 Ga. 455 , 1866 Ga. LEXIS 125 (1866); . see also Atlantic Coast Line R.R. v. State, 135 Ga. 545 , 69 S.E. 725 , 1910 Ga. LEXIS 28 (1910), aff'd, 234 U.S. 280, 34 S. Ct. 829 , 58 L. Ed. 1312 , 1914 U.S. LEXIS 1149 (1914).

It is general rule that tax laws are strictly construed against government and in favor of the citizen (Georgia Paper Stock Co. v. State Tax Bd., 174 Ga. 816 , 164 S.E. 197 (1932)); but the cardinal rule is to ascertain the intention of the General Assembly in passing the legislation. O'Neal v. Whitley, 177 Ga. 491 , 170 S.E. 376 , 1933 Ga. LEXIS 337 (1933).

Purpose of new civil procedure provision to speed up civil actions. —

One of the evils of the old law of civil procedure was that it was regarded as being too slow, and one of the purposes of the new law is to speed up civil actions. Scott v. State, 75 Ga. App. 684 , 44 S.E.2d 391 , 1947 Ga. App. LEXIS 617 (1947).

Appropriation Act referring to unenacted authorizing bill. —

Where, in enacting a line item of the “General Appropriations Act,” reference was made to an authorizing senate bill which was never enacted, but the legislative history was clear that the principles of that bill were enacted into law under a bill by another number and became former Code 1933, § 88-1825 (see now O.C.G.A. § 31-7-95), the Act was valid. Wilson v. Board of Regents, 246 Ga. 649 , 272 S.E.2d 496 , 1980 Ga. LEXIS 1238 (1980).

Construction with homestead exemption statute. —

Chapter 7 trustee’s objection to a debtor’s claim for a $20,000 exemption in debtor’s residence under the Georgia homestead exemption statute, O.C.G.A. § 44-13-100(a)(1), was overruled because: (1) O.C.G.A. § 1-3-1 did not invite a court to usurp the power of the General Assembly by legislating from the bench each time the exemption statute created an unusual result; (2) the duration of the debtor’s separation from the debtor’s wife, while indicative of a desire to discontinue the traditional role of spouse, was not determinative of a circumstance that would authorize the court to consider such a person as an entity other than a “spouse” as used in the homestead exemption statute; and (3) there was no basis for inferring legislative intent to allow married couples, whether they lived together or separately, to spread a $20,000 exemption across multiple residences. In re Green, 319 Bankr. 913, 2004 Bankr. LEXIS 2197 (Bankr. M.D. Ga. 2004).

Construction with O.C.G.A. § 9-11-6 . —

Because the responding party timely responded to a summary judgment motion, pursuant to Ga. Unif. Super. Ct. R. 6.3, given the appellate court’s construction of both O.C.G.A. §§ 1-3-1 and 9-11-6 , the trial court erred in denying that the oral argument on the motion and in granting summary judgment to the movant. Green v. Raw Deal, Inc., 290 Ga. App. 464 , 659 S.E.2d 856 , 2008 Ga. App. LEXIS 347 (2008).

Words’ Signification

Enactment of legislation requiring judicial definitions constitutional. —

One of the traditional functions of courts is to interpret and construe legislative enactments. There is no due process prohibition on the enactment of legislation which requires definitions to be provided by the judiciary. Bell v. Barrett, 241 Ga. 103 , 243 S.E.2d 40 , 1978 Ga. LEXIS 883 (1978).

Statute’s words, if of common use, are taken in natural and ordinary signification. Price Co. v. City of Atlanta, 105 Ga. 358 , 31 S.E. 619 , 1898 Ga. LEXIS 516 (1898); Southern Bell Tel. & Tel. Co. v. Parker, 119 Ga. 721 , 47 S.E. 194 , 1904 Ga. LEXIS 345 (1904); Robinson v. State, 11 Ga. App. 847 , 76 S.E. 1061 , 1912 Ga. App. LEXIS 222 (1912); Gatlin v. State, 18 Ga. App. 9 , 89 S.E. 345 , 1916 Ga. App. LEXIS 71 (1916).

By the mandate of this section, the courts are required to give a word its ordinary signification. Thompson v. Eastern Air Lines, 200 Ga. 216 , 39 S.E.2d 225 , 1946 Ga. LEXIS 439 (1946).

The intention of the General Assembly is to be gathered from the statute as a whole so as to give effect to each of its parts and at the same time harmonize, if possible, the component parts, and in determining this intention, the words of the statute are to be given their ordinary and usual signification. In re Ga. Air, Inc., 345 F. Supp. 636, 1972 U.S. Dist. LEXIS 13075 (N.D. Ga. 1972).

Although a statute does not undertake to define each of the words contained therein, this will not automatically render the statute vague, indefinite, or uncertain in meaning, since the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter. Anderson v. Little & Davenport Funeral Home, 242 Ga. 751 , 251 S.E.2d 250 , 1978 Ga. LEXIS 1350 (1978).

Every word employed should be expounded in its plain, obvious, and commonsense meaning unless something else furnishes ground to control, qualify, or enlarge it. Wellborn v. Estes, 70 Ga. 390 , 1883 Ga. LEXIS 344 (1883) see also Booth v. Saffold, 46 Ga. 278 , 1872 Ga. LEXIS 53 (1872); Mott v. Central R.R., 70 Ga. 680 , 1883 Ga. LEXIS 396 (1883); Richmond & D.R.R. v. Howard, 79 Ga. 44 , 3 S.E. 426 , 1887 Ga. LEXIS 158 (1887).

Absent words of limitation, statutory words should be given ordinary and everyday meaning. Risser v. City of Thomasville, 248 Ga. 866 , 286 S.E.2d 727 , 1982 Ga. LEXIS 710 (1982).

In construing a constitutional provision, the ordinary signification shall be applied to words. Thomas v. MacNeill, 200 Ga. 418 , 37 S.E.2d 705 , 1946 Ga. LEXIS 298 (1946).

In construing statutes, their ordinary signification shall be applied to all words, except in certain defined cases. The same rule of construction is applicable to constitutional provisions. Jones v. Darby, 174 Ga. 71 , 161 S.E. 835 , 1931 Ga. LEXIS 16 (1931).

Construing statutory part out of context inadmissible. —

It is inadmissible to mutilate a statute by lifting a mere segment out of its context and construe it without consideration of all other parts of the Act. In re Ga. Air, Inc., 345 F. Supp. 636, 1972 U.S. Dist. LEXIS 13075 (N.D. Ga. 1972).

“Nominations from the floor shall always be in order” construed. —

The words “Nominations from the floor shall always be in order,” in a by-law are to be given their ordinary signification, and the plain and obvious meaning of the language employed is that nominations from the floor are always in order until an election has in fact been held. Hornady v. Goodman, 167 Ga. 555 , 146 S.E. 173 , 1928 Ga. LEXIS 193 (1928).

Term “common or contract carrier” should be given its ordinary signification in the construction of Ga. L. 1937, Ex. Sess., p. 259 (see now O.C.G.A. § 48-10-2(10)). Undercofler v. L.C. Robinson & Sons, 111 Ga. App. 411 , 141 S.E.2d 847 , 1965 Ga. App. LEXIS 986, aff'd, 221 Ga. 391 , 144 S.E.2d 755 , 1965 Ga. LEXIS 472 (1965).

“Bona fide” meant genuine or real. —

Services provided by an emergency room physician to a patient who presented with a high pressure puncture wound to one hand were “bona fide emergency services” under O.C.G.A. § 51-1-29.5(a)(5), because they were genuine or actual; it was not required that the services be provided in good faith. Abdel-Samed v. Dailey, 294 Ga. 758 , 755 S.E.2d 805 , 2014 Ga. LEXIS 198 (2014).

Newspaper headquartered in another state not “published within the county”. —

County officials’ decision under O.C.G.A. § 9-13-142 to change the county’s legal organ to a newspaper that was headquartered across the state line in Tennessee was properly enjoined by the trial court because the paper was edited, formatted, and issued in Tennessee; it was not “published within the county” as required by § 9-13-142(a) . Catoosa County v. Rome News Media, LLC, 349 Ga. App. 123 , 825 S.E.2d 507 , 2019 Ga. App. LEXIS 119 (2019).

A riding lawnmower was not a “motor vehicle” as that term was used in the statute punishing theft of a motor vehicle, O.C.G.A. § 16-8-12(a)(5)(A); a defendant’s conviction was reversed. A motor vehicle was defined by the court for purposes of § 16-8-12(a)(5)(A) as a self-propelled vehicle with wheels that was designed to be used, or was ordinarily used, to transport people or property on roads. Harris v. State, 286 Ga. 245 , 686 S.E.2d 777 , 2009 Ga. LEXIS 735 (2009).

Statutory words are not given ordinary meaning when legislative purpose would be frustrated. —

Assuming an ascertainable legislative intention, words should be construed so as to give full effect thereto. Bohannon v. Manhattan Life Ins. Co., 555 F.2d 1205, 1977 U.S. App. LEXIS 12470 (5th Cir. 1977).

Use of experts. —

It is proper to use experts to give the definition of words of art or words connected with a particular trade or subject matter, such as the correct name for a narcotic. Williamson v. State, 134 Ga. App. 864 , 216 S.E.2d 684 , 1975 Ga. App. LEXIS 2200 (1975).

Substantial Statutory Compliance

Statute directory where no negative words nor injuries resulting from disregard. —

Where a statute directs the doing of a thing in a certain time, without any negative words restraining the doing of it afterwards, generally the provision as to time is directory and not a limitation of authority; and in such case, where no injury appears to have resulted, the fact that the Act was performed after the time limit will not render it invalid. O'Neal v. Spencer, 203 Ga. 588 , 47 S.E.2d 646 , 1948 Ga. LEXIS 371 (1948); State v. Battise, 177 Ga. App. 583 , 340 S.E.2d 240 , 1986 Ga. App. LEXIS 1477 (1986); Moreton Rolleston, Jr., Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405 , 523 S.E.2d 600 , 1999 Ga. App. LEXIS 1366 (1999), cert. denied, No. S00C0270, 2000 Ga. LEXIS 97 (Ga. Feb. 11, 2000).

Generally, statutes directing the mode of proceeding by public officers, designated to promote method, system uniformity, and dispatch in such proceedings, will be regarded as directory if a disregard thereof will not injure the rights of parties, and the statute does not declare what result shall follow noncompliance therewith, nor contain negative words importing a prohibition of any other mode of proceeding than that prescribed. Collins v. Nix, 125 Ga. App. 520 , 188 S.E.2d 235 , 1972 Ga. App. LEXIS 1392 (1972); State v. Battise, 177 Ga. App. 583 , 340 S.E.2d 240 , 1986 Ga. App. LEXIS 1477 (1986).

Substantial compliance by public officers with statutory requirements shall be deemed sufficient. Hart v. Columbus, 125 Ga. App. 625 , 188 S.E.2d 422 , 1972 Ga. App. LEXIS 1429 (1972).

Reasonable care insufficient. —

Where a substantial compliance with a statute by a railway company would be sufficient, the duty of compliance to that extent would be absolute, and the company would not have discharged the duty merely by the exercise of reasonable care to that end. Lime-Cola Bottling Co. v. Atlanta & W. Point R.R., 34 Ga. App. 103 , 128 S.E. 226 , 1925 Ga. App. LEXIS 51 (1925).

Question of substantial compliance not for jury. —

It should not be left to the jury to determine whether a party could or could not substantially comply with the law. Lime-Cola Bottling Co. v. Atlanta & W. Point R.R., 34 Ga. App. 103 , 128 S.E. 226 , 1925 Ga. App. LEXIS 51 (1925).

Statement of costs prepared by judge complies with section. —

A statement of costs on record in the court, prepared by the ordinary (now probate court judge), furnished a substantial compliance with the requirements of this section. Cooper v. Lunsford, 203 Ga. 166 , 45 S.E.2d 395 , 1947 Ga. LEXIS 559 (1947).

Substantial compliance with respect to issuing and serving of process will be sufficient, and where notice is given, no technical or formal objection shall invalidate any process. Gainesville Feed & Poultry Co. v. Waters, 87 Ga. App. 354 , 73 S.E.2d 771 , 1952 Ga. App. LEXIS 686 (1952).

It is sufficient if provisions of O.C.G.A. § 5-6-38 are substantially complied with in the notification of appeal process. Oller v. State, 187 Ga. App. 818 , 371 S.E.2d 455 , 1988 Ga. App. LEXIS 874 (1988).

Substantial compliance with registration requirement. —

Trial court erred in granting a motion to dismiss for failure to have a certificate of authority at the time the complaint was filed since the plaintiff substantially complied with the registration requirements for a foreign corporation by obtaining a certificate of authority later. Health Horizons, Inc. v. State Farm Mut. Auto. Ins. Co., 239 Ga. App. 440 , 521 S.E.2d 383 , 1999 Ga. App. LEXIS 1040 (1999), cert. denied, No. S99C1715, 2000 Ga. LEXIS 35 (Ga. Jan. 14, 2000).

Substantial compliance with Georgia Historic Preservation Act. —

Because the Georgia Historic Preservation Act (HPA), O.C.G.A. § 44-1-20 et seq., does not expressly provide that a county’s failure to strictly comply with the HPA’s uniform procedures invalidates an ordinance adopted thereunder, and because the developers failed to show the developers were harmed by the county’s alleged failure to strictly comply with the procedures of the HPA, the trial court properly applied the “substantial compliance” standard of review. Buckler v. DeKalb County Bd. of Comm'rs, 299 Ga. App. 465 , 683 S.E.2d 22 , 2009 Ga. App. LEXIS 825 (2009), cert. denied, No. S09C2027, 2010 Ga. LEXIS 3 (Ga. Jan. 12, 2010).

No prejudice to substantive right as consequence of administrative continuance of hearing. —

See Hardison v. Fayssoux, 168 Ga. App. 398 , 309 S.E.2d 397 , 1983 Ga. App. LEXIS 2788 (1983).

Notice to policyholders. —

Evidence that mass mailings were sent to several thousands of policyholders by an insurance company was not substantial compliance with a statutory requirement that optional no-fault insurance coverage was expressly offered to a particular insured. Shave v. Allstate Ins. Co., 549 F. Supp. 1006, 1982 U.S. Dist. LEXIS 15241 (S.D. Ga. 1982).

Tax refund. —

The notice of a tax refund claim filed pursuant to O.C.G.A. § 48-5-380 was not deficient, where the notice clearly stated a summary of grounds upon which the taxpayer relied. There is no requirement that the summary of grounds must be the exact grounds upon which refund is ultimately authorized; the notice was in substantial compliance with § 48-5-380 . City of College Park v. Atlantic S.E. Airlines, 194 Ga. App. 637 , 391 S.E.2d 460 , 1990 Ga. App. LEXIS 254 (1990).

Substantial compliance not sufficient when statute is unambiguous. —

Court of Appeals erred when the court held that a judgment creditor’s notification of a judgment debtor of a garnishment eight business days after service of the garnishee substantially complied with O.C.G.A. § 18-4-64(a)(7)’s requirement that notice be given within three business days. O.C.G.A. § 1-3-1 did not apply because the statute was unambiguous. Cook v. NC Two, L.P., 289 Ga. 462 , 712 S.E.2d 831 , 2011 Ga. LEXIS 542 (2011).

Substantial compliance with legitimation statute, O.C.G.A. § 19-7-22 . —

Trial court abused the court’s discretion by denying a putative biological father’s motion to sever his petition for legitimation of a son from a husband’s adoption proceeding because the father’s petition substantially complied with the substance of the legitimation statute, O.C.G.A. § 19-7-22 ; the petition contained the requisite information, it was served on the wife, and it was timely filed in the proper court, and the father’s failure to file his petition as a separate civil action caused no prejudice to anyone. Brewton v. Poss, 316 Ga. App. 704 , 728 S.E.2d 837 , 2012 Ga. App. LEXIS 524 (2012).

Substantial compliance with describing emergency under O.C.G.A. § 36-91-22 . —

City was not required to obtain a payment bond in compliance with O.C.G.A. § 36-91-90 because the requirement did not apply to emergency projects, O.C.G.A. § 36-91-22(e) ; the city’s description in the city’s minutes of the “emergency replacement of a 10-inch sanitary sewer main on Embassy Drive” was sufficient to describe the nature of the emergency. City of College Park v. Sekisui SPR Ams., LLC, 331 Ga. App. 404 , 771 S.E.2d 101 , 2015 Ga. App. LEXIS 177 (2015), cert. denied, No. S15C1141, 2015 Ga. LEXIS 471 (Ga. June 15, 2015).

Bonds

Writing treated as official statutory bond. —

A writing, subscribed by the tax collector and several others, intended to be used and treated as the official bond required of the collector, though not under seal, is, by virtue of this section, to be treated as though it were the official statutory bond. Dedge v. Branch, 94 Ga. 37 , 20 S.E. 657 , 1894 Ga. LEXIS 6 (1894).

Certiorari bond need not be under seal. A.R. King & Co. v. Cantrell, 4 Ga. App. 263 , 61 S.E. 144 , 1908 Ga. App. LEXIS 258 (1908).

If sheriff’s official bond were not under seal, it might be good under this section, but a different statute of limitations might possibly apply. Harris v. Black, 143 Ga. 497 , 85 S.E. 742 , 1915 Ga. LEXIS 498 (1915).

New, written, signed agreement required to renew bond. —

A new agreement is required in order to effectuate a renewal of the original bond, and the new agreement is inadequate for that purpose unless it, like the bond, is in writing and signed by the fidelity company. Nowell v. Mayor of Monroe, 177 Ga. 648 , 171 S.E. 136 , 1933 Ga. LEXIS 382 (1933).

Securities name need not appear in bond. —

See Chapple v. Tucker, 110 Ga. 467 , 35 S.E. 643 , 1900 Ga. LEXIS 560 (1900).

Census

Most recent United States decennial census is rational, logical, and consistent means of determining population when the word “census” is used in a statute or ordinance. Mayor of Hapeville v. Anderson, 246 Ga. 786 , 272 S.E.2d 713 , 1980 Ga. LEXIS 1282 (1980).

Computation of Time

Provision as to time as directory. —

Where a statute directs the doing of a thing in a certain time, without any negative words restraining the doing of it afterwards, generally the provision as to time is directory and not a limitation of authority, and in such case, where no injury appears to have resulted, the fact that the act was performed after the time limit will not render it invalid. Middleton v. Moody, 216 Ga. 237 , 115 S.E.2d 567 , 1960 Ga. LEXIS 436 (1960); Collins v. Nix, 125 Ga. App. 520 , 188 S.E.2d 235 , 1972 Ga. App. LEXIS 1392 (1972).

Effect of 1985 amendment on prior cases. —

When the Georgia General Assembly amended O.C.G.A. § 1-3-1(d)(3) in 1985, inserting “the first day shall not be counted but the last day shall be counted”, the line of pre-1985 cases standing for the proposition that the statute of limitations runs on the two year anniversary of an accident was overruled. Gardner v. Hyster Co., 785 F. Supp. 161, 1992 U.S. Dist. LEXIS 2146 (M.D. Ga. 1992).

When days are to be computed, this provision is applied, and only the first or last day counted, and the last day excluded if it falls on Sunday. McLendon v. State, 14 Ga. App. 274 , 80 S.E. 692 , 1914 Ga. App. LEXIS 209 (1914) (decided prior to 1985 amendment providing that the first day not be counted but that the last day shall be counted).

General rule of computation which requires the exclusion of the first day and the inclusion of the last has been made the statutory rule of construction in this state. Tift v. City of Tifton, 214 Ga. 507 , 105 S.E.2d 584 , 1958 Ga. LEXIS 474 (1958) (decided prior to 1985 amendment providing that the first day not be counted but that the last day shall be counted).

Period of time anterior to commencement of action. —

When a computation of a period of time that is anterior to the commencement of an action is required, O.C.G.A. § 1-3-1 is the proper method of computation. Southern Trust Ins. Co. v. First Fed. Sav. & Loan Ass'n, 168 Ga. App. 899 , 310 S.E.2d 712 , 1983 Ga. App. LEXIS 2949 (1983).

Computing number of days for privilege or discharge. —

When a number of days is prescribed by law for the exercise of a privilege, or the discharge of a duty, only the first or the last day shall be counted, and in computing the number of days, the first or the last day should be excluded. Sullivan v. Smith, 209 Ga. 325 , 72 S.E.2d 318 , 1952 Ga. LEXIS 535 (1952) (decided prior to 1985 amendment providing that the first day not be counted but that the last day shall be counted).

Only the first or the last day shall be counted, not both. Blitch v. Brewer, 83 Ga. 333 , 9 S.E. 837 , 1889 Ga. LEXIS 61 (1889) (decided prior to 1985 amendment providing that the first day not be counted but that the last day shall be counted).

Either the first or the last day must be figured in the computation, but not both of them. Brown v. City of Atlanta, 84 Ga. App. 4 , 65 S.E.2d 611 , 1951 Ga. App. LEXIS 616 (1951) (decided prior to 1985 amendment providing that the first day not be counted but that the last day shall be counted).

In computing the time prescribed for the exercising of a privilege or the discharge of a duty, only the first or the last day shall be counted. One or the other, however, must be counted, and it is not intended that both may be left out of the computation. First Nat'l Bank v. Mann, 211 Ga. 706 , 88 S.E.2d 361 , 1955 Ga. LEXIS 436 (1955) (decided prior to 1985 amendment providing that the first day not be counted but that the last day shall be counted).

Sunday is not a day in law. Brooks v. Hicks, 230 Ga. 500 , 197 S.E.2d 711 , 1973 Ga. LEXIS 965 (1973).

If last day Sunday, then have until Monday. —

Trial court did not abuse the court’s discretion in setting aside a default judgment entered in favor of former police officers under O.C.G.A. § 9-11-60(d) because the default judgment was entered despite the fact that the record disclosed that a pension fund board of trustees timely answered the complaint and, thus, there was no basis upon which to claim a default judgment; the board’s answer was filed 31 days after service, but because that day was a Monday and the 30th day after service fell on a Sunday, under O.C.G.A. § 1-3-1(d)(3), the answer was timely. Stamey v. Policemen's Pension Fund Bd. of Trs., 289 Ga. 503 , 712 S.E.2d 825 , 2011 Ga. LEXIS 552 (2011).

Although the defendant’s notice of appeal was filed 31 days after the entry of the last order appealed from, the filing was timely because the 30th day fell on a Sunday. Anderson v. State, 335 Ga. App. 78 , 778 S.E.2d 826 , 2015 Ga. App. LEXIS 600 (2015), cert. denied, No. S16C0630, 2016 Ga. LEXIS 294 (Ga. Apr. 4, 2016).

Sunday makes no difference where nothing to be done. —

Where there was nothing to be done on the last day, it makes no difference that it fell on the Sabbath. Merritt v. Gate City Nat'l Bank, 100 Ga. 147 , 27 S.E. 979 , 1897 Ga. LEXIS 16 (1897).

If last day allowed for act is both holiday and Sabbath, following Monday is included. Wood v. State, 12 Ga. App. 651 , 78 S.E. 140 , 1913 Ga. App. LEXIS 686 (1913).

Day of grace is given to party upon whom the duty is imposed, not to the other party. Gray v. Quality Fin. Co., 130 Ga. App. 762 , 204 S.E.2d 483 , 1974 Ga. App. LEXIS 1252 (1974).

Service cannot be made, or legal notice given, on Sunday, or the business or work of ordinary callings done. Sawyer v. Cargile, 72 Ga. 290 , 1884 Ga. LEXIS 257 (1884).

Document’s filing on Monday following last day on Sunday within time prescribed. —

Thirty days after the adjournment of court being allowed for the filing of the document, and the last day falling on Sunday, the filing on Monday was within the time prescribed. Page v. Blackshear, 75 Ga. 885 , 1885 Ga. LEXIS 267 (1885).

The 30-day period for filing notice of appeal allowed by O.C.G.A. § 5-6-38(a) ended on November 5, a Saturday, and by operation of O.C.G.A. § 1-3-1 , the appellant had through the following Monday, November 7, to file a timely notice of appeal, but despite the fact that the notice of appeal was dated November 7, it was not filed until November 8. Stancil v. Kendrix, 189 Ga. App. 909 , 378 S.E.2d 417 , 1989 Ga. App. LEXIS 69 (1989).

Where the computation is of months or years, this section is not applicable, Sundays are not excluded, and the right is lost unless invoked on or before the day last preceding the day of the month or year corresponding to the day upon which the right accrued. McLendon v. State, 14 Ga. App. 274 , 80 S.E. 692 , 1914 Ga. App. LEXIS 209 (1914).

This section does not apply where bar is in terms of years or months rather than in days. Thomas v. Couch, 171 Ga. 602 , 156 S.E. 206 , 1930 Ga. LEXIS 517 (1930).

This section does not apply where months and years are to be computed. Davis v. U.S. Fid. & Guar. Co., 119 Ga. App. 374 , 167 S.E.2d 214 , 1969 Ga. App. LEXIS 1106 (1969).

The provisions of this section do not apply to limitations expressed in months or years. Veal v. Paulk, 121 Ga. App. 575 , 174 S.E.2d 465 , 1970 Ga. App. LEXIS 1285 (1970).

This section applies only where days are to be counted, and where months and years are to be considered, the rule is not applicable. Gray v. Quality Fin. Co., 130 Ga. App. 762 , 204 S.E.2d 483 , 1974 Ga. App. LEXIS 1252 (1974).

This section applies only to limitations in terms of days. It does not apply where the limitation is in terms of months or years. Allstate Ins. Co. v. Stephens, 239 Ga. 717 , 238 S.E.2d 382 , 1977 Ga. LEXIS 1310 (1977).

Error in calculation of time for service. —

Trial court erred in calculating the five-day period under O.C.G.A. § 9-11-4(c) for service of a client’s complaint because the provisions of O.C.G.A. § 1-3-1(d)(3) applied since the five-day requirement was less than seven days; because the client filed the complaint on Friday, August 14, 2009, the client had until Friday, August 21, 2009 in which to achieve service in accordance with O.C.G.A. § 9-11-4(c) since the intervening Saturday and Sunday, August 15 and 16, 2009, were excluded from the calculation of the five-day period. Cleveland v. Katz, 311 Ga. App. 880 , 717 S.E.2d 500 , 2011 Ga. App. LEXIS 870 (2011), 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), overruled in part, Van Omen v. Lopresti, 357 Ga. App. 9 , 849 S.E.2d 758 , 2020 Ga. App. LEXIS 554 (2020).

Not applicable to limitation fixed for filing workers’ compensation claim. —

The provisions of this section, to the effect that when a number of days is prescribed for the exercise of any privilege and the last day shall fall on a Saturday or Sunday, the party having the privilege shall have through the following Monday to exercise it, do not apply to limitations expressed in months or years and to the limitation fixed for filing a workers’ compensation claim. Chevrolet Parts Div., GMC v. Harrell, 100 Ga. App. 280 , 111 S.E.2d 104 , 1959 Ga. App. LEXIS 595 (1959).

When a limitation of years is imposed, expiration takes place at end of yearly period without giving additional consideration to when the last day falls. Gray v. Quality Fin. Co., 130 Ga. App. 762 , 204 S.E.2d 483 , 1974 Ga. App. LEXIS 1252 (1974).

Section inapplicable where construction of word “between” not required. —

Where the word “between” is not subject to interpretation and does not require a construction of the statute, this section has no application. Henderson v. Henderson, 206 Ga. 23 , 55 S.E.2d 578 , 1949 Ga. LEXIS 620 (1949).

Service of process provision not qualified. —

This section does not qualify that part of Code which requires service of process to be consummated at least 15 days before the term, or if it does, that its operation is to add to, and not subtract from, the number of days specified. There is little probability that, where Sunday intervenes, the Code intended to take a day away from a party and give it to the sheriff. Hood v. Powers, 57 Ga. 244 , 1876 Ga. LEXIS 90 (1876).

From June 12 to September 12, more than three months had elapsed. Barrett & Carswell v. Devine, 60 Ga. 632 , 1878 Ga. LEXIS 575 (1878).

Service of rule nisi to foreclose mortgage found sufficient. —

See English v. Ozburn, 59 Ga. 392 , 1877 Ga. LEXIS 284 (1877).

Attorney’s fees notice. —

Where the return day for filing suits in a court is the fifteenth of the month and a petition is filed on that day, a notice to bind for attorney’s fees, served on the fifth of the same month, is served “ten days before suit is brought.” Marietta Fertilizer Co. v. Benton, 21 Ga. App. 466 , 94 S.E. 657 , 1917 Ga. App. LEXIS 641 (1917).

Required notice of discharge hearing not given. —

The giving of “five days notice of the time and place of hearing” of a petition for discharge filed by a defendant, who is held in imprisonment in default of bail, is not complied with by serving the plaintiff on the first day of May with notice that the time of hearing the petition will be on the fifth day of May following. From the first day of May to the fifth day of May is only four days. Hardin v. Mutual Clothing Co., 34 Ga. App. 466 , 129 S.E. 907 , 1925 Ga. App. LEXIS 322 (1925).

When person knows of suit, should attend at court’s first term. —

When a person knows that one is sued, it would be well for the person to find out about any mistake in the process and attend at the first term of the court. W.T. Rawleigh Co. v. Watts, 68 Ga. App. 786 , 24 S.E.2d 213 , 1943 Ga. App. LEXIS 353 (1943).

Computation of time specified in local statute. —

Since, at a time certain local statute was enacted, the provision of this section requiring that only the first or last day shall be counted was in force, the court would presume that the General Assembly intended and understood that the time would be computed in accordance with its provisions, and that the first day would not be counted and that the last day would. Tift v. City of Tifton, 214 Ga. 507 , 105 S.E.2d 584 , 1958 Ga. LEXIS 474 (1958) (decided prior to 1985 amendment providing that the first day not be counted but that the last day shall be counted).

When an arrestee sued police officers for executing an allegedly expired search warrant at the arrestee’s home, the officers were entitled to qualified immunity and, thus, summary judgment dismissing the claim because while O.C.G.A. § 17-5-25 required a search warrant’s execution within ten days after the warrant’s issuance, it was unclear, as of the warrant’s execution, that O.C.G.A. § 1-3-1(d)(3), regarding time computation, did not extend that time period to make that execution timely since the tenth day after the warrant was issued fell on a Sunday, followed by a legal holiday, immediately after which the warrant was executed. Hurley v. City of St. Marys, No. CV 209-212, 2011 U.S. Dist. LEXIS 7399 (S.D. Ga. Jan. 26, 2011).

It was held that a damage action against a municipality was prematurely commenced before the municipality had been allowed the statutory period of 30 days after the claim had been presented when the claim was first presented on October 16, next prior to the filing of the suit on November 15. Grooms v. City of Hawkinsville, 31 Ga. App. 424 , 120 S.E. 807 , 1923 Ga. App. LEXIS 968 (1923).

In tort cases, both day of injury and day of filing must be counted in determining whether the action was filed within the period of limitation. David v. Marbut-Williams Lumber Co., 32 Ga. App. 157 , 122 S.E. 906 , 1924 Ga. App. LEXIS 319 (1924) (decided prior to 1985 amendment providing that the first day not be counted but that the last day shall be counted).

Injuries to the person. —

Paragraph (d)(3) of O.C.G.A. § 1-3-1 , as amended in 1985, governs O.C.G.A. § 9-3-33 , thereby extending the statute of limitations for personal injury actions to two years and one day. Gardner v. Hyster Co., 785 F. Supp. 161, 1992 U.S. Dist. LEXIS 2146 (M.D. Ga. 1992).

Personal injury action filed against heater manufacturer on the second anniversary of the injury was timely under the computation method mandated by paragraph (d)(3) of O.C.G.A. § 1-3-1 and was, therefore, within the two-year period contemplated by O.C.G.A. § 9-3-33 . Davis v. Desa Int'l, Inc., 209 Ga. App. 318 , 433 S.E.2d 410 , 1993 Ga. App. LEXIS 874 (1993).

Filing of claim bound by two-year limitation. —

Pursuant to O.C.G.A. § 1-3-1(d)(3), the plaintiff had until October 28, 1998, to file an action arising from an incident which occurred on October 27, 1996, for which a two year statute of limitations applied. Reese v. City of Atlanta, 247 Ga. App. 701 , 545 S.E.2d 96 , 2001 Ga. App. LEXIS 93 (2001).

Service of an uninsured motorist carrier within five business days after the date of filing of the complaint, in an action for personal injuries, related back to the date of filing as a matter of law, for statute of limitation purposes. Williams v. Colonial Ins. Co., 199 Ga. App. 760 , 406 S.E.2d 99 , 1991 Ga. App. LEXIS 661 (1991), 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).

Demurrer found filed within time allowed. —

Where the record shows that the defendant was served with a copy of the petition and process on February 14, 1952, and that the defendant filed a general demurrer to the petition on March 15, 1952, with the court taking judicial cognizance of the fact that the month of February, 1952, had 29 days, the demurrer was filed within the 30 days allowed by law. Sullivan v. Smith, 209 Ga. 325 , 72 S.E.2d 318 , 1952 Ga. LEXIS 535 (1952).

Certificate for review obtained on day after Columbus Day obtained within time. —

Where the ten-day limitation to secure the certificate certifying the denial of summary judgment for review would have expired on Sunday, October 11, and Monday, October 12, was Columbus Day, a legal holiday, a certificate for review obtained on October 13 was obtained within time. Allstate Ins. Co. v. Cody, 123 Ga. App. 265 , 180 S.E.2d 596 , 1971 Ga. App. LEXIS 1187 (1971).

Summary judgment appeal filed on thirty-second day timely. —

Because the thirtieth day following an order granting summary judgment fell on Saturday and the following Monday was a state holiday, the time for filing a notice of appeal was extended to the next business day, Tuesday. Dental One Assocs. v. JKR Realty Assocs., 228 Ga. App. 307 , 491 S.E.2d 414 , 1997 Ga. App. LEXIS 1043 (1997), cert. denied, No. S98C0029, 1998 Ga. LEXIS 145 (Ga. Jan. 5, 1998), aff'd, 269 Ga. 616 , 501 S.E.2d 497 , 1998 Ga. LEXIS 662 (1998).

Presentation of bill of exceptions. —

When last day for certifying bill of exceptions falls on Sunday, following day is superadded. Charleston & W.C. Ry. v. Cottonseed Oil Co., 22 Ga. App. 337 , 96 S.E. 586 , 1918 Ga. App. LEXIS 332 (1918).

When the last day numerically for presenting the bill of exceptions for certification falls on Sunday, the presentation of the bill to the trial judge for certification upon the next day, Monday, is not too late. Maryland Cas. Co. v. England, 34 Ga. App. 354 , 129 S.E. 446 , 1925 Ga. App. LEXIS 261 (1925).

Where the judgment complained of was rendered on May 16, and, not counting May 16, 15 days remained in the month of May, the last day for presenting a bill of exceptions within the time provided by law, 20 days, was June 5. Since June 5 fell on Thursday, and an extra day was not added under the law for the presentation of the bill of exceptions, the bill of exceptions, tendered on Friday, June 6, was not presented to the trial judge within the time prescribed by law, and the Supreme Court was without jurisdiction to pass upon the writ of error. Blair v. Blair, 209 Ga. 347 , 72 S.E.2d 288 , 1952 Ga. LEXIS 477 (1952).

When last day Saturday. —

When, in a condemnation proceeding, the tenth day following an assessor’s award falls on a Saturday and the condemnee files an appeal two days thereafter, the entry of a judgment only two days after the award was filed is premature; a condemnee, having exercised the condenmee’s right to appeal, is entitled to have a jury determine the value of the property taken or the amount of damage done. McAllister v. City of Jonesboro, 151 Ga. App. 260 , 259 S.E.2d 666 , 1979 Ga. App. LEXIS 2522 (1979).

Presentation of certiorari petition. —

In computing the days in which a petition for certiorari must be presented for sanction, when the last day falls on Sunday, it will be sufficient if the petition is presented for sanction on the following Monday. Wood v. State, 12 Ga. App. 651 , 78 S.E. 140 , 1913 Ga. App. LEXIS 686 (1913); Hill v. State, 14 Ga. App. 410 , 81 S.E. 248 , 1914 Ga. App. LEXIS 273 (1914).

Where the thirtieth day following the conviction of a defendant in a city court falls on a Sunday, a petition for certiorari filed on the Monday following would not be too late. Brown v. City of Atlanta, 84 Ga. App. 4 , 65 S.E.2d 611 , 1951 Ga. App. LEXIS 616 (1951).

Statutory construction applicable to contracts. —

Where a contract covers the minimum number of days required by a statute, the construction applicable to statutes necessarily governs the meaning of the contract. Trust Co. v. Guardian Life Ins. Co. of Am., 124 Ga. App. 465 , 184 S.E.2d 363 , 1971 Ga. App. LEXIS 968 (1971).

Paragraph (d)(3) of this section is a rule of statutory construction, and does not apply to contractual limitations; yet, this section states a rule of reason with respect to limitations, be they statutory or contractual, which should be applied to limitations in contracts in the absence of any sound reason for not applying them. Brooks v. Hicks, 230 Ga. 500 , 197 S.E.2d 711 , 1973 Ga. LEXIS 965 (1973).

By analogy this section applies to contracts as well as statutes where the limitation is in terms of days. Allstate Ins. Co. v. Stephens, 239 Ga. 717 , 238 S.E.2d 382 , 1977 Ga. LEXIS 1310 (1977).

A ten-day notice period required for cancellation of an insurance policy is governed by O.C.G.A. § 1-3-1 for computation of time and not by O.C.G.A. § 9-11-6 which deals exclusively with periods calculated after the commencement of a court proceeding. Southern Trust Ins. Co. v. First Fed. Sav. & Loan Ass'n, 168 Ga. App. 899 , 310 S.E.2d 712 , 1983 Ga. App. LEXIS 2949 (1983).

Paragraph (d)(3) of O.C.G.A. § 1-3-1 was applicable to the one-year suit limitation contained in a renter’s insurance policy. Since provisions were in conflict with the statutes of the state the provisions were amended to conform to such statutes. Sanders v. Allstate Ins. Co., 207 Ga. App. 461 , 428 S.E.2d 575 , 1993 Ga. App. LEXIS 248 (1993), cert. denied, No. S93C0876, 1993 Ga. LEXIS 428 (Ga. Apr. 15, 1993).

Provision not applicable to voluntarily accepted contractual limitations. —

Provisions in paragraph (d)(3) of O.C.G.A. § 1-3-1 regarding extension of time to exercise a privilege have no effect upon voluntarily accepted contractual limitations on the exercise of such privilege. Desai v. Safeco Ins. Co. of Am., 173 Ga. App. 815 , 328 S.E.2d 376 , 1985 Ga. App. LEXIS 2683 (1985).

Construction of time in insurance case. —

Where the uncontroverted evidence shows that the property insured was consumed on the morning of the twenty-fourth of January, 1910, the 12-months limitation as to commencement of the action expired at midnight of the twenty-third of January, 1911, and, under this stipulation of the contract, the suit on the policy, which was not commenced until January 24, 1911, was barred. Maxwell Bros. v. Liverpool & London & Globe Ins. Co., 12 Ga. App. 127 , 76 S.E. 1036 , 1913 Ga. App. LEXIS 460 (1913); Phillips v. Fireman's Fund Ins. Co., 31 Ga. App. 541 , 121 S.E. 255 , 1924 Ga. App. LEXIS 34 (1924).

“Days of election” deemed 24-hour day. —

The period of time contemplated by the words “days of election,” as used in former Penal Code 1910, § 445, is a day of 24 hours, commencing at midnight preceding the opening of the polls, and ending at midnight succeeding the close of the polls. Rose v. State, 107 Ga. 697 , 33 S.E. 439 , 1899 Ga. LEXIS 126 (1899).

Failure to provide legally required three-days’ notice of upcoming sale is found where a sale is advertised on December 25 to take place on December 27. Marshall v. Armour Fertilizer Works, 24 Ga. App. 402 , 100 S.E. 766 , 1919 Ga. App. LEXIS 688 (1919).

Not applicable to limitation fixed for filing materialman’s lien. —

The method of time computation in paragraph (d)(3) of O.C.G.A. § 1-3-1 did not apply to extend the requirement of O.C.G.A. § 44-14-361(a)(2) that a materialman’s lien must be filed within three months of the delivery of materials. United States Filter Distrib. Group, Inc. v. Barnett, 241 Ga. App. 759 , 526 S.E.2d 912 , 1999 Ga. App. LEXIS 1649 (1999), aff'd, 273 Ga. 254 , 538 S.E.2d 739 , 2000 Ga. LEXIS 868 (2000).

Service of responses to requests to admit. —

Service of responses to requests to admit was timely as calculated pursuant to O.C.G.A. § 1-3-1(d)(3); therefore, the requests were not deemed admitted. The fact that the certificate of service was not filed with the clerk under Ga. Unif. Super. Ct. R. 5.2 until later did not impact the fact that service of the responses was timely. Cruickshank v. Fremont Inv. & Loan, 307 Ga. App. 489 , 705 S.E.2d 298 , 2010 Ga. App. LEXIS 1141 (2010).

Defamation complaint timely filed. —

Natural gas marketer’s defamation complaint was timely filed because the complaint was filed on the first anniversary of the date of publication; O.C.G.A. § 1-3-1(d)(3) applies to the one-year statute of limitation for injuries to the reputation found in O.C.G.A. § 9-3-33 , so that the first day shall not be counted in determining whether a claim is timely filed. Infinite Energy, Inc. v. Pardue, 310 Ga. App. 355 , 713 S.E.2d 456 , 2011 Ga. App. LEXIS 570 (2011).

Renewal of dismissed action. —

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).

Gender

In generic sense, term “man” includes “woman,” and pronoun “he” includes person of feminine gender. Hightower v. State, 14 Ga. App. 246 , 80 S.E. 684 , 1914 Ga. App. LEXIS 197 (1914).

Joint Authority

Majority of officials authorized to act. —

Three commissioners, being a majority of five, are competent to act and make an assessment. Stevenson v. State, 69 Ga. 68 , 1882 Ga. LEXIS 180 (1882).

In drawing a grand jury, the ordinary (now probate court judge) acts as one of the board of jury commissioners, and the ordinary’s absence during the drawing of the jury will not render it invalid, a majority of the commissioners being present and acting. Roby v. State, 74 Ga. 812 , 1885 Ga. LEXIS 409 (1885) (decided under Code 1882, § 3911).

A majority of the members of the board of education of a city had authority to institute mandamus proceedings against the mayor and council of the city. City of Blakely v. Singletary, 138 Ga. 632 , 75 S.E. 1054 , 1912 Ga. LEXIS 642 (1912).

Where certain relief was sought against seven members of the board of education and its secretary in their official capacity, to require them to perform specific duties as a board of education, these acts could be performed by a majority of the board. Styles v. Waters, 212 Ga. 644 , 94 S.E.2d 702 , 1956 Ga. LEXIS 479 (1956).

Where a writ of mandamus absolute issues against the members of a board of education, requiring them to perform certain acts in their official capacity, and a majority of such board file a writ of error to the Supreme Court, a majority of the board have the right to withdraw or dismiss, pending final disposition, the writ of error. Styles v. Waters, 212 Ga. 644 , 94 S.E.2d 702 , 1956 Ga. LEXIS 479 (1956).

When a public trust or duty is to be executed by a definite number of persons, such public trust or duty may be executed by a majority of that definite number. It follows that Ga. L. 1969, p. 2641 et seq. amending a prior Act creating the office of Commissioner of Roads and Revenues of Fannin County so as to provide for the creation of a board of commissioners composed of a chairman and two other members, which sets out their jurisdiction and duties, and which fails to state in terms in what a quorum must consist, must be construed to mean that a majority of the three persons voting shall be sufficient to pass or defeat a proposed resolution. Stepp v. Lance, 131 Ga. App. 193 , 205 S.E.2d 490 , 1974 Ga. App. LEXIS 1368 (1974).

Appeal of judgment by less than majority dismissed. —

Since a majority of a five-member board is required to initiate an appeal, an appeal of a declaratory judgment by less than a majority must be dismissed. McClure v. Shirley, 227 Ga. 832 , 183 S.E.2d 385 , 1971 Ga. LEXIS 857 (1971).

Section inapplicable where majority acts with unqualified member. —

Where authority was not in fact exercised by the majority of qualified members, but by them in conjunction with another person whose appointment was void, it would not seem that this section would have application. Felker v. City of Monroe, 22 Ga. App. 301 , 95 S.E. 1023 , 1918 Ga. App. LEXIS 318 (1918).

Administration of will. —

Because former O.C.G.A. § 53-6-24(11) [pre-1998 Probate Code] does not declare that all the beneficiaries under a will must agree to the naming of an administrator with will annexed, the rule of construction in paragraph (d)(5) of O.C.G.A. § 1-3-1 , that a joint authority given to any number of persons or officers may be executed by a majority of them unless it is otherwise declared applies. Dismuke v. Dismuke, 195 Ga. App. 613 , 394 S.E.2d 371 , 1990 Ga. App. LEXIS 613 (1990) (decided prior to the 1991 amendment to § 53-6-24, deleting (11)).

Number

Use of plural instead of singular personal pronoun in indictment will not vitiate it. Jackson v. State, 88 Ga. 784 , 15 S.E. 677 , 1892 Ga. LEXIS 101 (1892).

“Liquor” includes “liquors.” Willburn v. State, 8 Ga. App. 28 , 68 S.E. 460 , 1910 Ga. App. LEXIS 12 (1910).

“Company” includes “individual.” Atlantic Coast Line R.R. v. State, 135 Ga. 545 , 69 S.E. 725 , 1910 Ga. LEXIS 28 (1910), aff'd, 234 U.S. 280, 34 S. Ct. 829 , 58 L. Ed. 1312 , 1914 U.S. LEXIS 1149 (1914).

“Defendant” includes “defendants.” —

A verdict finding in favor of “the defendant” will be construed as a finding in favor of all the defendants, where the suit is against two or more persons. Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390 , 73 S.E. 522 , 1912 Ga. App. LEXIS 530 (1912).

“Owner” includes “owners.” Stallworth v. Martin-Ozburn Realty Co., 17 Ga. App. 689 , 87 S.E. 1094 , 1916 Ga. App. LEXIS 858 (1916).

“Witnesses” includes “witness.” Herndon v. Jones County, 18 Ga. App. 523 , 89 S.E. 1047 , 1916 Ga. App. LEXIS 1089 (1916).

In suit against two defendants, allegation where particular defendant is not referred to is good against an objection that it is not alleged which defendant is referred to. Brooks v. Hartsfield Co., 56 Ga. App. 184 , 192 S.E. 459 , 1937 Ga. App. LEXIS 316 (1937).

Note signed by two parties obligation of both. —

Although a note contains a promise to pay in the singular number, where the note is signed by two persons, it is the obligation of both. Scott v. Gaulding, 60 Ga. App. 306 , 3 S.E.2d 766 , 1939 Ga. App. LEXIS 571 (1939).

“Opposite party.” —

As regards new trial applications, “opposite party” includes all parties interested in sustaining verdict. Carmichael v. City of Jackson, 194 Ga. 664 , 22 S.E.2d 470 , 1942 Ga. LEXIS 648 (1942).

Where school system lies in parts of two counties, a proviso expressly applying to independent school systems in a single county applies to it also. Rice v. Cook, 222 Ga. 499 , 150 S.E.2d 822 , 1966 Ga. LEXIS 528 (1966).

Section inapplicable when statute expressly declares one witness sufficient. —

This provision does not apply when it is apparent that the statute is dealing with the number of witnesses necessary and expressly declaring that one is sufficient except in specified cases. Stone v. State, 118 Ga. 705 , 45 S.E. 630 , 1903 Ga. LEXIS 665 (1903).

Illustrative Cases

Unclear tax statute construed against state and in citizen’s favor. —

If a statute levying taxes is not clear and positive in its terms, or if it is open to different interpretations through the indefiniteness of its provisions, it is to be construed most strongly against the state and in favor of the citizen or subject, and its provisions are not to be extended, by implication, beyond the clear import of the language used. Thompson v. Georgia Power Co., 73 Ga. App. 587 , 37 S.E.2d 622 , 1946 Ga. App. LEXIS 366 (1946).

Bank share tax to be construed so as to be constitutional. —

Where the construction of the bank share tax must be reconsidered to determine its constitutionality the court should construe this statute so as to render it constitutional, rather than declare the entire act unconstitutional. Bartow County Bank v. Bartow County Bd. of Tax Assessors, 251 Ga. 831 , 312 S.E.2d 102 , 1984 Ga. LEXIS 535 (1984), aff'd, 470 U.S. 583, 105 S. Ct. 1516 , 84 L. Ed. 2 d 535, 1985 U.S. LEXIS 70 (1985).

Defective summons cured by pleadings. —

As a general rule it may be said that a defective summons will be regarded as aided or cured by the pleadings served with the summons when, with all the information contained in the two papers in the defendant’s possession, the defendant could not be misled as to the nature of the relief demanded, or as to the court in which the proceedings are to be instituted. W.T. Rawleigh Co. v. Watts, 68 Ga. App. 786 , 24 S.E.2d 213 , 1943 Ga. App. LEXIS 353 (1943).

If accused can admit all accusations of indictment and still be innocent, indictment is defective. Every indictment must be complete within itself, and charge a crime and every substantial element of the offense alleged to be committed. Gore v. State, 79 Ga. App. 696 , 54 S.E.2d 669 , 1949 Ga. App. LEXIS 726 (1949).

Submission of interrogatories is mandatory in declaratory judgment action. Cole v. Frostgate Whses., Inc., 150 Ga. App. 320 , 257 S.E.2d 309 , 1979 Ga. App. LEXIS 2202 (1979), rev'd, 244 Ga. 782 , 262 S.E.2d 98 , 1979 Ga. LEXIS 1413 (1979), vacated, 153 Ga. App. 301 , 266 S.E.2d 807 , 1980 Ga. App. LEXIS 1779 (1980).

Rights growing out of contracts protected. —

Where the meaning of an Act is doubtful, it would not be so construed as to impair rights growing out of contracts prior to its passage. Mitchell v. Wolfe, 70 Ga. 625 , 1883 Ga. LEXIS 384 (1883).

Contract required to be written may not be modified by subsequent oral agreement. Nowell v. Mayor of Monroe, 177 Ga. 648 , 171 S.E. 136 , 1933 Ga. LEXIS 382 (1933).

At common law it was not required that contract of insurance should be in writing in order to be valid. Nowell v. Mayor of Monroe, 177 Ga. 648 , 171 S.E. 136 , 1933 Ga. LEXIS 382 (1933).

Fidelity insurance contract must be in writing. —

Whether the insurer is a resident or nonresident corporation, a contract of fidelity insurance must be in writing under the laws of this state. Nowell v. Mayor of Monroe, 177 Ga. 648 , 171 S.E. 136 , 1933 Ga. LEXIS 382 (1933).

Rule applicable to contracts issued upon cash basis. —

The rule that a policy of insurance shall be in writing and signed by the insurer applies to contracts issued upon a cash basis as well as to those issued upon a credit basis, if such there may be. Nowell v. Mayor of Monroe, 177 Ga. 648 , 171 S.E. 136 , 1933 Ga. LEXIS 382 (1933).

Suit cannot be maintained upon a parol renewal of an insurance policy. Nowell v. Mayor of Monroe, 177 Ga. 648 , 171 S.E. 136 , 1933 Ga. LEXIS 382 (1933).

Section considered in construing deed. —

Without giving a strict and mandatory application of this section in the construction of a deed, yet, since it is true that the purpose is to arrive at the true meaning and intent of the language used, this section can properly be considered as illustrative of what constitutes the true intent and purpose of the instrument. Rustin v. Butler, 195 Ga. 389 , 24 S.E.2d 318 , 1943 Ga. LEXIS 503 (1943).

O.C.G.A. § 51-5-11 (retraction in libel action) was clearly inapplicable to defamatory statements made in a radio talk show, it being clear, giving the words “newspaper or other publication” their ordinary signification, that the General Assembly intended that the section apply exclusively to the printed media. Williamson v. Lucas, 171 Ga. App. 695 , 320 S.E.2d 800 , 1984 Ga. App. LEXIS 3001 (1984).

Sanction issued by professional board. —

The Board of Dentistry’s decision to sanction a dentist was not void for want of jurisdiction, even though the decision was rendered more than 30 days following the close of the record, because there was no harm shown nor authority withdrawn. Thebaut v. Georgia Bd. of Dentistry, 235 Ga. App. 194 , 509 S.E.2d 125 , 1998 Ga. App. LEXIS 1472 (1998).

Lien laws must be strictly construed. —

Georgia’s law providing for a hospital lien against a patient for services rendered, O.C.G.A. § 44-14-470 et seq., must be strictly construed. MCG Health, Inc. v. Owners Ins. Co., 302 Ga. App. 812 , 692 S.E.2d 72 , 2010 Ga. App. LEXIS 241 (2010), aff'd on other grounds, 288 Ga. 782 , 707 S.E.2d 349 , 2011 Ga. LEXIS 24 (2011).

SLAPP statute applied to non-Georgia residents. —

Considering the text of the statute, the General Assembly’s purpose, and the evil the statute was designed to correct, O.C.G.A. § 9-11-11.1(a) , Georgia’s Anti-SLAPP statute, encompassed a press conference held outside the territorial limits of Georgia by New York defendants. Because the press conference was held to address an issue under consideration by a judicial body, i.e., a nuisance lawsuit filed by the New York defendants against gun dealers, a Georgia gun dealer’s slander suit was dismissed for failure to file a verification as required by § 9-11-11.1(b) . Adventure Outdoors, Inc. v. Bloomberg, 307 Ga. App. 356 , 705 S.E.2d 241 , 2010 Ga. App. LEXIS 1106 (2010), cert. denied, No. S11C0648, 2011 Ga. LEXIS 402 (Ga. May 16, 2011), cert. denied, 565 U.S. 1060, 132 S. Ct. 763 , 181 L. Ed. 2 d 485, 2011 U.S. LEXIS 8530 (2011).

Motor vehicle hijacking statute. —

Because the text of the hijacking statute, O.C.G.A. § 16-5-44.1 , does not define “obtain”, a court looks to the ordinary meaning of that word, given that it was not a term of art or a technical term pursuant to O.C.G.A. § 1-3-1(b) ; ordinarily, “obtain” means to gain or attain possession, usually by some planned action or method, and applying the ordinary meaning of “obtain”, the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is attained. Jackson v. State, 309 Ga. App. 24 , 709 S.E.2d 44 , 2011 Ga. App. LEXIS 309 (2011).

Trial court misinterpreted O.C.G.A. § 16-13-49(d)(6) in holding that the defendant’s vehicle, which was in close proximity to the defendant’s apartment in which drugs were seized, was not subject to forfeiture because the state lacked evidence that the vehicle was in any way connected to the unlawful activity; no such connection was required. State of Ga. v. West, 331 Ga. App. 745 , 771 S.E.2d 432 , 2015 Ga. App. LEXIS 246 (2015).

Instruction to “remove” oneself from school premises must occur on occasion in question. —

Dismissal of an indictment for loitering on school premises was required because O.C.G.A. § 20-2-1180(b)(1) made it a crime for a defendant to fail to remove oneself from school premises after being told to do so; in this case, it was alleged that the defendant was told to leave on a prior occasion, not the date in question. State v. Freeman, 349 Ga. App. 94 , 825 S.E.2d 538 , 2019 Ga. App. LEXIS 116 (2019).

Rape shield statute. —

By the statute’s plain terms the rape shield statute, O.C.G.A. § 24-2-3(a) (see now O.C.G.A. § 24-4-412 ), applied only in prosecutions for rape and not to child molestation cases; however, the trial court did not err by applying former O.C.G.A. § 24-2-3(a) to defendant’s case because the defendant was prosecuted for, among other offenses, rape, and the fact that the defendant was acquitted of the rape charge did not require a new trial on the other charges. Abdulkadir v. State, 279 Ga. 122 , 610 S.E.2d 50 , 2005 Ga. LEXIS 161 (2005).

Plain language of O.C.G.A. § 42-8-62 . —

Defendant was not required to register as a sexual offender because the defendant successfully completed a first-offender sentence for statutory rape and burglary charges, and a “conviction” under O.C.G.A. § 42-1-12(a)(8) did not include a discharge without an adjudication of guilt following the successful completion of a first offender sentence; the plain language of O.C.G.A. § 42-8-62(a) provided that, with certain exceptions, once a first offender was discharged without an adjudication of guilt, he or she stood completely exonerated and was not considered as having been convicted of a crime. The trial court’s interpretation of the statutes at issue as requiring all first offenders who had committed certain sexual offenses to register as sexual offenders for the rest of their lives rendered the plain language of O.C.G.A. § 42-1-12(8) meaningless and was improper. Jackson v. State, 299 Ga. App. 356 , 683 S.E.2d 60 , 2009 Ga. App. LEXIS 892 (2009).

Dougherty County Probate Court allowed to hold jury trials. —

Dougherty County, Ga., Probate Court had jurisdiction to hold jury trials because: (1) the 2010 census, which dropped the county’s population below that required by O.C.G.A. § 15-9-120(2) to allow jury trials in probate court, was not effective until July 1, 2012, under O.C.G.A. § 1-3-1(d)(2)(D); and, (2) a statutory amendment, effective on that date, decreased the population requirement. Ellis v. Johnson, 291 Ga. 127 , 728 S.E.2d 200 , 2012 Ga. LEXIS 489 (2012).

General Consideration

Any part of law may be used to ascertain meaning of another part. —

Any portion of a body of laws may well be invoked to ascertain the meaning of words and phrases used in another part. Royal Indem. Co. v. Agnew, 66 Ga. App. 377 , 18 S.E.2d 57 , 1941 Ga. App. LEXIS 214 (1941).

“Abode”

“Abode” ordinarily means “domicile.” Hanson v. Williams, 170 Ga. 779 , 154 S.E. 240 , 1930 Ga. LEXIS 239 (1930).

“Accident”

“Accident” means unintentional act. —

To the average layman, “accident” means only what the definition given it in this section states; an unintentional act, as opposed to something done in order to achieve a particular consequence. Bush v. Skelton, 91 Ga. App. 83 , 84 S.E.2d 835 , 1954 Ga. App. LEXIS 864 (1954).

“Accident” means an unintentional act, as opposed to something done in order to achieve a particular consequence. Cohran v. Douglasville Concrete Prods., Inc., 153 Ga. App. 8 , 264 S.E.2d 507 , 1980 Ga. App. LEXIS 1653 (1980).

For purposes of constructing subject insurance policy, accident meant “an event which takes place without one’s foresight or expectation or design.” Crook v. Georgia Farm Bureau Mut. Ins. Co., 207 Ga. App. 614 , 428 S.E.2d 802 , 1993 Ga. App. LEXIS 286 (1993), cert. denied, No. S93C0857, 1993 Ga. LEXIS 448 (Ga. Apr. 15, 1993).

“Accident” in its strict sense implies absence of negligence for which no one is liable. Richter v. Atlantic Co., 65 Ga. App. 605 , 16 S.E.2d 259 , 1941 Ga. App. LEXIS 360 (1941).

The idea of “accident” excludes responsibility because of negligence. Bush v. Skelton, 91 Ga. App. 83 , 84 S.E.2d 835 , 1954 Ga. App. LEXIS 864 (1954).

The legal connotation of “accident” has reference to unintentional acts occurring without being caused by any negligence of the parties involved. Lawrence v. Hayes, 92 Ga. App. 778 , 90 S.E.2d 102 , 1955 Ga. App. LEXIS 713 (1955).

The defense of accident is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Chadwick v. Miller, 169 Ga. App. 338 , 312 S.E.2d 835 , 1983 Ga. App. LEXIS 3064 (1983).

Although the definition of “accident” is somewhat ambiguous, in that it may also be said of lack of ordinary care that does not exist by reason of foresight or design, yet the distinction has been clearly stated in the cases as something which would not have been precluded by the exercise of ordinary care on the part of either the plaintiff or the defendant. Zayre of Ga., Inc. v. Haynes, 134 Ga. App. 15 , 213 S.E.2d 163 , 1975 Ga. App. LEXIS 1889 (1975).

Personal injury cases. —

Word “accident” means, in personal injury cases, injury which occurs without being caused by negligence of either the plaintiff or the defendant. Cohran v. Douglasville Concrete Prods., Inc., 153 Ga. App. 8 , 264 S.E.2d 507 , 1980 Ga. App. LEXIS 1653 (1980); Freed v. Redwing Refrigeration, Inc., 156 Ga. App. 817 , 275 S.E.2d 691 , 1980 Ga. App. LEXIS 3212 (1980).

An “accident,” in a strict legal sense, as applied to negligence cases, refers to an event which is not proximately caused by negligence, but instead arises from an unforeseen or unexplained cause. But it is also often used to indicate a happening which, although not wholly free from negligence by some person, was not proximately caused by the failure of either of the parties to a case to exercise ordinary care in the situation. Baggett v. Jackson, 79 Ga. App. 460 , 54 S.E.2d 146 , 1949 Ga. App. LEXIS 671 (1949), overruled, Chadwick v. Miller, 169 Ga. App. 338 , 312 S.E.2d 835 , 1983 Ga. App. LEXIS 3064 (1983).

The word “accident,” as applied to personal injury cases, has a legal meaning as referring to an injury which occurs without being caused by the negligence of either the plaintiff or the defendant. Bush v. Skelton, 91 Ga. App. 83 , 84 S.E.2d 835 , 1954 Ga. App. LEXIS 864 (1954).

In a personal injury case, an “accident” is an event which happens unmixed with the lack of ordinary care and diligence of either party, for which there can be no recovery. Trammell v. Williams, 97 Ga. App. 31 , 101 S.E.2d 887 , 1958 Ga. App. LEXIS 697 (1958).

No error in refusing accident charge when evidence plainly shows negligence. —

There is no error in a refusal to charge the jury on the law of accident, even upon request, when the evidence plainly shows that the plaintiff’s injuries were the result of the defendants’ negligence. Lawrence v. Hayes, 92 Ga. App. 778 , 90 S.E.2d 102 , 1955 Ga. App. LEXIS 713 (1955).

Defendant willfully and wantonly fires loaded pistol. —

Where the defendant was engaged in the unlawful act of willfully and wantonly firing a loaded pistol between dark and daylight on a public highway, not on the defendant’s own premises or in defense of person or property, from which a homicide resulted, the defense of accidental homicide was not involved, and the trial judge did not err in refusing to give a written request to charge. Creel v. State, 216 Ga. 233 , 115 S.E.2d 552 , 1960 Ga. LEXIS 435 (1960).

Unpublished decision: Because the underlying civil action did not involve allegations of an “accident,” and there was no “occurrence” under the terms of the insurance policy, the defendant insurer had no duty to defend or indemnify plaintiffs in the underlying action and the insurer was entitled to summary judgment on the plaintiffs’ suit. Burt Co. v. Clarendon Nat'l Ins. Co., 385 Fed. Appx. 892, 2010 U.S. App. LEXIS 13638 (11th Cir. 2010).

Error to give charge where defense not sustained by evidence. —

It is error to give in charge the law of accident where neither the pleadings nor any evidence would sustain this defense. Bush v. Skelton, 91 Ga. App. 83 , 84 S.E.2d 835 , 1954 Ga. App. LEXIS 864 (1954).

Evidence plainly shows negligence. —

Where the evidence plainly shows that the injuries of the plaintiff were due either exclusively to the plaintiff’s own negligence, or solely to the negligence of the defendant, or to the negligence of both the plaintiff and the defendant, it is error for the court to charge the law of accident. Everett v. Clegg, 213 Ga. 168 , 97 S.E.2d 689 , 1957 Ga. LEXIS 330 (1957).

Where no accident, and charge given without defining term, error requires reversal. —

Where an accident is not involved in a case, and a charge is given on “accident” without defining the term, which would tend to lead the jury to believe that the plaintiffs could not recover unless the act of the defendant was nonaccidental or intentional, then the charge is an error requiring a reversal of the case. Bush v. Skelton, 91 Ga. App. 83 , 84 S.E.2d 835 , 1954 Ga. App. LEXIS 864 (1954).

Where accident question not raised, injection of theory of accident reversible error. —

Where neither the pleadings nor the evidence raised any question of accident, the issue before the jury being whether the injuries of the plaintiff were caused by the negligence of the defendant, or by the plaintiff’s own negligence, or by the joint negligence of both, the injection by the court of the theory of accident as a cause of the two vehicles colliding was calculated to detract the attention of the jury from the real issue in the case and was reversible error. Everett v. Clegg, 213 Ga. 168 , 97 S.E.2d 689 , 1957 Ga. LEXIS 330 (1957).

HOA’s removal of homeowners’ sign presented jury question. —

In a dispute involving a homeowners’ association’s (HOA) claim of a pedestrian easement access across a subdivision lot to a lake, the term “10’ PEDESTRIAN ESMT” on the plat was void for uncertainty of description. The lot owners’ counterclaims for trespass, theft by taking (for removal of a sign), interfering with the right of quiet enjoyment, attorney’s fees, and punitive damages presented jury questions; however, their claim for intentional infliction of emotional distress was subject to summary judgment. The Plantation at Bay Creek Homeowners Association, Inc. v. Glasier, 349 Ga. App. 203 , 825 S.E.2d 542 , 2019 Ga. App. LEXIS 132 (2019).

Court’s charge found not error. —

The court did not err in the instructions to the jury as to the care and diligence required of one manufacturing bottled drinks for sale, or in charging that “if the defendant was not negligent and did exercise ordinary care, and any foreign substance got into the bottle notwithstanding ordinary care, that would be what the law designates as an unavoidable accident, for the occurrence of which the defendant would not be liable.” Hathcox v. Atlanta Coca-Cola Bottling Co., 50 Ga. App. 410 , 178 S.E. 404 , 1935 Ga. App. LEXIS 343 (1935).

The testimony of the eyewitness, when considered together with that of the plaintiff, was sufficient to authorize the jury to find that there was no negligence on the part of the defendant railway which caused the plaintiff’s injuries, and that the event was an “accident” as pled by the defendant; accordingly, the charge of the court on “accident” was adjusted to the pleadings and evidence, and was not error. Warren v. Georgia S. & F. Ry., 77 Ga. App. 886 , 50 S.E.2d 128 , 1948 Ga. App. LEXIS 664 (1948).

Charge on defense of accident in personal injury case in language of section is error. Cohran v. Douglasville Concrete Prods., Inc., 153 Ga. App. 8 , 264 S.E.2d 507 , 1980 Ga. App. LEXIS 1653 (1980).

Charge not harmless error. —

Unless there is evidence authorizing a finding that an occurrence was an “accident,” a charge on that defense is error. Chadwick v. Miller, 169 Ga. App. 338 , 312 S.E.2d 835 , 1983 Ga. App. LEXIS 3064 (1983).

Events underlying case against insured took place with insured’s foresight, expectation, or design. —

Unpublished decision: In a case in which an insured appealed a district court’s entry of summary judgment in favor of an insurer in a declaratory judgment case, the insurer had no duty to defend the insured in the underlying civil suit alleging bodily injury and property damage because, while the policy did not define accident, the events underlying the complaint in the case against the insured did not take place without the insured’s foresight, expectation, or design, and the homeowner’s policy excluded expressly from coverage losses resulting from bodily injury which were expected or intended by the insured even if the bodily injury was of a different kind, quality, or degree than expected or intended. Meritplan Ins. Co. v. Leverette, 552 Fed. Appx. 900, 2014 U.S. App. LEXIS 624 (11th Cir. 2014).

“Act of God”

“Act of God” constitutes a defense in respect of which the burden of proof is on a defendant to establish. Eidson v. Mathews, 120 Ga. App. 711 , 172 S.E.2d 144 , 1969 Ga. App. LEXIS 908 (1969).

Term “act of God” in its legal sense applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them. Sampson v. General Elec. Supply Corp., 78 Ga. App. 2 , 50 S.E.2d 169 , 1948 Ga. App. LEXIS 666 (1948).

“Act of God” is an accident caused by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death, or illness. Uniroyal, Inc. v. Hood, 588 F.2d 454, 1979 U.S. App. LEXIS 17321 (5th Cir. 1979).

Idea of human agency excluded. —

“Act of God,” in order to constitute a defense, must exclude idea of human agency. Sampson v. General Elec. Supply Corp., 78 Ga. App. 2 , 50 S.E.2d 169 , 1948 Ga. App. LEXIS 666 (1948).

The concept of an “act of God” excludes all idea of human agency. Uniroyal, Inc. v. Hood, 588 F.2d 454, 1979 U.S. App. LEXIS 17321 (5th Cir. 1979).

An “act of God” means a casualty which is not only not due to human agency, but which is in no wise contributed to by human agency, and an act which may be prevented by the exercise of ordinary care is not an act of God. Central Ga. Elec. Membership Corp. v. Heath, 60 Ga. App. 649 , 4 S.E.2d 700 , 1939 Ga. App. LEXIS 129 (1939).

The trial court improperly injected consideration of human factors into the calculus when it charged that an act of God “is not due to any human agency” and added that “acts of God are events of nature, which are so extraordinary in character that human scale and foresight by the exercise of proper care and caution cannot provide against them.” Strange v. Bartlett, 236 Ga. App. 686 , 513 S.E.2d 246 , 1999 Ga. App. LEXIS 287 (1999).

Genuine issues of fact remained for trial in a claim by homeowners against a county for inverse condemnation arising out of an alleged continuing nuisance from the county’s failure to maintain and repair storm water drainage systems, given expert and lay testimony regarding the flooding amounts. The trial court erred in concluding that the 2009 flooding was an act of God. Hayman v. Paulding County, 349 Ga. App. 77 , 825 S.E.2d 482 , 2019 Ga. App. LEXIS 107 (2019).

Casualty preventable by the exercise of ordinary care is not an act of God. Uniroyal, Inc. v. Hood, 588 F.2d 454, 1979 U.S. App. LEXIS 17321 (5th Cir. 1979).

Whether particular casualty is “act of God” is a mixed question of law and fact. Uniroyal, Inc. v. Hood, 588 F.2d 454, 1979 U.S. App. LEXIS 17321 (5th Cir. 1979).

Whether an extraordinary flood is an “act of God,” as that expression is used in the law, is a mixed question of law and facts; the defining and limitation of the term, its several characteristics, and its possibilities as establishing and controlling an exemption from liability, are questions of law for the court, but the existence or nonexistence of the facts on which it is predicated is a question for the jury. Goble v. Louisville & Nashville R.R., 187 Ga. 243 , 200 S.E. 259 , 1938 Ga. LEXIS 776 (1938).

For circumstances justifying submission of charge on “act of God” defense to jury in suit for damages caused by rain-induced flooding of warehouse, see Uniroyal, Inc. v. Hood, 588 F.2d 454, 1979 U.S. App. LEXIS 17321 (5th Cir. 1979).

Evidence not sufficient to authorize jury to find “act of God.” —

Where witnesses for both the plaintiff and defendants testified that the sewer which the lessor had contracted to keep in repair and which overflowed, causing damage to plaintiff’s property, was partially stopped up, that the water was not passing through it as it normally did, and that large quantities of debris were cleaned out of it after this rain, and that previously there had been other rains there about as heavy as the one on the afternoon in question, the evidence as to the rain was not sufficient to authorize a jury to find that the rain was an “act of God,” in the legal sense of this term. Sampson v. General Elec. Supply Corp., 78 Ga. App. 2 , 50 S.E.2d 169 , 1948 Ga. App. LEXIS 666 (1948).

Nonannual floods. —

Some courts have attempted to fix the meaning of “extraordinary” in relation to the frequency of occurrence, holding that such floods as are not of annual occurrence are extraordinary and an “act of God”; but the true rule would seem to be that the mere fact that a flood does not occur annually will not make it an extraordinary one, if from the climatic conditions and the character of the country it is likely to occur, and has been known to occur, with sufficient frequency to warn nearby residents. Goble v. Louisville & Nashville R.R., 187 Ga. 243 , 200 S.E. 259 , 1938 Ga. LEXIS 776 (1938).

One obstructing natural watercourse not liable where flood sole cause of injury. —

While it is the general rule that where rains are so unprecedented, and the flood caused thereby so extraordinary, that they are in legal contemplation an “act of God,” one obstructing a natural watercourse will not be held liable only where the “act of God” is not only the proximate cause, but the sole cause, of the injury. Goble v. Louisville & Nashville R.R., 187 Ga. 243 , 200 S.E. 259 , 1938 Ga. LEXIS 776 (1938).

If person’s negligence cooperating cause, obstructor held responsible. —

Where an unprecedented flood is the cause of the injury, but the prior, coincident, or subsequent negligence of a person obstructing a natural watercourse so mingles with it as to be an efficient and cooperating cause, the obstructor will be held responsible, because one’s act is causa sine qua non. Goble v. Louisville & Nashville R.R., 187 Ga. 243 , 200 S.E. 259 , 1938 Ga. LEXIS 776 (1938).

Utility’s permitting lightning to travel into room. —

While the striking of the main line of an electric utility by lightning was an “act of God,” the utility’s permitting it to travel across lateral wire into the plaintiff’s room, instead of arranging for it to be conducted into the ground, was not an act free from human agency. Central Ga. Elec. Membership Corp. v. Heath, 60 Ga. App. 649 , 4 S.E.2d 700 , 1939 Ga. App. LEXIS 129 (1939).

Ordinary freshet is not the “act of God,” in a legal sense which protects a man against the responsibility for the nonperformance of a contract. Sampson v. General Elec. Supply Corp., 78 Ga. App. 2 , 50 S.E.2d 169 , 1948 Ga. App. LEXIS 666 (1948).

Sudden loss of consciousness by itself may come within the definition of “act of God”; yet an “act of God” means a casualty which is not only not due to human agency, but is one which is in no wise contributed to by human agency, and an act which may be prevented by the exercise of ordinary care is not an “act of God.” Jackson v. Co-op Cab Co., 102 Ga. App. 688 , 117 S.E.2d 627 , 1960 Ga. App. LEXIS 723 (1960).

To establish an “act of God” defense based on illness producing a loss of consciousness, the driver must show that the loss of consciousness produced the accident without any contributing negligence on the part of the driver. Lewis v. Smith, 238 Ga. App. 6 , 517 S.E.2d 538 , 1999 Ga. App. LEXIS 700 (1999), cert. denied, No. S99C1264, 1999 Ga. LEXIS 750 (Ga. Sept. 17, 1999).

Loss of consciousness by a driver would not be a complete defense if by the exercise of ordinary care it was foreseeable to the driver that the driver might lose consciousness while driving; even if loss of consciousness was not foreseeable, it would still not be a complete defense if the evidence showed the loss of consciousness occurred, not suddenly, but in a manner that would have allowed a reasonable driver to take some action to avoid the ensuing accident. Lewis v. Smith, 238 Ga. App. 6 , 517 S.E.2d 538 , 1999 Ga. App. LEXIS 700 (1999), cert. denied, No. S99C1264, 1999 Ga. LEXIS 750 (Ga. Sept. 17, 1999).

When the plaintiff failed to produce any specific facts rebutting the defendant’s affirmative defense of sudden loss of consciousness and the plaintiff failed to show there was a genuine issue for trial, the trial court properly granted summary judgment in favor of the defendant. Lewis v. Smith, 238 Ga. App. 6 , 517 S.E.2d 538 , 1999 Ga. App. LEXIS 700 (1999), cert. denied, No. S99C1264, 1999 Ga. LEXIS 750 (Ga. Sept. 17, 1999).

When the uncontradicted evidence in a suit involving two drivers showed that just before running a red light, the second driver had suffered a sudden and unforeseeable loss of consciousness, the co-executor for the second driver had established a prima facie case of an “act of God” defense under O.C.G.A. § 1-3-3(3) ; as the first driver had not rebutted this defense, it was proper to enter summary judgment for the co-executor. Halligan v. Broun, 285 Ga. App. 226 , 645 S.E.2d 581 , 2007 Ga. App. LEXIS 424 (2007).

Truck driver’s estate sufficiently established the affirmative defense of an “act of God” for purposes of a claim of negligence arising from a vehicle collision caused by the truck driver having a stroke and veering into a car in another lane of traffic; there was uncontradicted evidence that the truck driver had an unforeseeable loss of consciousness just prior to losing control of the truck. Eatmon v. Weeks, 323 Ga. App. 578 , 746 S.E.2d 886 , 2013 Ga. App. LEXIS 673 (2013).

Smoky fog maintainable as “act of God.” —

Evidence that fog on the morning of the accident was naturally dense enough to alone reduce visibility to dangerous levels, sufficed to allow a jury charge of “act of God”, despite the combined presence of artificial smoke in the air. Mann v. Anderson, 206 Ga. App. 760 , 426 S.E.2d 583 , 1992 Ga. App. LEXIS 1796 (1992), cert. denied, No. S93C0591, 1993 Ga. LEXIS 572 (Ga. Apr. 15, 1993).

Bright sunlight was not an act of God. —

In an auto-pedestrian collision case, the trial court properly granted the pedestrian’s motion for summary judgment on the driver’s act of God defense based on the bright sunlight because there was no evidence that bright sunlight while driving was an unexpected natural occurrence or that the driver had no reasonable warning that the sunlight might obscure the driver’s vision. Head v. de Souse, 353 Ga. App. 309 , 836 S.E.2d 227 , 2019 Ga. App. LEXIS 685 (2019).

“Lunatic,” “Insane,” or “Non Compos Mentis”

Condition of mind of persons “non compos mentis” of three degrees. —

The Code defines “insane” persons, or persons “non compos mentis,” or persons “mentally incompetent,” as meaning persons with unsoundness of mind in many degrees, such condition of mind being of three degrees: (1) one who is so unsound as to be sent to an asylum; (2) another so unsound as to have a guardian of one’s property and of one’s person; and (3) another so unsound as to have a guardian only of one’s property, to see that it is not wasted; that is, a trustee. Royal Indem. Co. v. Agnew, 66 Ga. App. 377 , 18 S.E.2d 57 , 1941 Ga. App. LEXIS 214 (1941).

When insured “non compos mentis,” unable to make valid contract. —

When a petition alleges that the insured, at the time the insured agreed with the company, was non compos mentis, it alleges that the insured was at the time unable to make any valid contract. Cason v. Owens, 100 Ga. 142 , 28 S.E. 75 , 1897 Ga. LEXIS 15 (1897).

“May”

True rule for the construction of the word “may” in a statute is, that when such statute concerns the public interest, or affects the rights of third persons, then the word “may” shall be construed to mean “must” or “shall.” “May” is held to mean shall in two cases: (1) where the thing to be done is for the sake of justice; or (2) is for the public benefit. Jennings v. Suggs, 180 Ga. 141 , 178 S.E. 282 , 1935 Ga. LEXIS 197 (1935).

Where a statute in permissive terms provides for the performance of some act which justice or the public good requires, its terms will be construed as having an imperative significance, and the performance of the act permissively provided for is made mandatory. Prince v. Lee Roofing Co., 161 Ga. App. 181 , 288 S.E.2d 135 , 1982 Ga. App. LEXIS 1805 (1982).

Where a statute in permissive terms authorizes the privation of a valuable right and the imposition of a penalty, the permissive terms are not mandatory, and the conferee of the power has a discretion in exercising it. Prince v. Lee Roofing Co., 161 Ga. App. 181 , 288 S.E.2d 135 , 1982 Ga. App. LEXIS 1805 (1982).

Trial judge is not vested with discretion in matter of taxing costs against convicted defendant. There is no provision of law for the payment of the fees of the officers of the court where the judge in the judge’s discretion fails to tax the costs against the convicted defendant, and it cannot be assumed that it was ever intended that the compensation of these officers should rest in the discretion of the judge. Pound v. Faulkner, 193 Ga. 413 , 18 S.E.2d 749 , 1942 Ga. LEXIS 404 (1942).

“Month”

Calendar month. —

“Month” means a calendar month. Jobson v. Masters, 32 Ga. App. 60 , 122 S.E. 724 , 1924 Ga. App. LEXIS 260 (1924).

Three months did not mean 90 days. —

The 1991 version of O.C.G.A. § 44-14-361.1 , requiring a contractor to file a contractor’s claim of lien three months from the completion of the work, governed and was satisfied by the contractor’s filing the claim of lien on September 12 following the completion of work on June 13. The court rejected the owner’s argument that “three months” meant 90 days. Fed. Trust Bank v. C. W. Matthews Contr. Co., 312 Ga. App. 200 , 718 S.E.2d 63 , 2011 Ga. App. LEXIS 922 (2011).

Current year. —

When word “month” is referred to, it will be understood to be of current year, unless from the connection it appears that another is intended. Tipton v. State, 119 Ga. 304 , 46 S.E. 436 , 1904 Ga. LEXIS 815 (1904).

“Penitentiary”

Prior to November 1, 1982, a county correctional institute was not a “penitentiary” because it was not “exclusively” for the confinement of felony prisoners, as required by former Code 1933, § 102-103 (see now O.C.G.A. § 1-3-3 ). As a result, former Code 1933, § 26-9902 (see now O.C.G.A. § 17-8-50 ), which dealt with the trial of prisoners escaping from the “penitentiary,” was inapplicable to a prisoner escaping from a county correctional institute. Accordingly, such a prisoner had no right, if one in fact existed under the inapplicable statute, to be returned to and to remain in the county correctional institute after the prisoner’s apprehension. Mullins v. State, 167 Ga. App. 670 , 307 S.E.2d 61 , 1983 Ga. App. LEXIS 2573 (1983).

“Person”

Ordinary signification of the word “person” is that it includes both sexes. Brown v. Hemphill, 74 Ga. 795 , 1885 Ga. LEXIS 401 (1885).

“Person,” when used in a restricted sense, means only an artificial person or corporation. Comer v. State, 103 Ga. 69 , 29 S.E. 501 , 1897 Ga. LEXIS 358 (1897).

It is well settled that corporation is included in word “person” in the criminal statutes. It is true that the doctrine of holding corporations responsible for the violation of penal laws is one developed by gradual evolution, but it is none the less the law, and it is of healthful necessity and utility. Southern Express Co. v. State, 1 Ga. App. 700 , 58 S.E. 67 , 1907 Ga. App. LEXIS 84 (1907) see also Collins Park & B.R.R. v. Short Elec. Ry., 98 Ga. 62 , 25 S.E. 929 , 1895 Ga. LEXIS 604 (1895).

Standing to attack a statute on constitutional grounds. —

A private corporation may attack a state statute on the grounds that it violates due process and equal protection. Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 , 1982 Ga. LEXIS 1100 (1982).

A hospital authority has standing by statute to attack the state law on the grounds that it violates the due process and equal protection clauses of the Georgia Constitution. Caldwell v. Hospital Auth., 248 Ga. 887 , 287 S.E.2d 15 , 1982 Ga. LEXIS 1100 (1982).

Non-profit corporation without standing in quo warranto proceeding. —

Non-profit association with the purpose of focusing on public interest matters of self-defense and gun laws of the State of Georgia was not a “person” which could claim to have an interest in the offices held by the Georgia Code Revision Commission members for purposes of pursuing a writ of quo warranto under O.C.G.A. § 9-6-60 . No association standing was shown because the interests the association sought to protect were not shown to be germane to its purpose. Georgiacarry.org, Inc. v. Allen, 299 Ga. 716 , 791 S.E.2d 800 , 2016 Ga. LEXIS 611 (2016).

Railroad companies are included in word, “person.” Western & Atl. R.R. v. Turner, 72 Ga. 292 , 1884 Ga. LEXIS 258 (1884). See also South-Western R.R. v. Paulk, 24 Ga. 356 , 1858 Ga. LEXIS 211 (1858).

Bank. —

Municipality may tax a bank as a “person”. Mayor of Macon v. Huff, 60 Ga. 133 , 1878 Ga. LEXIS 398 (1878).

Right to obtain a supersedeas extends to insolvent corporations. Collins Park & B.R.R. v. Short Elec. Ry., 98 Ga. 62 , 25 S.E. 929 , 1895 Ga. LEXIS 604 (1895).

Corporation not “person” if not within provision’s purpose and intent, or attempt to exclude appears. —

A corporation is not impliedly within a statutory provision applicable to persons if it is not within the purpose and intent of the provision, or if an attempt to exclude it otherwise appears. Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4 , 177 S.E. 803 , 1934 Ga. LEXIS 443 (1934).

Corporation was person for RICO purposes. —

On remand from the U.S. Supreme Court, a class action suit filed by legal employees of a Georgia rug manufacturer, alleging state RICO violations based on the widespread hiring of illegal aliens in order to depress the hourly wages of its workers, survived a motion to dismiss for failure to state a claim; the federal appellate court deferred to the Supreme Court of Georgia’s holding that O.C.G.A. § 16-14-4 , when read in conjunction with O.C.G.A. §§ 1-3-3(14) and 16-1-3(12) , provided that “any person” could be sued under the Georgia RICO statute, including corporations such as the rug manufacturer. Williams v. Mohawk Indus., 465 F.3d 1277, 2006 U.S. App. LEXIS 24306 (11th Cir. 2006), cert. denied, 549 U.S. 1260, 127 S. Ct. 1381 , 167 L. Ed. 2 d 174, 2007 U.S. LEXIS 2798 (2007).

Averment in an indictment that representations were made to a corporation is sufficient, for this was a representation to a person, although an artificial one. Turnipseed v. State, 53 Ga. App. 194 , 185 S.E. 403 , 1936 Ga. App. LEXIS 34 (1936).

Bank or trust company’s authority to appear as next friend involves consideration of charter power. —

While the term, “person” will ordinarily include a corporation, the question of the authority of a bank or trust company to appear as a next friend involves a consideration of the charter power, as well as the general law. Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4 , 177 S.E. 803 , 1934 Ga. LEXIS 443 (1934).

“Preceding”

Different signification is given “preceding,” “aforesaid,” and “following,” if required by context and facts of the case. Simpson v. Robert, 35 Ga. 180 , 1866 Ga. LEXIS 189 (1866).

“Property”

“Estate” and “character of estate” have reference to the interest in the property, which shows that, while realty and personalty are different kinds of “property,” they are not different kinds of estates. DeVaughn v. McLeroy, 82 Ga. 687 , 10 S.E. 211 , 1889 Ga. LEXIS 322 (1889).

Military salary not “present” in every state for child support purposes. —

The salary of an armed forces member is not “property” which is constructively “present” in every state for purposes of 42 U.S.C. § 659(a) . Williamson v. Williamson, 247 Ga. 260 , 275 S.E.2d 42 , 1981 Ga. LEXIS 665, cert. denied, 454 U.S. 1097, 102 S. Ct. 669 , 70 L. Ed. 2 d 638, 1981 U.S. LEXIS 2842 (1981).

“Property” in apportionment statute included real, personal, tangible, and intangible property. —

O.C.G.A. § 51-12-33, Georgia’s apportionment statute, applied to tort claims for damage to tangible and intangible property and, therefore, applied to purely pecuniary losses. FDIC v. Loudermilk, 305 Ga. 558 , 826 S.E.2d 116 , 2019 Ga. LEXIS 186 (2019).

“Road”

Inclusion of bridges. —

“Road” includes all the bridges thereon, unless the context requires a different construction. Wright v. Floyd County, 1 Ga. App. 582 , 58 S.E. 72 , 1907 Ga. App. LEXIS 46 (1907).

“Seal”

Necessary recital and attachment. —

To render a private writing an instrument under seal, it is only necessary that it recite in the body that a “seal” is used or contemplated, or that a scrawl or other mark intended as a “seal” be annexed or affixed. Stansell v. Corley, 81 Ga. 453 , 8 S.E. 868 , 1888 Ga. LEXIS 263 (1888).

To constitute a sealed instrument, it must contain a recital in the body of the instrument to the effect that it is given under seal, and the signature of the party to the instrument must have attached thereto a “seal” or scroll. In other words, the rule is that there must be both a recital in the body of the instrument of an intention to use a seal and the affixing of the “seal” or scroll after the signature. Chastain v. L. Moss Music Co., 83 Ga. App. 570 , 64 S.E.2d 205 , 1951 Ga. App. LEXIS 910 (1951).

Additional recital above signature of promissory note’s accommodation endorser unnecessary. —

Where the language in the face of a promissory note recites that it is a sealed instrument, and the signature of an accommodation endorser on the back of the note is accompanied by a “seal” or its equivalent, it is unnecessary for an additional recital to appear on the back of the note above the signature of the endorser that the endorser’s obligation is one under seal in order to render it such, and this is for the reason that the endorser’s endorsement under seal accepts and binds the endorser, as a surety, upon the contract of the maker on the face of the paper, which includes the recitals above the signature of the maker. Hamby v. Crisp, 48 Ga. App. 418 , 172 S.E. 842 , 1934 Ga. App. LEXIS 91 (1934).

“Witness our hand and seal” does not alone make a note a sealed instrument, without the addition of a seal or scroll. Willhelms v. Partoine, 72 Ga. 898 , 1884 Ga. LEXIS 339 (1884).

Bond signed by executing party with written scroll. —

Where a bond was signed by the party executing it, and opposite the party’s name was an ink scroll with the word “seal” written within it, it was held that it was to be considered a sealed instrument. Williams v. Greer, 12 Ga. 459 , 1853 Ga. LEXIS 14 (1853).

Scroll may be adopted by a corporation, either as a common “seal” or as a “seal” for a special purpose. Johnston v. Crawley, 25 Ga. 316 , 1858 Ga. LEXIS 73 (1858); American Inv. Co. v. Cable Co., 4 Ga. App. 106 , 60 S.E. 1037 , 1908 Ga. App. LEXIS 220 (1908).

“Sickness”

Definition of “sickness” is codification from the decision in Martin v. Waycross Coca-Cola Bottling Co., 18 Ga. App. 226 , 89 S.E. 495 (1916), which was an action for damages based on the alleged negligence of the defendant causing the sickness of the plaintiff; that decision quotes the definition of “sickness” in Black’s Law Dictionary as including “any morbid condition of the body . . . which for the time being hinders and prevents the organs from normally discharging their several functions.” American Life Ins. Co. v. Stone, 78 Ga. App. 98 , 50 S.E.2d 231 , 1948 Ga. App. LEXIS 689 (1948).

“Illness” and “sickness or disease” are synonymous terms. American Life Ins. Co. v. Stone, 78 Ga. App. 98 , 50 S.E.2d 231 , 1948 Ga. App. LEXIS 689 (1948).

Popular meanings of “sickness” and “disease.” —

The words “sickness” and “disease” are technically synonymous, but when given the popular meaning, as required in construing a contract of insurance, “sickness” is a condition interfering with one’s usual activities, whereas “disease” may exist without such result. Georgia Int'l Life Ins. Co. v. Harden, 158 Ga. App. 450 , 280 S.E.2d 863 , 1981 Ga. App. LEXIS 2250 (1981).

“Sickness” requires incapacity. —

One is not ordinarily considered sick who performs one’s usual occupation, though some organ of the body may be affected, but is regarded as sick when such diseased condition has advanced far enough to incapacitate the person. Georgia Int'l Life Ins. Co. v. Harden, 158 Ga. App. 450 , 280 S.E.2d 863 , 1981 Ga. App. LEXIS 2250 (1981).

Construction of insurance policy. —

In determining what losses are covered by policies insuring against losses on account of “disease” or “sickness,” the general rule that ambiguous or uncertain provisions will be construed most favorably to the insured is applied. Georgia Int'l Life Ins. Co. v. Harden, 158 Ga. App. 450 , 280 S.E.2d 863 , 1981 Ga. App. LEXIS 2250 (1981).

Hernia can result from “sickness” or “disease.” —

While a hernia is frequently caused by an accident or an injury, it does not follow that a hernia is never the result of a “sickness” or “disease.” American Life Ins. Co. v. Stone, 78 Ga. App. 98 , 50 S.E.2d 231 , 1948 Ga. App. LEXIS 689 (1948).

It was jury question whether or not hernia not disabling to any extent was “sickness” within the meaning of an insurance policy. American Life Ins. Co. v. Stone, 78 Ga. App. 98 , 50 S.E.2d 231 , 1948 Ga. App. LEXIS 689 (1948).

“Signature”

“Signature” includes mark, even though the mark is not between the given name and surname. Horton v. Murden, 117 Ga. 72 , 43 S.E. 786 , 1903 Ga. LEXIS 154 (1903).

Entry of levy by another good where illiterate officer signs with mark. —

Where an officer making a levy cannot write, an entry thereof written out by another, in the officer’s presence and by the officer’s procurement, and signed by the officer with the officer’s mark is good. Cox v. Montford, 66 Ga. 62 , 1880 Ga. LEXIS 12 (1880).

Witness who signs by mark, if capable of testifying, is just as competent a witness as one likewise capable of testifying who writes one’s own name. Gillis v. Gillis, 96 Ga. 1 , 23 S.E. 107 , 1895 Ga. LEXIS 1 (1895).

Evidence that attorney physically enabled testatrix to make mark sufficient to find that will “signed.” —

Where there was evidence that the attorney who prepared the will enabled the testatrix, who because of the testatrix’s physical condition could not write, to make the testatrix’s mark by placing the testatrix’s hand upon the pen as the mark was made, this was sufficient to authorize the jury to find that the testatrix “signed” the will. Crutchfield v. McCallie, 188 Ga. 833 , 5 S.E.2d 33 , 1939 Ga. LEXIS 636 (1939).

“Then”

When used as adverb of time, Supreme Court has defined “then” as meaning “immediately afterwards.” Evans v. Edenfield, 170 Ga. 805 , 154 S.E. 257 , 1930 Ga. LEXIS 244 (1930).

“Trespass”

Railroad blocking highway for unreasonable time. —

Where a railroad company blocks with its cars a crossing on a public highway for a needless or unreasonable length of time, a pedestrian, after waiting a reasonable time for the cars to be removed, may turn aside to avoid the obstruction and pass over the property of the company without being a “trespasser” in so doing. Yarbrough v. Georgia R.R. & Banking Co., 48 Ga. App. 314 , 172 S.E. 808 , 1934 Ga. App. LEXIS 54 (1934).

Evidence insufficient to support “trespass” claim. —

In an action against a utility and power company for damages on theories of “trespass” and nuisance arising from electromagnetic radiation, a grant of summary judgment on the trespass claim and directed verdict on the nuisance claim were proper for policy reasons since the scientific evidence was inconclusive regarding the invasive quality of magnetic fields from power lines. Jordan v. Georgia Power Co., 219 Ga. App. 690 , 466 S.E.2d 601 , 1995 Ga. App. LEXIS 1120 (1995).

Summary judgment was properly entered for a realtor as to a landowner’s trespass claim, as the landowner never determined that the silt fence was actually on the landowner’s property, and the realtor testified that the fence was located on a public right-of-way. Sorrow v. Hadaway, 269 Ga. App. 446 , 604 S.E.2d 197 , 2004 Ga. App. LEXIS 884 (2004).

“Year”

Section has no application where the word “year” is used in a lease contract. Brooke v. Atlanta Woolen Mills, 18 Ga. App. 505 , 89 S.E. 598 , 1916 Ga. App. LEXIS 1062 (1916).

Word “year,” means a calendar year, unless a different meaning is apparent from the context. Dowling v. Lester, 74 Ga. App. 290 , 39 S.E.2d 576 , 1946 Ga. App. LEXIS 521 (1946).

Different meaning of “year” may appear from the context of an Act. Lane v. Tarver, 153 Ga. 570 , 113 S.E. 452 , 1922 Ga. LEXIS 126 (1922); Southerland v. Bradshaw, 255 Ga. 455 , 339 S.E.2d 579 , 1986 Ga. LEXIS 573 (1986).

Term “current year” refers to the calendar year, and not an arbitrary business year fixed by local custom or otherwise. King v. Johnson, 96 Ga. 497 , 23 S.E. 500 , 1895 Ga. LEXIS 119 (1895).

General Consideration

This is the general rule of statutory construction. Focht v. American Cas. Co., 103 Ga. App. 138 , 118 S.E.2d 737 , 1961 Ga. App. LEXIS 885 (1961).

Legislative intent governs whether law prospective in application. —

Where it is possible to determine the intent of the General Assembly, unless there are constitutional obstacles, the intent of the General Assembly will govern as to whether a law is prospective only in its application. Focht v. American Cas. Co., 103 Ga. App. 138 , 118 S.E.2d 737 , 1961 Ga. App. LEXIS 885 (1961).

Legislation affecting substantive rights operates prospectively only. —

Although legislation which involves mere procedural or evidentiary changes may operate retrospectively, legislation which affects substantive rights may operate prospectively only. Enger v. Erwin, 245 Ga. 753 , 267 S.E.2d 25 , 1980 Ga. LEXIS 924 (1980).

Appellate courts must apply law as it exists at time of the appellate court judgment, even though it may change the judgment of the trial court which was correct at the time it was rendered. Clary v. State, 151 Ga. App. 301 , 259 S.E.2d 697 , 1979 Ga. App. LEXIS 2535 (1979).

Impairing Obligation of Contracts

Repealing Act will not be given a retroactive operation, so as to divest previously acquired rights, or to impair the obligation of a contract lawfully made by virtue of and pending the existence of the law repealed. Bank of Norman Park v. Colquitt County, 169 Ga. 534 , 150 S.E. 841 , 1929 Ga. LEXIS 396 (1929).

Substantive right which has vested cannot be changed or impaired by a subsequent statute. Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443 , 206 S.E.2d 693 , 1974 Ga. App. LEXIS 1437 (1974).

Test is whether there was a vested right. If so, no subsequent legislative Act could impair it, but if not, there is no bar to a change or abolition of it at any time before it becomes fixed by a judgment. Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443 , 206 S.E.2d 693 , 1974 Ga. App. LEXIS 1437 (1974); Aetna Ins. Co. v. Windsor, 133 Ga. App. 159 , 210 S.E.2d 373 , 1974 Ga. App. LEXIS 999 (1974).

This section forbids the passage of laws which impair vested rights. The test is whether there was a vested right. If so, no subsequent legislative Act could impair it, but if not, there is no bar to a change or abolition of it at any time before it becomes fixed by a judgment. Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605 , 234 S.E.2d 165 , 1977 Ga. App. LEXIS 2014 (1977), overruled in part, Deal v. Coleman, 294 Ga. 170 , 751 S.E.2d 337 , 2013 Ga. LEXIS 965 (2013).

Subrogation rights. —

Any subrogation rights are vested and therefore cannot be abrogated by a later statute. Blaylock v. Georgia Mut. Ins. Co., 239 Ga. 462 , 238 S.E.2d 105 , 1977 Ga. LEXIS 1210 (1977).

Subsequent legislation cannot impair rights created by constitutional Act. —

A constitutional Act of the General Assembly is equivalent to a contract, and when performed, is a contract executed; whatever rights are thereby created, subsequent legislation cannot impair. Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443 , 206 S.E.2d 693 , 1974 Ga. App. LEXIS 1437 (1974).

A constitutional Act of the General Assembly has been found to be the equivalent of a contract and the rights created thereby may not be impaired by subsequent legislation. Enger v. Erwin, 245 Ga. 753 , 267 S.E.2d 25 , 1980 Ga. LEXIS 924 (1980).

Section applicable to contracts existing at time of section’s enactment. —

This section, so far as it inhibits the state from passing a law impairing the obligation of contracts, applies to contracts existing at the time of the enactment of the section. Redd v. Hargroves, 40 Ga. 18 , 1869 Ga. LEXIS 4 (1869) see also Bass v. Ware, 34 Ga. 386 , 1866 Ga. LEXIS 107 (1866).

Legislative instructions to officer resorted to in determining Act’s intention. —

The General Assembly cannot, by resolution, change the obligation of a contract made under a previous Act. But if they instruct a public officer as to his duties under the contract, the resulting duties may be resorted to in determining the intention of the General Assembly in passing the Act. Georgia Penitentiary Co. No. 2 v. Nelms, 65 Ga. 67 , 65 Ga. 68 , 1880 Ga. LEXIS 100 (1880).

State’s obligation to pay bonds not impaired by requiring registration. —

An Act requiring registration of past matured bonds neither repudiates bonds, nor takes away any remedy from the holder, nor impairs the state’s obligation to pay any valid bonds. Gurnee, Jr. & Co. v. Speer, 68 Ga. 711 , 1882 Ga. LEXIS 89 (1882).

Employment contract not impaired by taking away employer’s right against interfering parties. —

An Act taking away the right of an employer against parties interfering with the contract of employment does not impair the obligation of the contract. Caldwell v. O'Neal, 117 Ga. 775 , 45 S.E. 41 , 1903 Ga. LEXIS 332 (1903).

Land purchaser under deed older than former provision may acquire title to growing crops. —

Former Code 1910, § 3651 (1), which declares all crops to be personalty, does not prevent the purchaser of lands under a security deed older than the section from acquiring the title to crops growing in such lands. Chason v. O'Neal, 158 Ga. 725 , 124 S.E. 519 , 1924 Ga. LEXIS 332 (1924) (For present comparable provisions, see O.C.G.A. § 11-2-107 ).

Contract by county school superintendent in 1918 for school supplies not void. —

A contract made and an indebtedness incurred by a county superintendent of schools in 1918, on behalf of the county board of education, for school supplies and furnishings, which were placed in the schoolhouses of the county and put to use by the pupils thereof, was prior to the enactment of former Code 1933, § 32-928 (see now O.C.G.A. § 20-2-504 ,) and therefore was not void under this provision, which was applicable to contracts made before its passage. Board of Educ. v. Southern Mich. Nat'l Bank, 184 Ga. 641 , 192 S.E. 382 , 1937 Ga. LEXIS 600 (1937).

Provisions on reversion of realty to guarantor unconstitutional as applied to prior executed deed. —

Ga. L. 1953, Nov.-Dec. Sess., p. 313, § 1 (see now O.C.G.A. § 44-14-80 ), providing that title to real property conveyed to secure a debt should revert to the grantor when the debt becomes 20 years past due, imposed conditions upon a grantee not in existence at the time of the execution of the grantee’s contract, divested the grantee of the grantee’s vested right to the property, and impaired the obligation of the grantee’s contract, and, as applied to the deed, which was executed prior to the passage and effective date of the section, is unconstitutional. Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 , 1959 Ga. LEXIS 550 (1959).

Application to O.C.G.A. § 16-17-1 . —

Request by creditors for a preliminary injunction blocking the enforcement of O.C.G.A. §§ 16-17-1 to 16-17-10 (the Act), which prohibited payday loans, did not address a case or controversy because the Act did not apply retroactively to loans made before its effective date; even if the Georgia Attorney General had not explicitly conceded this point, O.C.G.A. § 1-3-5 prohibited the retroactive application to impair the obligation of existing contracts. BankWest, Inc. v. Baker, 446 F.3d 1358, 2006 U.S. App. LEXIS 10580 (11th Cir. 2006).

Retrospective Operation

What enactments are prohibited. —

Only retrospective enactments which are ex post facto in their character, that is, those whose effect is to impair the obligation of contracts, or to divest vested rights, are within the constitutional prohibition against retroactive legislation. Hart v. Owens-Illinois, Inc., 161 Ga. App. 831 , 289 S.E.2d 544 , 1982 Ga. App. LEXIS 2053, rev'd, 250 Ga. 397 , 297 S.E.2d 462 , 1982 Ga. LEXIS 1055 (1982).

Retrospective statutes are forbidden by the first principles of justice. Redd v. Hargroves, 40 Ga. 18 , 1869 Ga. LEXIS 4 (1869); Jones v. Rountree, 96 Ga. 230 , 23 S.E. 311 , 1895 Ga. LEXIS 45 (1895); Bank of Norman Park v. Colquitt County, 169 Ga. 534 , 150 S.E. 841 , 1929 Ga. LEXIS 396 (1929).

Retroactive laws are prohibited. Anthony v. Penn, 212 Ga. 292 , 92 S.E.2d 14 , 1956 Ga. LEXIS 345 (1956).

Ex post facto laws are prohibited. Akins v. State, 231 Ga. 411 , 202 S.E.2d 62 , 1973 Ga. LEXIS 724 (1973).

Term “ex post facto” refers to criminal statutes. Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605 , 234 S.E.2d 165 , 1977 Ga. App. LEXIS 2014 (1977), overruled in part, Deal v. Coleman, 294 Ga. 170 , 751 S.E.2d 337 , 2013 Ga. LEXIS 965 (2013).

Settled rule for the construction of statutes, is not to give them a retrospective operation, unless the language so imperatively requires. Moore v. Gill, 43 Ga. 388 , 1871 Ga. LEXIS 258 (1871); Bussey v. Bishop, 169 Ga. 251 , 150 S.E. 78 , 1929 Ga. LEXIS 328 (1929), overruled, Canton Textile Mills, Inc. v. Lathem, 253 Ga. 102 , 317 S.E.2d 189 , 1984 Ga. LEXIS 824 (1984); Bank of Norman Park v. Colquitt County, 169 Ga. 534 , 150 S.E. 841 , 1929 Ga. LEXIS 396 (1929); Seaboard Air Line Ry. v. Benton, 175 Ga. 491 , 165 S.E. 593 , 1932 Ga. LEXIS 279 (1932); Walker County Fertilizer Co. v. Napier, 184 Ga. 861 , 193 S.E. 770 , 1937 Ga. LEXIS 647 (1937); National Sur. Corp. v. Gatlin, 192 Ga. 293 , 15 S.E.2d 180 , 1941 Ga. LEXIS 442 (1941); FDIC v. Beasley, 193 Ga. 727 , 20 S.E.2d 23 , 1942 Ga. LEXIS 472 (1942); Eibel v. Forrester, 194 Ga. 439 , 22 S.E.2d 96 , 1942 Ga. LEXIS 613 (1942); Jaro, Inc. v. Shields, 123 Ga. App. 391 , 181 S.E.2d 110 , 1971 Ga. App. LEXIS 1236 (1971); Town of Lyerly v. Short, 234 Ga. 877 , 218 S.E.2d 588 , 1975 Ga. LEXIS 1312 (1975); Watkins v. Barber-Colman Co., 625 F.2d 714, 1980 U.S. App. LEXIS 14143 (5th Cir. 1980); Landmark Fin. Corp. v. Cox, 2 Bankr. 739, 1980 U.S. Dist. LEXIS 17788 (S.D. Ga. 1980).

Laws prescribe only for the future. and generally have no retroactive operation, and the settled rule for the construction of statutes is not to give them a retrospective operation, unless the language imperatively requires such construction. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146 , 25 S.E.2d 60 , 1943 Ga. App. LEXIS 32 (1943).

Laws prescribe for the future. Unless a statute, either expressly or by necessary implication, shows that the General Assembly intended that it operate retroactively, it will be given only prospective application. Anthony v. Penn, 212 Ga. 292 , 92 S.E.2d 14 , 1956 Ga. LEXIS 345 (1956).

Statutes operate retrospectively where legislative intent or purpose clear. —

Statutes prescribe only for the future and generally do not have a retrospective operation. They shall be so construed as to give them a prospective operation only, and they shall be permitted to operate retrospectively only where the intention to have them so operate is clear and undoubted. Talmadge v. Cordell, 170 Ga. 13 , 152 S.E. 91 , 1930 Ga. LEXIS 386 (1930).

The general rule is that laws prescribe only for the future and usually will not be given a retrospective operation; however, they will be given a retrospective effect when the language imperatively requires it, or when an examination of the Act as a whole leads clearly to the conclusion that such was the legislative purpose. Barnett v. D.O. Martin Co., 191 Ga. 11 , 11 S.E.2d 210 , 1940 Ga. LEXIS 605 (1940).

The general rule is that laws prescribe only for the future and usually will not be given a retrospective operation. They will be given a retrospective effect, however, when the language imperatively requires it, or when an examination of the Act as a whole leads clearly to the conclusion that such was the legislative purpose. It is at last and always a question of legislative intent. Biddle v. Moore, 87 Ga. App. 524 , 74 S.E.2d 552 , 1953 Ga. App. LEXIS 787 (1953).

O.C.G.A. § 1-3-5 expresses only a preference against retroactive applications. It does not absolutely forbid retroactive applications. Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1991 U.S. App. LEXIS 1531 (11th Cir. 1991).

Where no express intent, presumed that legislation prospective. —

Where the legislative intent as to whether a statute is to be given retrospective effect is not expressly stated, it is presumed that the intent was that the legislation be prospective in effect. Biddle v. Moore, 87 Ga. App. 524 , 74 S.E.2d 552 , 1953 Ga. App. LEXIS 787 (1953).

Amendments of previous statutes are construed as intended to have operation on future transactions only, and as having no retrospective purpose not plainly expressed in the amendment. FDIC v. Beasley, 193 Ga. 727 , 20 S.E.2d 23 , 1942 Ga. LEXIS 472 (1942).

It is a general rule applicable to amending statutes that they are to be construed as intended to have operation on future transactions only, and as having no retroactive purpose not plainly expressed. Layton v. Liberty Loans, 152 Ga. App. 504 , 263 S.E.2d 167 , 1979 Ga. App. LEXIS 2976 (1979), overruled, Financeamerica Corp. v. Drake, 154 Ga. App. 811 , 270 S.E.2d 449 , 1980 Ga. App. LEXIS 2402 (1980).

Trial court did not err when the court applied the 2006 version of O.C.G.A. § 9-11-68 in the property owners’ action against the builders because inasmuch as the owners did not obtain any judgment amount in the owners favor it did not matter whether the original or amended version of the statute was applied, or whether the amendment was substantive or procedural in nature; under either version of the statute the owners were liable for the builders’ reasonable fees and expenses from the date the offer of settlement was rejected. O'Leary v. Whitehall Constr., 288 Ga. 790 , 708 S.E.2d 353 , 2011 Ga. LEXIS 262 (2011).

Former O.C.G.A. 11-9-403 construed. —

The legislature intended that the 1985 amendment of former O.C.G.A. § 11-9-403 (filing of financing statement) should apply to financing statements originally filed on or after July 1, 1985 and should not apply retroactively to prior filed financing statements. Rainbow Mfg. Co. v. Bank of Fitzgerald, 129 Bankr. 702, 1991 Bankr. LEXIS 1028 (Bankr. M.D. Ga. 1991), rev'd, 150 Bankr. 857, 1993 U.S. Dist. LEXIS 1829 (M.D. Ga. 1993).

Repealing Act will not be given a retrospective operation. Dennington v. Mayor of Roberta, 130 Ga. 494 , 61 S.E. 20 , 1908 Ga. LEXIS 324 (1908).

Statute creating new obligation, or destroying or impairing vested rights, deemed retroactive. —

A statute is “retroactive” in the legal sense when it creates a new obligation on transactions or considerations already past, or destroys or impairs vested rights. Ross v. Lettice, 134 Ga. 866 , 68 S.E. 734 , 1910 Ga. LEXIS 378 (1910).

Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146 , 25 S.E.2d 60 , 1943 Ga. App. LEXIS 32 (1943).

Statute intending to affect antecedent transactions and rights. —

A statute does not operate retrospectively because it relates to antecedent facts, but if it is intended to affect transactions which occurred or rights which accrued before it became operative as such, and ascribe to them essentially different effects, in view of the law at the time of their occurrence, it is retroactive in character. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146 , 25 S.E.2d 60 , 1943 Ga. App. LEXIS 32 (1943).

A statute is “retroactive” in its legal sense which creates a new obligation on transactions or considerations already past, or destroys or impairs vested rights. A statute does not operate retrospectively because it relates to antecedent facts, but if it is intended to affect transactions which occurred or rights which accrued before it became operative as such, and ascribe to them essentially different effects, in view of the law at the time of their occurrence, it is retroactive in character. Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 , 1959 Ga. LEXIS 550 (1959).

Section on “new county” not applicable to existing counties. —

The words “new county,” as used in a section which relates to charging the administration of an estate, did not apply to counties existing at the time the section became effective. Jones v. Rountree, 96 Ga. 230 , 23 S.E. 311 , 1895 Ga. LEXIS 45 (1895).

Legislative Acts will not be so construed where they would effect revocation of a will. Redd v. Hargroves, 40 Ga. 18 , 1869 Ga. LEXIS 4 (1869).

Title 33 (Insurance) was not intended to and could not have had any retrospective effect. Chatham County Hosp. Auth. v. John Hancock Mut. Life Ins. Co., 325 F. Supp. 614, 1971 U.S. Dist. LEXIS 13915 (S.D. Ga. 1971).

Georgia workers’ compensation law that takes effect after an employment relationship is terminated should not be applied to determine the liability of a party to that relationship since such would constitute an impermissible retrospective application of the law. Hall v. Synalloy Corp., 540 F. Supp. 263, 1982 U.S. Dist. LEXIS 14159 (S.D. Ga. 1982).

Product liability provision not given retroactive effect. —

Since a new cause of action in tort has been established by the General Assembly by its amendment of former Code 1933, § 105-106 (see now O.C.G.A. § 51-1-11) in 1968, it follows that this provision may not be given retroactive effect. Wansor v. George Hantscho Co., 595 F.2d 218, 1979 U.S. App. LEXIS 14661 (5th Cir. 1979).

O.C.G.A. § 13-8-2.1 construed. —

Retroactive application of O.C.G.A. § 13-8-2.1 , permitting contracts in partial restraint of trade, did not violate this Code section. Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1991 U.S. App. LEXIS 1531 (11th Cir. 1991).

Criminal Justice Act construed. —

Upon the defendant’s constitutional challenge to the retrospective application of three provisions of the Criminal Justice Act, 2005 Ga. Laws 20 (Act), no reversible error resulted from challenges to the closing arguments and admission of character evidence, as: (1) the former was not distinctly ruled upon by the lower court; and (2) the lower court sustained objections to the admissibility of character evidence, and thus, the state could not introduce character evidence regarding the defendant’s prior criminal convictions; moreover, a change in the number of the defendant’s peremptory challenges by the Act did not affect any protected right by the application of the amended version of O.C.G.A. § 15-12-165 , as strikes were procedural and not substantive in nature. Madison v. State, 281 Ga. 640 , 641 S.E.2d 789 , 2007 Ga. LEXIS 180 (2007).

Remedial Laws

Laws operating upon the remedy are not unconstitutional and void. Crawford v. Irwin, 211 Ga. 241 , 85 S.E.2d 8 , 1954 Ga. LEXIS 539 (1954).

Remedial change in the law may validly operate retroactively. Bryan v. Bryan, 242 Ga. 826 , 251 S.E.2d 566 , 1979 Ga. LEXIS 760 (1979).

Statutes which are merely remedial in nature may be applied to pending actions. Landmark Fin. Corp. v. Cox, 2 Bankr. 739, 1980 U.S. Dist. LEXIS 17788 (S.D. Ga. 1980).

Mere remedial Acts may apply to rights accruing prior to their passage. Bauer Int'l Corp. v. Cagle's, Inc., 225 Ga. 684 , 171 S.E.2d 314 , 1969 Ga. LEXIS 612 (1969).

Georgia Whistleblower Act amendments not retroactive. —

New remedies under O.C.G.A. § 45-1-4(e)(2) and (f), which were added by a 2005 amendment to the Georgia Whistleblower Act (GWA), do not apply retroactively under O.C.G.A. § 1-3-5 ; thus, a port authority officer who asserted claims under the GWA in connection with the officer’s 2004 discharge was limited to the remedies provided by the GWA as the GWA existed in 2004. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253, 2006 U.S. Dist. LEXIS 96164 (S.D. Ga. 2006).

Curing remedy’s defects, or conforming or enforcing rights. —

Laws curing defects in the remedy, or confirming rights already existing, or adding to the means of securing and enforcing the rights, may be passed and applied retroactively. Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163, 1971 U.S. Dist. LEXIS 10329 (N.D. Ga. 1971).

State may vary or modify remedies if substantive character not destroyed. —

So long as the state undertakes to furnish remedies, it may vary or modify them at pleasure, if the state does not destroy their substantive character. Cutts Johnson v. Hardee, 38 Ga. 350 , 1868 Ga. LEXIS 103 (1868) see also Gardner v. Georgia R. & B. Co., 117 Ga. 522 , 43 S.E. 863 , 1903 Ga. LEXIS 284 (1903) (construing former Code 1895, § 4657 et seq.).

Retrospective statutes not void where they only confirm existing rights, cure defects, and enforce existing obligations. Remedial statutes, although retrospective, are not void, provided they do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 142 Ga. 841 , 83 S.E. 946 , 1914 Ga. LEXIS 569 (1914), aff'd, 248 U.S. 372, 39 S. Ct. 117 , 63 L. Ed. 309 , 16 Ohio L. Rep. 502, 1919 U.S. LEXIS 2324 (1919).

Remedial statutes are operative, although of a retrospective nature, provided they do not impair contracts, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. Seaboard Air Line Ry. v. Benton, 175 Ga. 491 , 165 S.E. 593 , 1932 Ga. LEXIS 279 (1932).

Laws which act upon remedies alone, although retrospective, will be enforced, provided they do not impair the obligation of contracts or disturb absolutely vested rights, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. Byers v. Black Motor Co., 65 Ga. App. 773 , 16 S.E.2d 478 , 1941 Ga. App. LEXIS 405 (1941).

Where new statute substantial reenactment of old, remedies remain in force. —

As a general rule, the repeal of a statute without any reservation takes away all remedies given by the repealed statute. But where a new statute is a substantial reenactment of an old one, and expressly recognizes and makes provision in regard to the rights and remedies which accrued under it, the general rule is not applicable and the remedies remain in force. Lanham & Sons Co. v. City of Rome, 136 Ga. 398 , 71 S.E. 770 , 1911 Ga. LEXIS 559 (1911).

Statutes relating to remedies or procedure may be given retrospective construction. —

A generally recognized exception to the rule that laws prescribe only for the future is that statutes relating to remedies or procedure may be given a retrospective or retroactive construction. Focht v. American Cas. Co., 103 Ga. App. 138 , 118 S.E.2d 737 , 1961 Ga. App. LEXIS 885 (1961).

The presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the courts, even where the alteration which the statutes make has been disadvantageous to one of the parties. Hart v. Owens-Illinois, Inc., 161 Ga. App. 831 , 289 S.E.2d 544 , 1982 Ga. App. LEXIS 2053, rev'd, 250 Ga. 397 , 297 S.E.2d 462 , 1982 Ga. LEXIS 1055 (1982).

Prohibition of ex post facto laws applies only to substantive, but not procedural, rights. Cannon v. State, 246 Ga. 754 , 272 S.E.2d 709 , 1980 Ga. LEXIS 1260 (1980).

Section distinguishes laws looking to remedy or mode of trial. —

Georgia has a statutory policy disapproving the retroactive application of new statutes. However, this section expressly distinguishes laws looking only to the remedy or mode of trial. Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593 , 27 L. Ed. 2 d 741, 1971 U.S. LEXIS 139 (1971).

Repealing statute regulating court procedure not within section’s inhibition. —

A repealing statute which did not deprive the defendant of any substantial right but only regulated the procedure of the court, in which the defendant could acquire no right, is not within the inhibition against the passage of retroactive laws. Pritchard v. Savannah St. & Rural Resort R.R., 87 Ga. 294 , 13 S.E. 493 , 1891 Ga. LEXIS 155 (1891); Baker v. Smith, 91 Ga. 142 , 16 S.E. 967 , 1892 Ga. LEXIS 538 (1892).

Statute void if it takes substantial right from accused. —

While it is the rule that no one has a vested right in a mere mode of procedure, so that a statute merely regulating procedure and leaving untouched all the substantial protections with which existing law surrounds the person accused of a crime is not within the constitutional inhibition against ex post facto laws, yet a statute is void and ineffective as related to previous offenses if it takes from the accused a substantial right given to the accused by the law in force at the time to which the accused’s guilt relates, and such a statute cannot be sustained simply because, in a general sense, it may be said to regulate procedure. Winston v. State, 186 Ga. 573 , 198 S.E. 667 , 1938 Ga. LEXIS 640 (1938).

Act which merely changes rule of evidence is within the sphere of ordinary legislative competency. Slaughter v. Culpepper, 35 Ga. 25 , 1866 Ga. LEXIS 153 (1866).

There is no ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced at the time the offense was committed. Bryan v. Bryan, 242 Ga. 826 , 251 S.E.2d 566 , 1979 Ga. LEXIS 760 (1979).

Procedure changed pending appeal. —

Where the controlling procedural rule is changed pending appeal, the case must be concluded in the trial court pursuant to the changed provisions of the rule. Clary v. State, 151 Ga. App. 301 , 259 S.E.2d 697 , 1979 Ga. App. LEXIS 2535 (1979).

Changing municipal tax laws. —

The changing of municipal tax laws by an Act of the General Assembly is not contrary to this section because the change applies to taxes due at the time of the passage of the Act where the change only affects the remedy. DuBignon v. Mayor of Brunswick, 106 Ga. 317 , 32 S.E. 102 , 1898 Ga. LEXIS 90 (1898).

Act enforcing previously fixed stockholders’ liability. —

Where the stockholders’ liability is fixed by one Act, and a subsequent Act provides that this liability shall be considered as an asset of the bank and enforced by the receiver, the latter Act is remedial in its nature, does not affect any vested right of the creditor, and is applicable. Moore v. Ripley, 106 Ga. 556 , 32 S.E. 647 , 1899 Ga. LEXIS 724 (1899).

Act providing for cost of paving, passed after Act providing for paving, is not unlawful or objectionable. Georgia Ry. & Elec. Co. v. Town of Decatur, 29 Ga. App. 653 , 116 S.E. 645 , 1923 Ga. App. LEXIS 152 (1923) see also Allen v. Schweigert, 110 Ga. 323 , 35 S.E. 315 , 1900 Ga. LEXIS 422 (1900); Mills v. Geer, 111 Ga. 275 , 36 S.E. 673 , 1900 Ga. LEXIS 530 (1900); Ross v. Lettice, 134 Ga. 866 , 68 S.E. 734 , 1910 Ga. LEXIS 378 (1910).

Doctrine of election of remedies. —

Almost by definition, the doctrine of election of remedies is procedural and remedial in nature. Douglas County v. Abercrombie, 119 Ga. App. 727 , 168 S.E.2d 870 , 1969 Ga. App. LEXIS 1222 (1969).

Statute of limitation is remedial in nature. Jaro, Inc. v. Shields, 123 Ga. App. 391 , 181 S.E.2d 110 , 1971 Ga. App. LEXIS 1236 (1971).

Three-year statute of limitations that was added to the Georgia Whistleblower Act (GWA) in 2005 in O.C.G.A. § 45-1-4(e)(1) is prospective in nature pursuant to O.C.G.A. § 1-3-5 ; thus, a port authority officer’s GWA claim, which related to the officer’s 2004 discharge, was not affected by the amendment. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253, 2006 U.S. Dist. LEXIS 96164 (S.D. Ga. 2006).

Ga. L. 1968, p. 1419, § 2 (see now O.C.G.A. § 9-10-90 ), which specifically includes corporations in meaning of term “nonresident,” may be applied retroactively. Griffin v. Air S., Inc., 324 F. Supp. 1284, 1971 U.S. Dist. LEXIS 14056 (N.D. Ga. 1971), (commented on in 8 Ga. St. B. J. 414 (1972)).

Former paragraph (3) of Ga. L. 1966, p. 343, § 1 (see now O.C.G.A. § 9-10-91 ) may be applied retroactively. Griffin v. Air S., Inc., 324 F. Supp. 1284, 1971 U.S. Dist. LEXIS 14056 (N.D. Ga. 1971), (commented on in 8 Ga. St. B. J. 414 (1972)).

Subjecting nonresident corporation to jurisdiction retroactively. —

Nonresident corporation may be subjected retroactively to the jurisdiction of this state. Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163, 1971 U.S. Dist. LEXIS 10329 (N.D. Ga. 1971).

Convictions occurring before sentencing provision’s enactment. —

The use of prior convictions which had occurred before the enactment of former Code 1933, § 27-2503 (see now O.C.G.A. § 17-10-2 ), in the sentencing phase of the trial did not amount to an ex post facto application of law. Solomon v. State, 247 Ga. 27 , 277 S.E.2d 1 , 1980 Ga. LEXIS 1295 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2348 , 68 L. Ed. 2 d 863 (1981).

Act denying all remedies on a contract would impair its obligation and be void. West v. Sansom, 44 Ga. 295 , 1871 Ga. LEXIS 374 (1871).

Amendment to workers’ compensation provision on modifying award. —

The 1937 amendment to former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104 ), in which the time for filing applications to review an award on a change in condition is limited to two years from the date the Industrial Board (now State Board of Workers’ Compensation) is notified of the final payment of the claim, does not cover a case where the employee was injured before the adoption of the amendment, although the report of final payment of the claim was made after the amendment. London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146 , 25 S.E.2d 60 , 1943 Ga. App. LEXIS 32 (1943).

Survival statutes. —

A statute authorizing the recovery of medical and funeral expenses by the personal representative of the estate in cases of wrongful death and a statute providing for the survival of causes of action confers upon the personal representative a new substantive right and are not remedial only. Such statutes, therefore, may not be given a retrospective effect so as to apply to the estate of one who died prior to their passage. Biddle v. Moore, 87 Ga. App. 524 , 74 S.E.2d 552 , 1953 Ga. App. LEXIS 787 (1953).

Not reversible error for court to use term “prisoner at bar” instead of “accused.” —

Where the trial court uses the term “the prisoner at bar” instead of “the accused” in its first two voir dire questions in a case prior to the General Assembly changing the terms, it is not reversible error. Clary v. State, 151 Ga. App. 301 , 259 S.E.2d 697 , 1979 Ga. App. LEXIS 2535 (1979).

Issue of attorney’s fees in divorce cases is remedial and ought to be considered broadly by the trial court. Crecelius v. Brooks, 258 Ga. 372 , 369 S.E.2d 743 , 1988 Ga. LEXIS 282 (1988).

General Consideration

Section is applicable to all private relations in which men may place themselves towards each other. Western & A.R.R. v. Bishop, 50 Ga. 465 , 1873 Ga. LEXIS 287 (1873).

One who voluntarily accepts an Act and the benefits it provides cannot question its constitutionality. Senters v. Wright & Lopez, Inc., 220 Ga. 611 , 140 S.E.2d 904 , 1965 Ga. LEXIS 572 (1965).

Principle of estoppel runs throughout law. —

As between individuals, where no question of the general welfare of society or public policy is involved, the principle of estoppel runs throughout the law. Although an Act is unconstitutional and void, it will operate as an estoppel upon the party applying for it, and procuring its passage and accepting its benefits. Christopher v. Christopher, 198 Ga. 361 , 31 S.E.2d 818 , 1944 Ga. LEXIS 425 (1944).

Abrogation of Laws

1.In General

Where the public has an interest in a legal requirement, it may not be waived by the parties. Hilt v. Young, 116 Ga. 708 , 43 S.E. 76 , 1902 Ga. LEXIS 228 (1902).

While a person may generally waive or renounce what the law has established in the person’s favor, the person cannot do so when the waiver affects the public interest. Georgia Fertilizer Co. v. Walker, 171 Ga. 734 , 156 S.E. 820 , 1931 Ga. LEXIS 453 (1931).

Public policy cannot be circumvented by the action of individuals. Christopher v. Christopher, 198 Ga. 361 , 31 S.E.2d 818 , 1944 Ga. LEXIS 425 (1944).

Courts’ power to declare contract void exercised only in cases free from doubt. —

The power of the courts to declare a contract void for being in contravention of a sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt. Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 , 1980 Ga. App. LEXIS 3139 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 , 1981 Ga. LEXIS 1006 (1981).

Contract not contrary to public policy unless declared so, or contrary to morals and law. —

A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law. Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 , 1980 Ga. App. LEXIS 3139 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 , 1981 Ga. LEXIS 1006 (1981).

Provisions of former Code 1933, § 20-504 (see now O.C.G.A. § 13-8-2 ) should not be enlarged without convincing and conclusive reasons. Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 , 1980 Ga. App. LEXIS 3139 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 , 1981 Ga. LEXIS 1006 (1981).

Only authentic and admissible evidence of state’s public policy is constitution, laws, and judicial decisions. Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 , 1980 Ga. App. LEXIS 3139 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 , 1981 Ga. LEXIS 1006 (1981).

2.Specific Illustrations

Pleadings cannot be waived by consent of the parties. This rule is applicable to courts of equity. Central Bank v. Johnson & Smith, 56 Ga. 225 , 1876 Ga. LEXIS 250 (1876).

Law cannot be waived so as to make an experimental case. Habersham v. Wetter, 59 Ga. 11 , 1877 Ga. LEXIS 197 (1877).

Waiver by relatives of notice of proceeding to inquire into sanity of party is ineffectual. Yeoman v. Williams, 117 Ga. 800 , 45 S.E. 73 , 1903 Ga. LEXIS 342 (1903).

Contract by which debtor attempts to waive garnishment exemption void. —

A contract, either specific or general, by which a debtor attempts to waive the debtor’s exemption and to make the debtor’s wages earned as a laborer subject to garnishment is void and not enforceable. Traders Inv. Co. v. Macon Ry. & Light Co., 3 Ga. App. 120 , 3 Ga. App. 125 , 59 S.E. 454 , 1907 Ga. App. LEXIS 574 (1907). See also Green v. Watson, 75 Ga. 471 , 1885 Ga. LEXIS 161 (1885).

Venue cannot be waived in divorce suit. —

In a suit for divorce, jurisdiction of the court cannot be waived so as to permit a suit for divorce to be brought in a county other than that of the residence of the defendant. Watts v. Watts, 130 Ga. 683 , 61 S.E. 593 , 1908 Ga. LEXIS 387 (1908); Odum v. Odum, 132 Ga. 437 , 64 S.E. 470 , 1909 Ga. LEXIS 316 (1909); Haygood v. Haygood, 190 Ga. 445 , 9 S.E.2d 834 , 1940 Ga. LEXIS 511 (1940).

Neither can notice required as condition precedent to recovery of attorney’s fees. —

Where a promissory note contains an obligation to pay attorney’s fees, the statutory notice which the plaintiff is required to give to the defendant as a condition precedent to the defendant’s right to recover these fees cannot be waived in the note, and the attempt to waive it therein is unenforceable and of no effect. Miller v. Roberts, 9 Ga. App. 511 , 71 S.E. 927 , 1911 Ga. App. LEXIS 212 (1911).

One responsible for acts of criminal negligence, or, where gratuitous bailment created, gross negligence. —

One may not be released by agreement or waiver from responsibility for acts of criminal negligence, nor, where the status of the parties creates a bailment as to the injured property, from acts or omissions caused by gross negligence, under the measure of liability controlling a gratuitous bailee. King v. Smith, 47 Ga. App. 360 , 170 S.E. 546 , 1933 Ga. App. LEXIS 407 (1933).

Public officer cannot take less than full statutory salary. —

Since an agreement by a public officer to accept less than the fees or salary allowed the officer by law is contrary to public policy and void, a public officer cannot bind oneself to take less than the statute provides for the officer’s salary, by silently accepting less than the full amount provided by law. MacNeill v. Steele, 186 Ga. 792 , 199 S.E. 99 , 1938 Ga. LEXIS 685 (1938).

Ante litem notice to city. —

The statutory requirements for ante litem notice to the governing authority of the city generally may not be waived by the city or by an individual, even if that individual is the official directly responsible for the injury or for claims adjustment. City of LaGrange v. USAA Ins. Co., 211 Ga. App. 19 , 438 S.E.2d 137 , 1993 Ga. App. LEXIS 1423 (1993).

Section does not authorize murder defendant to demand that case be tried by judge. Palmer v. State, 195 Ga. 661 , 25 S.E.2d 295 , 1943 Ga. LEXIS 546 (1943).

Contempts affecting public policy cannot be extinguished by settlement. —

Where contempts were matters affecting the public interest, being thus quasi-criminal in nature, they could not be extinguished or rendered moot by any settlement between the parties. Alred v. Celanese Corp. of Am., 205 Ga. 371 , 54 S.E.2d 240 , 1949 Ga. LEXIS 397 (1949), cert. denied, 338 U.S. 937, 70 S. Ct. 346 , 94 L. Ed. 578 (1950).

Section inapplicable to attempt to release party from liability for gas safety regulation violations. —

The exception in this section, that “a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest,” has no application where the contract attempts to release a party from liability for acts violating liquefied gas safety regulations. Bishop v. Act-O-Lane Gas Serv. Co., 91 Ga. App. 154 , 85 S.E.2d 169 , 1954 Ga. App. LEXIS 888 (1954).

Exculpation from liability for negligence generally. —

One may exculpate oneself from liability for one’s own simple negligence, but not for gross negligence. Wade v. Watson, 527 F. Supp. 1049, 1981 U.S. Dist. LEXIS 16287 (N.D. Ga. 1981), aff'd, 731 F.2d 890 (11th Cir. 1984).

The general rule in Georgia is that one may by careful language exculpate oneself even from liability for one’s own negligence, but not from one’s own gross negligence or intentional act. Wade v. Watson, 527 F. Supp. 1049, 1981 U.S. Dist. LEXIS 16287 (N.D. Ga. 1981), aff'd, 731 F.2d 890 (11th Cir. 1984).

Informed consent document signed by a decedent before using a fitness facility’s pool was valid and enforceable because: (1) the document was clear and unambiguous; (2) the document was not void as against public policy; and (3) the document contained a covenant not to sue, a disclaimer of liability, and an assumption of risk clause wherein the decedent agreed to hold the facility and its employee harmless from any lawsuits for decedent’s death, accidental or otherwise, that arose from any exercise program, whether formal or self-directed. Flood v. Young Woman's Christian Ass'n of Brunswick, Ga., Inc., 398 F.3d 1261, 2005 U.S. App. LEXIS 1548 (11th Cir. 2005).

Exculpatory clauses are valid and binding, and are not void as against public policy when a business relieves itself from its own negligence. My Fair Lady of Ga., Inc. v. Harris, 185 Ga. App. 459 , 364 S.E.2d 580 , 1987 Ga. App. LEXIS 2530 (1987); Hembree v. Johnson, 224 Ga. App. 680 , 482 S.E.2d 407 , 1997 Ga. App. LEXIS 182 (1997).

Exculpatory provision in contract does not relieve one from liability for willful or wanton conduct. Hawes v. Central of Ga. Ry., 117 Ga. App. 771 , 162 S.E.2d 14 , 1968 Ga. App. LEXIS 1228 (1968).

Witness offered is permitted to testify, unless objection or exception distinctly raises question of competency. Sumter County v. Pritchett, 125 Ga. App. 222 , 186 S.E.2d 798 , 1971 Ga. App. LEXIS 785 (1971).

Defendant’s waiver not permitted to injure insurer’s right to defend action in own name. —

Although a named, served defendant may waive the defendant’s right to defend against an action, the defendant’s waiver and default cannot be permitted to injure the statutory right of the defendant’s insurer to defend the action in its own name, which would be the result if the insurer were held to be bound by the defendant’s admissions. Glover v. Davenport, 133 Ga. App. 146 , 210 S.E.2d 370 , 1974 Ga. App. LEXIS 994 (1974).

Although the named, served uninsured motorist defendant could and did waive the defendant’s right to defend against the action, the defendant’s waiver and default cannot be permitted to injure the statutory right of the defendant’s insurer to defend the action in its own name, which would be the result if the insurer were held to be bound by the defendant’s admissions. Georgia Mut. Ins. Co. v. Willis, 140 Ga. App. 225 , 230 S.E.2d 363 , 1976 Ga. App. LEXIS 1418 (1976).

Parent not authorized to waive child support. —

The right to child support belongs to the child, not the mother, and after the award has become part of the court’s judgment she has no authority to waive it. Johnson v. Johnson, 233 Ga. 664 , 212 S.E.2d 835 , 1975 Ga. LEXIS 1413 (1975).

A mother has no right to barter away child support in return for a relinquishment of visitation privileges. Similarly, a father has no right to make a similar arrangement with a third party. Culpepper v. Brewer, 242 Ga. 210 , 248 S.E.2d 619 , 1978 Ga. LEXIS 1145 (1978).

Plaintiff’s acquiescence in defendant’s summary judgment motion not permitted to prevail over defendant insurer. —

Even though the plaintiff acquiesced in the defendant’s motion for summary judgment, and a person may waive or renounce what the law has established in one’s favor when one does not thereby injure others or affect the public interest, the acquiescence injured the defendant insurer and the plaintiff’s nonfeasance will not be permitted to prevail — just as a defendant’s voluntary default will not be permitted to prejudice the defendant insurer. J.C. Penney Cas. Ins. Co. v. Williams, 149 Ga. App. 258 , 253 S.E.2d 878 , 1979 Ga. App. LEXIS 1810 (1979).

Contract limiting innkeeper’s statutory liability unenforceable. —

A special contract between an innkeeper and a guest purporting to limit the innkeeper’s liability to an amount less than that authorized by former Code 1933, § 52-111 (see now O.C.G.A. § 43-21-12 ) was unenforceable as contrary to public interest and policy. Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 , 1980 Ga. App. LEXIS 3139 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 , 1981 Ga. LEXIS 1006 (1981).

Exculpatory provision nullifying landlord’s warranty concerning latent defects unenforceable. —

A landlord’s implied warranty concerning latent defects existing at the inception of the lease was sufficiently analogous to a contract for maintenance or repair, so that an exculpatory provision purporting to nullify the effect of the implied warranty was void and unenforceable. The landlord’s warranty exists by operation of law in the interest of public safety, and was provided for by former Code 1933, § 61-111 (see now O.C.G.A. § 44-7-13 ). Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 , 1980 Ga. App. LEXIS 3139 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 , 1981 Ga. LEXIS 1006 (1981).

Exculpatory clause signed as condition of receiving dental treatment invalid. —

An exculpatory clause in the consent form signed by a patient as a condition of receiving treatment at a dental school clinic is invalid as contrary to public policy. Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 , 1980 Ga. App. LEXIS 3139 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 , 1981 Ga. LEXIS 1006 (1981).

Simulated aircraft aerial combat. —

Where a parent brought suit to recover the benefits under a policy of life insurance insuring the life of the parent’s adult son, the trial court erred in only partially denying the insurer’s motion for summary judgment by holding that it had waived the statutory requirement prohibiting the issuance of a valid life insurance policy without the written consent of the insured; under circumstances not qualifying for an exception pursuant to O.C.G.A. § 33-24-6(a)(1)-(4), the policy was void ab initio, and unenforceable by the courts; written consent of the insured may not be waived. Time Ins. Co. v. Lamar, 195 Ga. App. 452 , 393 S.E.2d 734 , 1990 Ga. App. LEXIS 561 (1990).

Although exculpatory clauses signed by a pilot and a safety pilot who flew an aircraft company’s plane and engaged in simulated aerial combat were not against public policy under O.C.G.A. § 1-3-7 , the clauses were not enforceable if the company was found to have been grossly negligent or to have engaged in willful misconduct, which was an issue to be resolved by the jury; additionally, a jury issue remained as to whether one of the pilots was an independent contractor for purposes of the company’s liability under O.C.G.A. § 51-2-5(5), and, accordingly, a grant of summary judgment pursuant to O.C.G.A. § 9-11-56 to the company was error. McFann v. Sky Warriors, Inc., 268 Ga. App. 750 , 603 S.E.2d 7 , 2004 Ga. App. LEXIS 857 (2004), cert. denied, No. S04C2066, 2005 Ga. LEXIS 68 (Ga. Jan. 10, 2005), cert. denied, No. S04C2067, 2005 Ga. LEXIS 69 (Ga. Jan. 10, 2005).

Waiver of Benefits

1.In General

“Waiver” defined. —

“Waiver” is a voluntary relinquishment of some known right, benefit or advantage, which, except for the waiver, the party otherwise would have enjoyed. City of Albany v. Mitchell, 81 Ga. App. 408 , 59 S.E.2d 37 , 1950 Ga. App. LEXIS 907 (1950).

Person may waive statutory benefit where others or public policy not involved. —

A person may lawfully waive the benefit of a statutory provision where the rights of third parties are not involved, unless the waiver violates public policy. Southern Ry. v. Turner, 75 Ga. App. 219 , 42 S.E.2d 790 , 1947 Ga. App. LEXIS 518 (1947).

Contracting parties may waive or renounce what the law has established in their favor, provided the waiver or renunciation does not thereby injure others or affect the public interest. Young v. John Deere Plow Co., 102 Ga. App. 132 , 115 S.E.2d 770 , 1960 Ga. App. LEXIS 570 (1960).

A party may waive that which the law provides for one’s benefit unless to permit one to do so would injure others or be contrary to public policy. Pfeffer v. Arrendale, 114 Ga. App. 684 , 152 S.E.2d 651 , 1966 Ga. App. LEXIS 891 (1966).

It is clearly established state law that one may waive a constitutional right. Senters v. Wright & Lopez, Inc., 220 Ga. 611 , 140 S.E.2d 904 , 1965 Ga. LEXIS 572 (1965).

Subrogation may be expressly waived by an insurer pursuant to agreement. —

Homeowners retained the right to sue for damage done to their property, despite payment from their insurer, because language in proof of loss forms granted the insurer subrogation to the homeowners’ rights, title, and interest in the property that was damaged, but not to the claim, and in any event the insurer expressly waived its right to subrogation in the release and settlement agreement executed contemporaneously with the issuance of the settlement payment. Rabun & Assocs. Constr., Inc. v. Berry, 276 Ga. App. 485 , 623 S.E.2d 691 , 2005 Ga. App. LEXIS 1293 (2005).

There is an effective waiver only when it is wholly voluntary and comes from the defendant without any solicitation or coercion whatsoever from either the state or the court. Farmer v. State, 128 Ga. App. 416 , 196 S.E.2d 893 , 1973 Ga. App. LEXIS 1498 (1973).

Necessary elements. —

Waiver need not be supported by consideration, is unilateral in character, must be made with knowledge and intent, and can be established by a certain course of conduct. Aaron Rents, Inc. v. Corr, 133 Ga. App. 296 , 211 S.E.2d 156 , 1974 Ga. App. LEXIS 1047 (1974).

Waiver is a matter of intent. —

The evidence must so clearly indicate an intent to relinquish a known right as to exclude any other reasonable explanation. Allstate Fin. Corp. v. Dundee Mills, Inc., 800 F.2d 1073, 1986 U.S. App. LEXIS 31449 (11th Cir. 1986).

Implied waiver is not more efficacious, nor more highly regarded, than express waiver in writing. Pittman v. Elder, 76 Ga. 371 , 1886 Ga. LEXIS 43 (1886).

Question of whether one has waived right upon which one relies is matter of fact to be determined by a jury or the trier of the facts upon all the evidence. City of Albany v. Mitchell, 81 Ga. App. 408 , 59 S.E.2d 37 , 1950 Ga. App. LEXIS 907 (1950).

Children’s support rights nonwaivable. —

Children, legitimate or illegitimate, are not property, and absent a clear legislative declaration otherwise their support rights may not be bartered away by their parents. Worthington v. Worthington, 250 Ga. 730 , 301 S.E.2d 44 , 1983 Ga. LEXIS 624 (1983).

2.Waivable Rights

Right to have a receipt of an insurance company under seal may be waived. American Life Ins. Co. v. Green, 57 Ga. 469 , 1876 Ga. LEXIS 147 (1876).

Although time is of the essence of the contract, it may be waived. Moody v. Griffin, 60 Ga. 459 , 1878 Ga. LEXIS 505 (1878) see also Moxley v. Kinloch, 80 Ga. 46 , 7 S.E. 123 , 1887 Ga. LEXIS 319 (1887).

Homestead waiver is good in a mortgage by the husband as against the wife. Burns v. State, 61 Ga. 192 , 1878 Ga. LEXIS 68 (1878) see also dissenting opinion Allen v. Frost, 59 Ga. 558 , 1877 Ga. LEXIS 333 (1877); Mathis v. Western Union Tel. Co., 94 Ga. 338 , 21 S.E. 564 , 1894 Ga. LEXIS 79 (1894) (dissenting opinion).

Defendant has right to waive jury trial in misdemeanor case. —

Whatever may be the decisions in other states as to the right to waive trial by jury in cases of misdemeanor, the Georgia Supreme Court does not think there can be any doubt that the defendant had this right under our law. Logan v. State, 86 Ga. 266 , 12 S.E. 406 , 1890 Ga. LEXIS 230 (1890).

Defendant may waive every minor right and privilege. —

As the prisoner may waive even a trial itself, and be capitally punished upon the defendant’s own confession of guilt, the defendant may waive every minor right or privilege. The greater includes the less, or the whole the parts. Logan v. State, 86 Ga. 266 , 12 S.E. 406 , 1890 Ga. LEXIS 230 (1890); Vaughn v. State, 88 Ga. 731 , 16 S.E. 64 , 1892 Ga. LEXIS 92 (1892).

Person instituting action may settle with defendant where fine or penalty goes to person alone. —

The rule seems to be that where the public, or a portion thereof, are interested in a fine or penalty, the person or informer who brings the action cannot settle or compound with the defendant so as to deprive the public of its interest therein. But where the penalty or fine goes alone to the informer or person who institutes the action therefor, one may settle or compound with the defendant, or withdraw one’s suit, or waive one’s right to recover the penalty or fine. Mathis v. Western Union Tel. Co., 94 Ga. 338 , 21 S.E. 564 , 1894 Ga. LEXIS 79 (1894).

Parties to nonstatutory arbitration agreement may waive that arbitrator be sworn. —

The parties to an agreement to submit their differences to nonstatutory arbitration may expressly waive that the arbitrator be sworn, even if, under the terms of the submission, the arbitrator is required to be sworn. Southern Live Stock Ins. Co. v. Benjamin, 113 Ga. 1088 , 39 S.E. 489 , 1901 Ga. LEXIS 500 (1901).

Materialman not required to obtain personal judgment against owner in order to maintain foreclosure proceedings. —

Where materials are sold to an owner either directly or through another as one’s agent, the materialman may, upon proper pleadings and evidence, obtain a personal judgment against the owner for the price or value of the materials, but the materialman is not obliged to seek or obtain such a judgment in order to maintain foreclosure proceedings. Robinson v. Reese, 175 Ga. 574 , 165 S.E. 744 , 1932 Ga. LEXIS 293 (1932).

Nonliability agreement not void, except where statutorily prohibited or public duty owed. —

Except in cases prohibited by statute, or where a public duty is owed, as by a common carrier of goods or passengers, a party may by a valid contract relieve oneself from liability to another party for particular injuries or damages and for ordinary negligence, and such an agreement is not void as against public policy. King v. Smith, 47 Ga. App. 360 , 170 S.E. 546 , 1933 Ga. App. LEXIS 407 (1933).

Except in cases prohibited by statute and cases where a public duty is owed, the general rule is that a party may exempt oneself by contract from liability to the other party for injuries caused by negligence; and the agreement is not void for contravening public policy. Hawes v. Central of Ga. Ry., 117 Ga. App. 771 , 162 S.E.2d 14 , 1968 Ga. App. LEXIS 1228 (1968).

A party may exempt oneself by contract from liability to another party for injuries caused by negligence, and the agreement is not void for contravening public policy. Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 , 1980 Ga. App. LEXIS 3139 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 , 1981 Ga. LEXIS 1006 (1981).

Warranty of suitability in bailment for hire. —

A bailee may renounce the warranty of suitability established in the bailee’s favor by O.C.G.A. § 44-12-63 by use of an exculpatory clause in the contract for bailment for hire. Hall v. Gardens Servs., Inc., 174 Ga. App. 856 , 332 S.E.2d 3 , 1985 Ga. App. LEXIS 1978 (1985).

Where public policy does not absolutely bar or disqualify inadmissible testimony, inadmissibility may be waived. Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116 , 31 S.E.2d 20 , 1944 Ga. LEXIS 365 (1944).

Required written notice to damage recovery for livestock loss or injury waivable. —

A contract requiring notice in writing as a condition precedent to the recovery of damages for loss or injury to a shipment of livestock may be waived by the conduct of the carrier. Southern Ry. v. Turner, 75 Ga. App. 219 , 42 S.E.2d 790 , 1947 Ga. App. LEXIS 518 (1947).

Party can waive hearing. —

Although a party is entitled to an opportunity for a hearing, there is no requirement that there must be a hearing. The party can waive the hearing. Scocca v. Wilt, 243 Ga. 2 , 252 S.E.2d 401 , 1979 Ga. LEXIS 774 (1979).

Consequential damages. —

To the extent that consequential damages are recoverable in breach of contract actions, a clause excluding such damages is valid and binding unless prohibited by statute or public policy. Mark Singleton Buick, Inc. v. Taylor, 194 Ga. App. 630 , 391 S.E.2d 435 , 1990 Ga. App. LEXIS 288 (1990).

Waiver of right to jury trial in probate proceeding. —

Trial court had subject matter jurisdiction to review the probate court’s decision under Ga. Const. 1983, Art. VI, Sec. IV, Para. I and O.C.G.A. § 15-6-8(4)(E) to deny probate of the decedent’s 1988 will and the parties’ waiver of the statutory right to a jury trial did not deprive the trial court of subject matter jurisdiction to deny probate of the will. Mosley v. Lancaster, 296 Ga. 862 , 770 S.E.2d 873 , 2015 Ga. LEXIS 195 (2015).

Jury trial. —

Before a defendant could effectively waive the right to a jury trial and demand a bench trial, the state’s consent had to be obtained, in addition to the trial court’s agreement to conduct a bench trial pursuant to the defendant’s demand. Zigan v. State, 281 Ga. 415 , 638 S.E.2d 322 , 2006 Ga. LEXIS 1032 (2006).

3.Actions Amounting to Waiver

Obtaining Sunday hearing waives legal hearing. —

To insist on a hearing upon Sunday, and to obtain it and then give bail, is to waive a legal hearing. Weldon v. Colquitt, 62 Ga. 449 , 1879 Ga. LEXIS 553 (1879).

Failure to object waives personal jurisdiction. —

Where the justice of a district in which the defendant resided was disqualified, and suit was brought without objection in another district, the presiding justice of which had jurisdiction of the subject matter, the defendant thereby waived objection to the jurisdiction of the defendant’s person. Dozier v. Allen, 65 Ga. 254 , 1880 Ga. LEXIS 155 (1880).

Failure to object to a motion for a new trial amounts to a waiver. Moore v. Rosser, 76 Ga. 329 , 1886 Ga. LEXIS 31 (1886).

Any point of practice which, if sound, would be fatal to a motion for a new trial should be presented to the trial court by a motion to dismiss the application for a new trial, and if not so presented will be considered as having been waived. Walker v. Neil, 117 Ga. 733 , 45 S.E. 387 , 1903 Ga. LEXIS 320 (1903); Hopkins v. Jackson, 147 Ga. 821 , 95 S.E. 675 , 1918 Ga. LEXIS 159 (1918); Town of Fairburn v. Brantley, 161 Ga. 199 , 130 S.E. 67 , 1925 Ga. LEXIS 325 (1925).

Where evidence brief is not filed by day set, subsequent acts of parties may waive. Moxley v. Kinloch, 80 Ga. 46 , 7 S.E. 123 , 1887 Ga. LEXIS 319 (1887) see also Hilt v. Young, 116 Ga. 708 , 43 S.E. 76 , 1902 Ga. LEXIS 228 (1902).

Tax return irregularities are waivable by identifying property on which fieri facias will be levied. National Bank v. Danforth, 80 Ga. 55 , 7 S.E. 546 , 1887 Ga. LEXIS 322 (1887).

Refusal of telegraph company to pay damages on oral demand waives formal demand in writing. Hill v. Western Union Tel. Co., 85 Ga. 425 , 11 S.E. 874 , 1890 Ga. LEXIS 60 (1890).

Agent of the company is a competent party to waive. Hill v. Western Union Tel. Co., 85 Ga. 425 , 11 S.E. 874 , 1890 Ga. LEXIS 60 (1890).

Arraignment and plea rights are waived when defendant goes to trial before jury on merits, and fails, until after the verdict, to bring to the attention of the court that the defendant has not been formally called upon to enter a plea to the indictment. Waller v. State, 2 Ga. App. 636 , 58 S.E. 1106 , 1907 Ga. App. LEXIS 469 (1907); Harris v. State, 11 Ga. App. 137 , 74 S.E. 895 , 1912 Ga. App. LEXIS 291 (1912); Perry v. State, 19 Ga. App. 619 , 91 S.E. 939 , 1917 Ga. App. LEXIS 263 (1917); Brown v. State, 19 Ga. App. 619 , 91 S.E. 939 , 1917 Ga. App. LEXIS 262 (1917); Caswell v. State, 27 Ga. App. 76 , 107 S.E. 560 , 1921 Ga. App. LEXIS 691 (1921).

Omission to take an exception to a ruling amounts to a waiver. Hunt v. Travelers Ins. Co., 136 Ga. 766 , 72 S.E. 32 , 1911 Ga. LEXIS 214 (1911).

Person may waive service of the original suit by appearing and pleading to the merits. Town of Fairburn v. Brantley, 161 Ga. 199 , 130 S.E. 67 , 1925 Ga. LEXIS 325 (1925).

Stipulation in deed securing debt that grantees may sell property upon default waives redemption right. —

A stipulation in a deed to secure debt, that upon a default in the payment of the indebtedness thereby secured the grantees may enter upon the premises and collect the rents and profits thereof, and may sell the property at auction to the highest bidder for cash, first giving four weeks notice of the time, terms, and place of the sale by advertisement, constitutes a waiver by the borrower, the grantor in the deed, of the right of redemption given to mortgagors by former Code 1933, § 67-115 (see now O.C.G.A. § 44-14-42.1 ). Livingston v. Hirsch, 172 Ga. 854 , 159 S.E. 253 , 1931 Ga. LEXIS 222 (1931) (see § 11-9-506 ).

If carrier’s agent acts upon oral notice of damaged shipment, required written notice waived. —

Where a contract of shipment requires the owner or shipper to give notice in writing of any damage to the shipment before it is unloaded, such stipulation may be waived. If the carrier’s agent, without objection to the form of the notice, receives and acts upon an oral notice, a waiver of the requirement as to its being in writing results. Southern Ry. v. Turner, 75 Ga. App. 219 , 42 S.E.2d 790 , 1947 Ga. App. LEXIS 518 (1947).

Party signing contract stipulating seller makes no warranty waives implied warranty. —

Where a contract sued on expressly stipulates that the seller makes no warranty, a party who signs the contract will be deemed to have waived the benefits of the statutory law respecting implied warranties in sales contracts. Seigler v. Barrow, 83 Ga. App. 406 , 63 S.E.2d 708 , 1951 Ga. App. LEXIS 876 (1951).

Debtor under contract may waive defenses to action brought by contract’s assignee. —

A debtor under a conditional sale contract, by expressly agreeing not to set up as a defense to an action on the contract by an assignee thereof any claim the assignee may have had against the assignor, waived the assignee’s right to plead failure of consideration in an action on the contract by the assignee. Jones v. Universal C.I.T. Credit Corp., 88 Ga. App. 24 , 75 S.E.2d 822 , 1953 Ga. App. LEXIS 998 (1953); Young v. John Deere Plow Co., 102 Ga. App. 132 , 115 S.E.2d 770 , 1960 Ga. App. LEXIS 570 (1960).

Demurrer or special pleas not made preliminary to trial deemed waived. —

Under the law of this state, a prisoner, upon being arraigned, may demur to the indictment, plead to the jurisdiction of the court, or file a plea in abatement, or in bar, but if such pleas are not made preliminary to the trial, they are held to be waived in contemplation of law. Jones v. Mills, 216 Ga. 616 , 118 S.E.2d 484 , 1961 Ga. LEXIS 295 (1961).

Rights of accused may be waived voluntarily, or by counsel’s failure to act. —

Generally, all rights can be waived. This may be done by one accused of a criminal offense where this is done voluntarily, knowingly, and intelligently. It may be done by counsel for the accused by counsel’s failure to act timely or by counsel’s not acting at all. Mingo v. State, 133 Ga. App. 385 , 210 S.E.2d 835 , 1974 Ga. App. LEXIS 1871 (1974).

Stipulating waiver of prior jeopardy. —

Although the trial court ruled on the motion to suppress after the jury had been sworn and excused, where the record showed that, in the trial court, the appellee stipulated in writing that a jury had never been placed upon the appellee and, consequently, that he had not been placed in jeopardy, the result of such stipulation is that the motion to suppress had, in effect, been ruled upon prior to the impanelling of the jury, and the case was properly before the appellate court. State v. Chumley, 164 Ga. App. 828 , 299 S.E.2d 564 , 1982 Ga. App. LEXIS 2949 (1982).

Contracting to abide by restrictive covenants. —

Because a landowner was at liberty to waive a constitutional as well as a legal right, the superior court did not abuse its discretion in restraining the landowner’s continuing violation of restrictive covenants by hanging an unapproved non-commercial sign from the landowner’s residence after the landowner had validly contracted to abide by the covenants which were mutually applicable to all lot owners. Bryan v. MBC Partners, L.P., 246 Ga. App. 549 , 541 S.E.2d 124 , 2000 Ga. App. LEXIS 1287 (2000), cert. denied, No. S01C0311, 2001 Ga. LEXIS 243 (Ga. Mar. 2, 2001).

4.Actions Not Amounting to Waiver

Filing of motion for new trial is not waived by consent to continuance of hearing. Hilt v. Young, 116 Ga. 708 , 43 S.E. 76 , 1902 Ga. LEXIS 228 (1902).

The creditor’s release of the principal debtor without the consent of the surety does not discharge the surety if the creditor, in the instrument of release, reserved its rights against the surety. However, the debtor’s waiver of its claims in consideration of that release may not defeat the surety’s right to assert those claims to reduce its liability to the creditor. Hardaway Co. v. Amwest Sur. Ins. Co., 263 Ga. 697 , 263 Ga. 698 , 436 S.E.2d 642 , 1993 Ga. LEXIS 807 (1993).

5.Effect of Waiver

Defendant acknowledging service and waiving filing cannot object that writ not filed. —

A defendant when sued may acknowledge service, and waive copy, process, and filing before the session of the court, and the defendant will not afterwards as against the plaintiff be heard to object that the writ was not filed before the court. Steadman v. Simmons, 39 Ga. 591 , 1869 Ga. LEXIS 249 (1869).

Contract exemption releases landlord from liability for all acts, except those willful and wanton. —

A valid exemption in a lease contract effectively released the landlord from all liability for injury to the tenant’s goods on account of ordinary negligence, including all acts and omissions as charged in the petition, except those which constituted willfulness and wantonness. To make an act willful and wanton, specific facts must be alleged and proven. King v. Smith, 47 Ga. App. 360 , 170 S.E. 546 , 1933 Ga. App. LEXIS 407 (1933).

Acknowledgment that checks in full settlement of salary due estops recovery of deductions made. —

The plaintiff’s written acknowledgment that the plaintiff’s pay checks were in full settlement of the salary due the plaintiff, and that any deductions from the full amount due were made in accordance with the payee’s written request, not having been made under duress, constituted a waiver which did not adversely affect the public interest or violate public policy, and estopped the plaintiff from recovering the deductions so made. Barfield v. City of Atlanta, 53 Ga. App. 861 , 187 S.E. 407 , 1936 Ga. App. LEXIS 413 (1936).

Where accused assents to juror excuse, no error committed, though verdict rendered by 11 jurors. —

Where the evidence in a criminal trial, though partly circumstantial, was sufficient to authorize a finding that at the time one of the original 12 jurors was excused by the court, and in the presence of the court, the accused was consulted by his counsel, and expressly assented, as the accused had the right to do, no error was committed, even though the verdict was rendered by 11 jurors. Coates v. Lawrence, 193 Ga. 379 , 18 S.E.2d 685 , 1942 Ga. LEXIS 403 (1942).

Too late to attack defective indictment in habeas corpus proceedings if defendant pled guilty. —

If the defendant pleads guilty to a defective indictment in which the defendant has incriminated oneself, and the defendant’s spouse has testified, it is too late afterwards, in proceedings instituted to secure the release of the defendant by a writ of habeas corpus, to attack the indictment upon that ground. Bradford v. Mills, 208 Ga. 198 , 66 S.E.2d 58 , 1951 Ga. LEXIS 332 (1951).

One going to trial without objection cannot question the constitutionality of the Act creating court which tried the defendant. Senters v. Wright & Lopez, Inc., 220 Ga. 611 , 140 S.E.2d 904 , 1965 Ga. LEXIS 572 (1965).

By pleading to merits of case defendant waives right to object to jurisdiction of court to render a judgment in personam against the defendant and converts an attachment proceeding into an ordinary common-law action. Parker v. Mercer, 111 Ga. App. 108 , 140 S.E.2d 915 , 1965 Ga. App. LEXIS 892 (1965).

When no objection to evidence when offered, not considered on appeal. —

The failure to object at the time evidence is offered is a waiver of the objection and this ground of the appeal could not be considered. Sumter County v. Pritchett, 125 Ga. App. 222 , 186 S.E.2d 798 , 1971 Ga. App. LEXIS 785 (1971).

Once incidental right or contractual benefit has been waived or relinquished it cannot be reclaimed. Aaron Rents, Inc. v. Corr, 133 Ga. App. 296 , 211 S.E.2d 156 , 1974 Ga. App. LEXIS 1047 (1974).

General Consideration

Laws of other states have no force in Georgia except on principles of comity. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319, 1976 U.S. Dist. LEXIS 14512 (S.D. Ga. 1976).

Nature of comity. —

Comity is reciprocity. It cannot be that the laws of the several states of the union differ so materially in policy or in the nature of their institutions as to require that unquestionable defensive right of every sovereignty, that of protecting its citizens against the operation of the laws or doctrines of another state, incompatible with their safety, or injurious to their interest. Jackson v. Johnson, 34 Ga. 511 , 1866 Ga. LEXIS 135 (1866).

Comity requires that state courts be afforded opportunity to perform duties. —

Although the states are sovereign entities, they are bound along with their officials, including their judges, by the United States Constitution and the federal statutory law. Principles of comity in the United States federal system require that the state courts be afforded the opportunity to perform their duty, which includes responding to attacks on state authority based on the federal law, or, if the litigation is wholly private, construing and applying the applicable federal requirements. Webb v. Webb, 451 U.S. 493, 101 S. Ct. 1889 , 68 L. Ed. 2 d 392, 1981 U.S. LEXIS 97 (1981).

Public policy controlled over contract terms. —

In answering a question certified from a federal appeals court in an action concerning a noncompetition agreement, the Georgia Supreme Court held that, based on O.C.G.A. § 1-3-9 , the law of the jurisdiction chosen by the parties to a contract to govern their contractual rights would not be applied by Georgia courts where application of the chosen law would contravene the policy of, or would be prejudicial to the interests of Georgia, and that covenants against disclosure and competition affected the interests of Georgia, namely the flow of information needed for competition among businesses, and hence their validity would be determined by the public policy of Georgia. Convergys Corp. v. Keener, 276 Ga. 808 , 582 S.E.2d 84 , 2003 Ga. LEXIS 484 (2003).

Workers’ compensation. —

Employer who paid a workers’ compensation claimant workers’ compensation benefits under Texas law was not entitled to a subrogation claim to the proceeds of a tort settlement against the alleged tortfeasors under the full faith and credit and comity provisions of the U.S. Constitution. Tyson Foods, Inc. v. Craig, 266 Ga. App. 443 , 597 S.E.2d 520 , 2004 Ga. App. LEXIS 401 (2004).

When Doctrine of Comity Invoked

1.General Rule

In enforcing comity, Georgia does so where not contrary to state policy. —

In enforcing comity in respect to the laws of sister states, Georgia does so only so long as its enforcement is not contrary to the policy of this state. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319, 1976 U.S. Dist. LEXIS 14512 (S.D. Ga. 1976).

2.Right to Sue

State courts will not exclude Alabama suitors where Alabama courts do not exclude Georgia suitors. —

Only in this sense is the expression “reciprocity is comity” applicable to causes of action springing from wrongful deaths occurring in Alabama. Southern Ry. v. Decker, 5 Ga. App. 21 , 62 S.E. 678 , 1908 Ga. App. LEXIS 6 (1908).

If foreign appointed administrator becomes state resident, liable to be sued here. —

If an administrator appointed in Alabama, together with the securities on the administrator’s bond, become residents of this state, they are liable to be sued here on a decree rendered in this state on a bill filed by the distributees for an account and settlement. Johnson v. Jackson, 56 Ga. 326 , 1876 Ga. LEXIS 283 (1876).

When receiver may sue in foreign jurisdiction. —

While a chancery or statutory receiver cannot sue in the courts of a foreign jurisdiction by virtue of the receiver appointment alone, the receiver can do so when the receiver is expressly authorized by statute to sue, or when the receiver is expressly or by necessary implication vested with title, or when the receiver is made a quasi-assignee or representative of creditors. Bullock v. Oliver, 155 Ga. 151 , 116 S.E. 293 , 1923 Ga. LEXIS 29 (1923).

3.Statutes, Laws, and Judgments

Foreign citizen cannot claim local garnishment exemption when property seized here. —

Under the comity of states, a citizen and resident of Alabama cannot claim the benefit of our exemption laws as against a garnishment when one’s property happens to be seized on process here. In this respect “reciprocity is comity” according to this section. Kyle & Co. v. Montgomery, 73 Ga. 337 , 1884 Ga. LEXIS 125 (1884).

Courts of Georgia will not be bound by interpretations of foreign state upon common law. Krogg v. Atlanta & W. Point R.R., 77 Ga. 202 , 1886 Ga. LEXIS 323 (1886).

Georgia must give full faith and credit to sister state’s judgment. —

Even if the statutory law of this state is different from that of a sister state, and even if this would prevent recovery, the forum state (Georgia) must give full faith and credit to a judgment rendered by the sister state. Colodny v. Krause, 136 Ga. App. 379 , 221 S.E.2d 239 , 1975 Ga. App. LEXIS 1358 (1975).

Judgment of foreign state construing corporate charter followed by state courts. —

A judgment rendered by the courts of a state in which a corporation is chartered, construing the charter with respect to the powers conferred therein, will be followed by the courts of this state. Clark v. Turner, 73 Ga. 1 , 1884 Ga. LEXIS 1 (1884).

Georgia courts recognize and prospectively enforce foreign alimony or child support decree. —

Although a foreign decree may be nonfinal because it can be prospectively modified, for reasons of comity Georgia courts will recognize and give prospective enforcement to a foreign alimony or child support decree by establishing it as the decree of a Georgia court through domestication and treating it as though it were a local decree. Williamson v. Williamson, 247 Ga. 260 , 275 S.E.2d 42 , 1981 Ga. LEXIS 665, cert. denied, 454 U.S. 1097, 102 S. Ct. 669 , 70 L. Ed. 2 d 638, 1981 U.S. LEXIS 2842 (1981).

Comity is not applied where foreign divorce is obtained under circumstances offending state’s public policy as found in its Constitution and statutes and the decisions of its courts. Christopher v. Christopher, 198 Ga. 361 , 31 S.E.2d 818 , 1944 Ga. LEXIS 425 (1944).

4.Contracts

Law applicable in governing contracts. —

Contracts are to be governed as to their nature, validity, and interpretation by the law of the place where they were made, except where it appears from the contract that it is to be performed in a state other than that in which it was made, in which case the laws of that sister state will be applied in the enforcement of any contract to be there performed, so long as such laws do not conflict with the statute, powers, or rights of the state wherein it was executed and sought to be enforced. Tillman v. Gibson, 44 Ga. App. 440 , 161 S.E. 630 , 1931 Ga. App. LEXIS 757 (1931).

The conflicts rule in this state is that where a contract is made and is to be performed in another state, the laws of the latter state will govern as to the validity, nature, obligation, and construction of the contract, where they are duly pleaded and proved, and such laws will be enforced by comity in this state unless they are contrary to public policy or prejudicial to the interests of this state. Rohner, Gehrig & Co. v. Capital City Bank, 655 F.2d 571, 1981 U.S. App. LEXIS 17931 (5th Cir. 1981).

Contracts made and performed in another state will be enforced unless such state’s laws are contrary to Georgia public policy. Nationwide Gen. Ins. Co. v. Parnham, 182 Ga. App. 823 , 357 S.E.2d 139 , 1987 Ga. App. LEXIS 1823 (1987).

Law applicable to contracts affecting property. —

As to contracts affecting realty, the law of the state where the land lies will be applied, and to all kinds of personal property, it is governed by the lex domicili of the owner. Clark v. Baker, 186 Ga. 65 , 196 S.E. 750 , 1938 Ga. LEXIS 537 (1938).

Foreign contract and laws enforced in this state. —

Whenever a contract made in a place outside of the territorial jurisdiction of this state is sought to be enforced in this state, courts here will enforce the contract and give effect to the laws of the place in which it was executed, so far as that can be done without violating the law of this state or its established policy. Massachusetts Benefit Life Ass'n v. Robinson, 104 Ga. 256 , 30 S.E. 918 , 1898 Ga. LEXIS 319 (1898).

Contracts made and performed in another state will be enforced unless such state’s laws are contrary to the public policy of the enforcing state. Terry v. Mays, 161 Ga. App. 328 , 291 S.E.2d 44 , 1982 Ga. App. LEXIS 3032 (1982).

Contract executed in foreign state, not intended as Georgia contract, treated as foreign contract. —

Where a contract not only is executed in a foreign state, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign state and governed by its laws. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807 , 7 S.E.2d 737 , 1940 Ga. LEXIS 386 (1940); Terry v. Mays, 161 Ga. App. 328 , 291 S.E.2d 44 , 1982 Ga. App. LEXIS 3032 (1982).

Foreign marriage settlement applicable to Georgia lands. —

A marriage settlement executed between persons who were then and continued to be citizens of South Carolina applied to lands situated in Georgia according to South Carolina inheritance laws. Brown v. Ransey, 74 Ga. 210 , 1885 Ga. LEXIS 301 (1885).

State’s public policy is generally limited to enforcement of money contracts performed in this state, and public policy does not extend to the enforcement of valid contracts made in other states, for which the rules of comity will be observed. Commercial Credit Plan, Inc. v. Parker, 152 Ga. App. 409 , 263 S.E.2d 220 , 1979 Ga. App. LEXIS 2945 (1979).

Effect of statutory prohibition in enforcing state. —

A contract is not necessarily contrary to the public policy of the enforcing state merely because it could not validly have been made there, notwithstanding the making of such contracts in the place of the forum is expressly prohibited by statute. Terry v. Mays, 161 Ga. App. 328 , 291 S.E.2d 44 , 1982 Ga. App. LEXIS 3032 (1982).

Contract provision regarding support following artificial insemination. —

A Florida contract under which a mother relinquished her right to hold a sperm donor responsible for any resulting child was not unenforceable under O.C.G.A. § 1-3-9 as contrary to public policy. The contract was authorized by Florida law, and Georgia had held that paternity through artificial insemination did not confer responsibility for support. Brown v. Gadson, 288 Ga. App. 323 , 654 S.E.2d 179 , 2007 Ga. App. LEXIS 1197 (2007), cert. denied, No. S08C0456, 2008 Ga. LEXIS 236 (Ga. Feb. 25, 2008).

5.Property

Assets of deceased distributed according to law of state where representatives appointed. —

The assets of the deceased should be applied to the payment of debts, or be distributed amongst the next of kin, by the courts of this state according to the law of the state where the representatives were appointed. This is the comity of states as recognized by this section. Johnson v. Jackson, 56 Ga. 326 , 1876 Ga. LEXIS 283 (1876).

Right and disposition of personalty is to be governed by the law of the domicile of the owner, and not the law of the location of the property. Grote v. Pace, 71 Ga. 231 , 1883 Ga. LEXIS 167 (1883).

When Doctrine of Comity Not Invoked

1.General Rule

Our courts are not required by comity to enforce what is not law in other state. Tennessee v. Virgin, 36 Ga. 388 , 1867 Ga. LEXIS 51 (1867).

Foreign law not enforced if penal only, or if contravenes established public policy. —

A foreign law will not be enforced if it is penal only and relates to the punishing of public wrongs as contradistinguished from the redressing of private injuries, or if it contravenes our established public policy, or the recognized standards of civilization and good morals. Eubanks v. Banks, 34 Ga. 407 , 1866 Ga. LEXIS 114 (1866); Reeves v. Southern Ry., 121 Ga. 561 , 49 S.E. 674 , 1905 Ga. LEXIS 1 (1905); Southern Ry. v. Decker, 5 Ga. App. 21 , 62 S.E. 678 , 1908 Ga. App. LEXIS 6 (1908).

Foreign law will not be enforced if it is penal only and relates to the punishing of public wrongs as contradistinguished from the redressing of private injuries. Laminoirs-Trefileries-Cableries de Lens, S.A. v. Southwire Co., 484 F. Supp. 1063, 1980 U.S. Dist. LEXIS 10097 (N.D. Ga. 1980).

Foreign laws not enforced if immoral or violative of conscience. —

Where the law of a sister state contravenes the public policy of Georgia or is immoral or violative of conscience, it will not be enforced in this state. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319, 1976 U.S. Dist. LEXIS 14512 (S.D. Ga. 1976).

In diversity cases, governing law that of state in which federal court sits. —

There has been no repeal or modification of the principle that enforcement of the laws of another state is not required where they run counter to the public policy of Georgia. In diversity cases involving that issue, the governing law is that of the state in which the federal court is sitting. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319, 1976 U.S. Dist. LEXIS 14512 (S.D. Ga. 1976).

2.Statutes and Judgments

Foreign legislature cannot prescribe laws to be recognized and enforced in courts of this state, even though the law as to which cognizance is sought to be excluded is a statute of the state whose legislature seeks to create the exclusion. Southern Ry. v. Decker, 5 Ga. App. 21 , 62 S.E. 678 , 1908 Ga. App. LEXIS 6 (1908).

Comity cannot be invoked to give extraterritorial effect to a judgment procured by fraudulent representations in order to obtain jurisdiction of the court. Christopher v. Christopher, 198 Ga. 361 , 31 S.E.2d 818 , 1944 Ga. LEXIS 425 (1944).

Indiana products liability law contravened Georgia public policy. —

Public policy exception to lex loci delicti applied and Georgia law should have been applied in a design defect products liability case because Georgia recognized strict liability in such cases, pursuant to O.C.G.A. § 51-1-11, whereas Indiana law required a showing that the manufacturer failed to exercise reasonable care under the circumstances. Bailey v. Cottrell, Inc., 313 Ga. App. 371 , 721 S.E.2d 571 , 2011 Ga. App. LEXIS 1064 (2011).

3.Contracts

Law chosen by parties not applied where contravenes state interests. —

The law of the jurisdiction chosen by the parties to a contract to govern their contractual rights will not be applied by the Georgia courts where the application of the chosen law would contravene the policy of, or would be prejudicial to, the interests of this state. Dothan Aviation Corp. v. Miller, 620 F.2d 504, 1980 U.S. App. LEXIS 16024 (5th Cir. 1980).

Comity cannot be invoked in aid of award, where illegal transaction was submitted to arbitrators. Benton & Brother v. Singleton, 114 Ga. 548 , 40 S.E. 811 , 1902 Ga. LEXIS 721 (1902).

Stipulations in foreign contract arbitrarily limiting negligence liability of common carrier not enforced. —

So far as stipulations of a contract limit the common-law liability of the carrier as an insurer, or for losses occurring by unavoidable accident, they will be enforced by the courts of this state; but in such a case, it being contrary to the public policy of this state to allow a common carrier, even by express contract, to make an arbitrary limitation upon its liability for negligence of its agents or servants, stipulations to that effect will not be enforced. Southern Express Co. v. Hanaw, 134 Ga. 445 , 67 S.E. 944 , 1910 Ga. LEXIS 226 (1910).

Neither is foreign law providing married woman liable upon suretyship contract. —

The law of a foreign state providing that a married woman is liable upon her contract of suretyship will not be enforced in this state under this section. Sally v. Bank of Union, 25 Ga. App. 509 , 103 S.E. 798 , 1920 Ga. App. LEXIS 43 (1920); Ulman, Magill & Jordan Woolen Co. v. Magill, 155 Ga. 555 , 117 S.E. 657 , 1923 Ga. LEXIS 122 (1923).

Foreign carriage contract not necessarily governed by foreign laws where partly performed in state. —

Though a contract of carriage is made in a foreign state, it is not necessarily governed in matters of construction and effect by the laws of that state, where the contract is to be partly performed in this state. Myers v. Atlantic Greyhound Lines, 52 Ga. App. 698 , 184 S.E. 414 , 1936 Ga. App. LEXIS 228 (1936).

Foreign provision providing that surety or obligor not released along with cosurety or coobligor unenforceable. —

A Tennessee statute providing that the release of a cosurety or coobligor does not release the other surety or obligor when the parties, other than those not released, stipulate that the other surety or obligor is not released is contrary to the public policy of this state and will not be enforced. Kent v. Hair, 60 Ga. App. 652 , 4 S.E.2d 703 , 1939 Ga. App. LEXIS 130 (1939).

Gambling transactions contravene the public policy of Georgia and constitute obligations unenforceable in its courts. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319, 1976 U.S. Dist. LEXIS 14512 (S.D. Ga. 1976).

Validity of covenants against disclosure determined by state’s public policy. —

Covenants against disclosure, like covenants against competition, affect the interests of this state, namely the flow of information needed for competition among businesses, and hence their validity is determined by the public policy of this state. Nasco, Inc. v. Gimbert, 239 Ga. 675 , 238 S.E.2d 368 , 1977 Ga. LEXIS 1293 (1977).

Validity of covenants against competition determined by state’s public policy. —

Covenants against competition affect the interests of this state, hence their validity is determined by the public policy of this state. Dothan Aviation Corp. v. Miller, 620 F.2d 504, 1980 U.S. App. LEXIS 16024 (5th Cir. 1980).

4.Property

Comity not applicable to suit by receiver unless appointment provision vests property title in receiver. —

The principles of comity do not apply to a suit by a chancery receiver in a foreign jurisdiction, nor to a suit by a statutory receiver, unless the statute under which the receiver is appointed vests title in the receiver to the property the receiver represents. Oliver v. Bullock, 28 Ga. App. 446 , 111 S.E. 680 , 1922 Ga. App. LEXIS 589 (1922), rev'd, 155 Ga. 151 , 116 S.E. 293 , 1923 Ga. LEXIS 29 (1923).

State has no jurisdiction to bring foreign administrator to account where the administrator is visiting here on business. Jackson v. Johnson, 34 Ga. 511 , 1866 Ga. LEXIS 135 (1866).

Provisions of foreign will contrary to state policy not enforced. —

Our laws will not enforce the provisions of a will made in another state which are directly contrary to the declared policy of this state, but the judgment of a competent tribunal as to the will, where the will was executed, will be respected by the courts of this state. Caruthers v. Corbin, 38 Ga. 75 , 1868 Ga. LEXIS 48 (1868).

Pleading and Proving Foreign Law

Foreign law must be pled and proved. —

Where a party seeks to rely on the law of another state as furnishing the basis for a right of recovery or defense different from what it would be under the laws of this state, or the common law, the law of the foreign state should be pled and proved. Southern Express Co. v. Hanaw, 134 Ga. 445 , 67 S.E. 944 , 1910 Ga. LEXIS 226 (1910).

Where pled, decisions of foreign courts of last resort adopted in construing statute. —

Where a statute of a foreign state is pled as being the basis of a cause of action arising in that state, in a suit instituted in this state, and a construction of the statute becomes necessary, the decisions of the courts of last resort of the foreign state in construing the statute will be adopted; and where it appears that there are no decisions of the courts in that state construing the statute, but that the statute was verbally adopted from the statute of another state, the decisions of the state from which it was adopted will be considered in construing the statute, especially those decisions construing it which had been made prior to the adoption of the statute in the latter state. Lee v. Lott, 50 Ga. App. 39 , 177 S.E. 92 , 1934 Ga. App. LEXIS 613 (1934).

Foreign judgment, if proved, may have effect of former local adjudication. —

Under the full faith and credit clause of the Constitution, a judgment of a court of competent jurisdiction in Tennessee, if properly proved, may have the effect of a former adjudication in matters pending in the courts of this state. Roadway Express, Inc. v. McBroom, 61 Ga. App. 223 , 6 S.E.2d 460 , 1939 Ga. App. LEXIS 262 (1939).

Laws of state of contract’s performance, where proved, govern validity, nature, obligation, and construction. —

Where a contract is made in one state to be performed in another, the laws of the latter state will govern as to the validity, nature, obligation, and construction of the contract, where they are duly pleaded and proved, and such laws will be enforced by comity in this state unless they are contrary to public policy or prejudicial to the interests of this state. Pratt v. Sloan, 41 Ga. App. 150 , 152 S.E. 275 , 1930 Ga. App. LEXIS 483 (1930).

Where a contract is made in one state to be performed in another, the laws of the latter state will govern as to the validity, nature, obligation, and construction of the contract, when they are pleaded and proved, and this general rule is particularly applicable to liability for a passenger’s baggage. Myers v. Atlantic Greyhound Lines, 52 Ga. App. 698 , 184 S.E. 414 , 1936 Ga. App. LEXIS 228 (1936).

Contract of foreign state originally part of colonies governed by common law, absent contrary pleading. —

A contract of a foreign state which constituted one of the original 13 colonies, or which was derived from territory included in one of the colonies, will be construed and governed by the common law, in the absence of any pleading to the contrary, and in such a case, the construction of the common law given by the courts of this state will control, in preference to the construction given by the courts of the state of the contract. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807 , 7 S.E.2d 737 , 1940 Ga. LEXIS 386 (1940).

Foreign law must be pleaded where state never part of English territory. —

In an action on a contract of a state that was never a part of English territory, embraced in one of the original 13 colonies or belonging thereto, the law of the foreign state must be pleaded, in the absence of which it will be presumed that the law of this state obtains therein. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807 , 7 S.E.2d 737 , 1940 Ga. LEXIS 386 (1940).

General Consideration

Editor’s notes.

In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 102-108, prior to amendment by Ga. L. 1962, p. 156, § 1, effective January 1, 1964, which read, in part, “The validity, form, and effect of writings or contracts are determined by the law of the place where executed.” are included in the annotations for this Code section.

Laws of other states have no force in Georgia except on the principles of comity. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319, 1976 U.S. Dist. LEXIS 14512 (S.D. Ga. 1976).

Foreign laws not enforced if contravenes public policy or conscience, or immoral. —

Where the law of a sister state contravenes the public policy of Georgia or is immoral or violative of conscience, it will not be enforced in this state. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319, 1976 U.S. Dist. LEXIS 14512 (S.D. Ga. 1976).

Cited in Reliance Realty Co. v. Mitchell, 41 Ga. App. 124 , 152 S.E. 295 , 1930 Ga. App. LEXIS 478 (1930); Franklin Fire Ins. Co. v. Shahan, 46 Ga. App. 181 , 167 S.E. 194 , 1932 Ga. App. LEXIS 101 (1932); Fidelity & Deposit Co. v. Howard, 67 F.2d 961, 1933 U.S. App. LEXIS 4697 (5th Cir. 1933), aff'd, 292 U.S. 559, 54 S. Ct. 848 , 78 L. Ed. 1425 , 1934 U.S. LEXIS 964 (1934); Lefkoff v. Sicro, 189 Ga. 554 , 6 S.E.2d 687 , 1939 Ga. LEXIS 736 (1939), overruled in part as stated in Russell v. Sparmer, 339 Ga. App. 207 , 793 S.E.2d 501 , 2016 Ga. App. LEXIS 597 (2016); Fenn v. Castelanna, 196 Ga. 22 , 25 S.E.2d 796 , 1943 Ga. LEXIS 306 (1943); Mutual Benefit Health & Accident Ass'n v. Brunke, 276 F.2d 53, 1960 U.S. App. LEXIS 5128 (5th Cir. 1960); Union Camp Corp. v. Dyal, 460 F.2d 678, 1972 U.S. App. LEXIS 10518 (5th Cir.), cert. denied, 409 U.S. 849, 93 S. Ct. 56 , 34 L. Ed. 2 d 90, 1972 U.S. LEXIS 1323 (1972); Putnam v. Williams, 652 F.2d 497, 1981 U.S. App. LEXIS 10809 (5th Cir. 1981).

Choice of Law

Application in tort cases of lex loci delicto commissi. —

A state court ought to apply the substantive law of the state or county in which the tort occurred under the lex loci delicto commissi doctrine. However, if the application of foreign law would prove insurmountably difficult, state substantive law may govern given both parties’ concurrence. Lavine v. General Mills, Inc., 519 F. Supp. 332, 1981 U.S. Dist. LEXIS 9739 (N.D. Ga. 1981).

Lex loci governs as to the nature, construction and obligation of contracts. Missouri State Life Ins. Co. v. Lovelace, 1 Ga. App. 446 , 58 S.E. 93 , 1907 Ga. App. LEXIS 260 (1907).

The conflicts rule in this state is that where a contract is made and is to be performed in another state, the laws of the latter state will govern as to the validity, nature, obligation, and construction of the contract, where they are duly pleaded and proved, and such laws will be enforced by comity in this state unless they are contrary to public policy or prejudicial to the interests of this state. Rohner, Gehrig & Co. v. Capital City Bank, 655 F.2d 571, 1981 U.S. App. LEXIS 17931 (5th Cir. 1981).

Law of the place where contract is made is prima facie that which parties intended and that such law ought, therefore, to prevail. King v. King, 218 Ga. 534 , 129 S.E.2d 147 , 1962 Ga. LEXIS 555 (1962).

Rule of the lex loci will be applied in the federal courts sitting in Georgia and acting upon an instrument made and to be performed in this state. Martin v. Bartow Iron Works, 35 Ga. 320 , 16 F. Cas. 888, 1867 U.S. Dist. LEXIS 149 (N.D. 1867).

Lex loci not enforced where contrary to morals, general policy, or conscience. —

While the lex loci, as a general rule, governs the construction of contracts, it is subject, in practice, to the great controlling idea that they will not be enforced, by comity, if they involve anything immoral, contrary to general policy, or violative of the conscience of the state called on to give them effect. Eubanks v. Banks, 34 Ga. 407 , 1866 Ga. LEXIS 114 (1866).

Where enforcement of a contract in Georgia draws public policy considerations into question, those public policy considerations will be determined according to laws of Georgia. Scherer v. Scherer, 249 Ga. 635 , 292 S.E.2d 662 , 1982 Ga. LEXIS 870 (1982).

In choice of law, Georgia follows the “grouping of contacts” or “center of gravity” theory on which law should govern contracts. A-T-O, Inc. v. Stratton & Co., 486 F. Supp. 1323, 1980 U.S. Dist. LEXIS 9054 (N.D. Ga. 1980).

Local law, not lex loci, applicable to remedy on contracts. —

As a general principle, the lex loci applies only to the interpretation of contracts, and the remedy on them must be prosecuted according to the laws of the country in which the action is brought. Davis v. DeVaughn, 7 Ga. App. 324 , 66 S.E. 956 , 1910 Ga. App. LEXIS 268 (1910); Chamblee v. Colt Co., 31 Ga. App. 34 , 119 S.E. 438 , 1923 Ga. App. LEXIS 712 (1923).

This rule applies only to the interpretation of the contract touching its validity, and does not apply to the question of the remedy thereon. Gaffe v. Williams, 194 Ga. 673 , 22 S.E.2d 512 , 1942 Ga. LEXIS 659 (1942).

Local limitation laws applicable. —

Where a suit upon a written contract executed and to be performed in another state is brought in a court of this state, the question whether or not the plaintiff’s right of action is barred, being one relating exclusively to the remedy, must be determined with reference to the limitation laws of Georgia. Obear v. First Nat'l Bank, 97 Ga. 587 , 25 S.E. 335 , 1895 Ga. LEXIS 533 (1895).

While the validity and form of a contract executed and to be performed in another state must be determined by the laws of that state, yet when suit is brought thereon in a Georgia court, the limitation statutes of Georgia must be applied. Gaffe v. Williams, 194 Ga. 673 , 22 S.E.2d 512 , 1942 Ga. LEXIS 659 (1942).

Where parties contemplate another place of performance, latter laws preferred. —

The place where the contract is entered into is not to be exclusively considered, if the parties had in contemplation another place at the time of the contract, the laws of the latter will be preferred in the construction of the contract. Dunn v. Welsh, 62 Ga. 241 , 1879 Ga. LEXIS 489 (1879).

Contracts are to be governed as to their nature, validity, and interpretation by the law of the place where they were made, except where it appears from the contract that it is to be performed in a state other than that in which it was made, in which case the laws of that sister state will be applied in the enforcement of any contract to be there performed, so long as such laws do not conflict with the statute, powers, or rights of the state wherein it was executed and sought to be enforced. Tillman v. Gibson, 44 Ga. App. 440 , 161 S.E. 630 , 1931 Ga. App. LEXIS 757 (1931).

Contract’s construction governed by lex loci, unless intended to have effect within Georgia. —

The construction of a contract is to be governed by the law of the place of its making, unless it shall appear that the writing or contract is intended to have effect principally within the State of Georgia. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913, 1973 U.S. Dist. LEXIS 10956 (N.D. Ga. 1973).

Existing laws part of contract. —

The laws which exist at the time and place of the making of a contract enter into and form a part of it. West End & A. St. R.R. v. Atlanta St. R.R., 49 Ga. 151 , 1873 Ga. LEXIS 323 (1873).

Courts presume common law in force in foreign state. —

In the absence of allegations as to what the law of a foreign state is, our courts will presume that the common law is of force in that state. Selma, R. & D.R.R. v. Lacy, 43 Ga. 461 , 1871 Ga. LEXIS 278 (1871).

Common law determined by looking at Georgia case law. —

Georgia courts then go through a two-step process: (1) in the absence of pleading and proof of foreign law, the courts presume that the common law is in effect in the foreign state; and (2) in determining what this “presumed” common law is, the Georgia courts, rather than looking to the foreign case law, look to Georgia case law. Budget Rent-A-Car Corp. v. Fein, 342 F.2d 509, 1965 U.S. App. LEXIS 6322 (5th Cir. 1965).

Local case law consulted to interpret foreign statute where no applicable statute. —

The case law of the locus will be consulted only when it is interpretive of a foreign statute and where there is no applicable foreign statute. Budget Rent-A-Car Corp. v. Fein, 342 F.2d 509, 1965 U.S. App. LEXIS 6322 (5th Cir. 1965).

Foreign contract occupies foreign legal status, but foreign law must be put in evidence. —

A contract made and to be performed in another state will be enforced by the courts of this state according to the legal status it would occupy in that state. But the law of that state must be put in evidence before it can be applied in this state. Champion v. Wilson & Co., 64 Ga. 184 , 1879 Ga. LEXIS 30 (1879).

Specific Illustrations

When note is made in another state, payable there, it is governed by foreign law. Goodrich v. Williams, 50 Ga. 425 , 1873 Ga. LEXIS 282 (1873).

Note signed in one state and accepted in other made in other. —

Where a note is signed in one state, but is not completed until accepted in another state, it is made in that other state. Peretzman v. Borochoff, 58 Ga. App. 838 , 200 S.E. 331 , 1938 Ga. App. LEXIS 149 (1938).

Note made upon Sunday not enforced. —

As the laws of this state formerly forbid any transaction of any business, trade, or calling on Sunday, a note made upon that day, in pursuance of trade or business, will not be enforced by the courts of this state under the laws of this state, as such a contract is void. Hill v. Wilker, 41 Ga. 449 , 1871 Ga. LEXIS 124 (1871).

Foreign judgment on foreign note conclusive. —

Where a judgment was obtained in a foreign state on a note signed in that state, the judgment is conclusive in a subsequent suit commenced in Georgia by attachment, as to the indebtedness of the defendants. Hope v. First Nat'l Bank, 142 Ga. 310 , 82 S.E. 929 , 1914 Ga. LEXIS 694 (1914).

Foreign arbitration agreement’s validity and construction depends on foreign law. —

An agreement for arbitration being made in another state, its validity and construction in the courts of Georgia depend on the laws of that state. Green v. East Tenn. & Ga. R.R., 37 Ga. 456 , 1867 Ga. LEXIS 182 (1867).

Shipping contract’s validity, form, and effect determined by state where made and performed. —

If goods are shipped in one state on a through contract, to be transported by a common carrier and delivered in another (omitting any question of public policy), the general rule is, in the absence of anything to show a contrary intent, the validity, form, and effect of the contract will be determined by the laws of the state where the contract was made and partly to be performed. Southern Express Co. v. Hanaw, 134 Ga. 445 , 67 S.E. 944 , 1910 Ga. LEXIS 226 (1910).

Validity and effect of foreign, oral child custody contract determined by foreign law. —

Where the defendants in a habeas corpus proceeding relied on an oral contract as and for their right to have and retain custody and care of a child, which contract was made with the plaintiffs while all of them resided in another state, the validity and effect of the contract must be determined by the laws of that state, especially since the parties did not contemplate performance of the contract elsewhere. Rodale v. Grimes, 211 Ga. 50 , 84 S.E.2d 68 (1954).

Foreign assignments of local assets contravening state law or policy not regarded. —

The courts of Georgia will not regard an assignment made in another state which, as to assets here, contravenes the law or declared public policy of this state. S. Stricker & Co. v. Tinkham, 35 Ga. 176 , 1866 Ga. LEXIS 188 (1866); Miller v. Kernaghan, 56 Ga. 155 , 1876 Ga. LEXIS 227 (1876); Birdseye v. Underhill, 82 Ga. 142 , 7 S.E. 863 , 1888 Ga. LEXIS 375 (1888).

Georgia courts refuse to recognize or enforce any gambling or wagering contract. —

Georgia courts regard statutes declaring gambling contracts and transactions illegal or void as embodying a distinctive public policy which requires the courts of this state to refuse to recognize or enforce any contract or transaction in violation of their terms, even though such contract or transaction may have had its situs outside the Georgia forum, by the laws of which situs it is valid, and therefore does not come within the direct operation of the Georgia statutes. The practical result of this view is that a gambling or wagering contract, in order to be upheld or enforced, must be valid both by its proper law — that is, by the law of its situs — and by the law of Georgia. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319, 1976 U.S. Dist. LEXIS 14512 (S.D. Ga. 1976).

Lex fori governs remedy in suit to enforce surety’s contract. —

The lex fori, and not the lex loci, governs as to the remedy in the courts of this state in a suit to enforce the performance of a contract made in another state against a surety thereon. Toomer v. Dickerson, 37 Ga. 428 , 1867 Ga. LEXIS 181 (1867).

Manner of determining materiality of representations in insurance contract controlled by lex fori. —

The materiality of representations made by the insured in the insured’s application, under the laws of Georgia, is a question for the jury to decide. The manner in which this question shall be determined, being a matter affecting the remedy only, and not the validity, form, or effect of the contract, is to be controlled by the lex fori, and not by the lex loci contractus. Massachusetts Benefit Life Ass'n v. Robinson, 104 Ga. 256 , 30 S.E. 918 , 1898 Ga. LEXIS 319 (1898).

Alabama statute of limitations is not applied in Georgia to a note made in Alabama. Thomas v. Clarkson, 125 Ga. 72 , 54 S.E. 77 , 1906 Ga. LEXIS 48 (1906).

Law of state where contract performed governs interest rate. —

On contracts made in one state, to be performed in another, if they bear interest, the law of the state where they are to be performed governs the rate of interest to be paid. Thomas v. Clarkson, 125 Ga. 72 , 54 S.E. 77 , 1906 Ga. LEXIS 48 (1906).

If no foreign usury law, common law, as construed in this state, governs. —

Where a promissory note is both executed and to be performed in another state, in an attack by the maker upon the note for usury brought in this state, where the laws of the foreign state regulating interest charges and usury do not appear, the common law will be presumed to be there in force, and the right to collect interest in such a suit, unless contrary to the public policy or specific statutes of this state, will be governed by the common law as it has been construed and applied in this state. Folsom v. Continental Adjustment Corp., 48 Ga. App. 435 , 172 S.E. 833 , 1934 Ga. App. LEXIS 96 (1934).

Contract between foreign manufacturer and Georgia dealer is Georgia contract. —

A contract between a foreign manufacturer and a Georgia dealer, whereby the former was to ship goods to the dealer, was a Georgia, and not a foreign contract, and it must be executed in accordance with the laws of Georgia to be valid there against the trustee of the dealer for bankruptcy. In re Bondurant Hdwe. Co., 231 F. 247, 1916 U.S. Dist. LEXIS 1724 (D. Ga. 1916).

Whether sale within Georgia securities provisions’ meaning occurred in Georgia is decided on basic principles. Allen v. Smith & Medford, Inc., 129 Ga. App. 538 , 199 S.E.2d 876 , 1973 Ga. App. LEXIS 1044, 1973 Ga. App. LEXIS 1686, 1973 Ga. App. LEXIS 1695 (1973).

Situs of a debt follows the creditor, and where the debtor and creditor reside in different states, the law of the domicile of the creditor prevails. Birdseye v. Underhill, 82 Ga. 142 , 7 S.E. 863 , 1888 Ga. LEXIS 375 (1888).

Character of foreign instrument conveying property in this state determined by local law. —

Where an instrument is executed and payable in a foreign state by parties all residing in that state, purporting to convey certain standing timber in this state to one of the parties to the contract, the law of the place where the property is situated (the lex loci rei sitae) controls, in order to determine the character of the instrument, whether it is a deed to secure a debt or whether it is a mortgage. Sims v. Jones, 158 Ga. 384 , 123 S.E. 614 , 1924 Ga. LEXIS 160 (1924).

Wills

Will of land is governed by the lex loci. Key v. Harlan, 52 Ga. 476 , 1874 Ga. LEXIS 326 (1874); Mechanics' & Traders' Bank v. Harrison, 68 Ga. 463 , 1882 Ga. LEXIS 34 (1882); Guerard v. Guerard, 73 Ga. 506 , 1884 Ga. LEXIS 158 (1884).

Wills of personalty are governed by the party’s domicile. Latine v. Clements, 3 Ga. 426 , 1847 Ga. LEXIS 124 (1847); Grote v. Pace, 71 Ga. 231 , 1883 Ga. LEXIS 167 (1883).

Foreign will conveying both realty and personalty admitted to probate. —

A will conveying both realty and personalty, executed in a foreign state according to its laws and there admitted to probate, may in like manner be admitted to probate in this state upon production of an exemplification of the probate proceedings duly certified, notwithstanding the will may not have been executed in conformity to the laws of this state. Such an instrument, however, is not a good will insofar as it attempts a devise of realty located in this state. Knight v. Wheedon, 104 Ga. 309 , 30 S.E. 794 , 1898 Ga. LEXIS 322 (1898).

Will probated in foreign state, treated as valid bequest of personalty. —

Where a will bequeathing realty and personalty was executed according to the law of the state where the testator resided, and was duly probated in that state, it may be treated in this state as a valid bequest of the personalty, although it was not attested by as many witnesses as required by the law of Georgia. Fraser v. Rummele, 195 Ga. 839 , 25 S.E.2d 662 , 1943 Ga. LEXIS 292 (1943).