Georgia Civil Practice Act

Notes

• This page reflects the contents of the Georgia Legal Code chapter 9-2, also known as the Georgia Civil Practice Act, as transcribed on 2005-10-03 (from source marked "Translation Date:09/30/2004 Translation Time:12:23:55"). It is reproduced here for purposes of annotation and cross-reference, but the original should always be checked if accuracy is important.

Contents

Template:OCGA code As used in this title, the term:

1. 'Action' means the judicial means of enforcing a right.
2. 'Civil action' means an action founded on private rights, arising either from contract or tort.
3. 'Penal action' means an action allowed in pursuance of public justice under particular laws.

(a) An action may be against the person, or against property, or both.

(b) Generally, a proceeding against the person shall bind the property also. A proceeding against property without service on the person shall bind only the particular propert

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

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

(a) No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.

(b) The rule requiring a plaintiff to elect shall not apply to a prior attachment against property where the defendant is subsequently served personally nor to an attachment obtained during the pendency of an action. However, the judgment in the case against the person shall set out the fact of its identity with the proceedings against the property.

Template:OCGA code No demand shall be necessary before the commencement of an action, except in such cases as the law or the contract prescribe

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

Sections 9-2-8 through 9-2-19 do not appear to exist; they may have been repealed.

(a) As a general rule, an action on a contract, whether the contract is expressed, implied, by parol, under seal, or of record, shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent.

(b) The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.

(a) An action for a tort shall, in general, be brought in the name of the person whose legal right has been affected. In the case of an injury to property, a tort action shall be brought in the name of the person who was legally interested in the property at the time the injury thereto was committed or in the name of his assignee.

(b) An action for a tort shall be brought against the party committing the injury, either by himself, his servant, or an agent in his employ.

(c) If the person whose legal right has been affected has received medical assistance benefits pursuant to Chapter 4 of Title 49, prior to initiating recovery action, the representative or attorney who has actual knowledge of the receipt of said benefits shall notify the Department of Community Health of the claim. Mailing and deposit in a United States post office or public mail box of said notice addressed to the Department of Community Health with adequate postage affixed is adequate legal notice of the claim. Notice as provided in this subsection shall not be a condition precedent to the filing of any action for tort. Initiating recovery action shall include any communication with a party who may be liable or someone financially responsible for that liability with regard to recovery of a claim including but not limited to the filing of an action in court.

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

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

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

(a) Actions may be maintained against and in the name of any unincorporated organization or association for any cause of action for or upon which the plaintiff therein may maintain such an action against the members of the organization or association.

(b) Service of process in the action against the organization or association shall be had by service upon any officer or official member of such organization or association, or upon any officer or official member of any branch or local of the organization or association, provided that any such organization or association may file with the Secretary of State a designated officer or agent upon whom service shall be had and his residence address within the state. If the designation is made and filed, service of process shall be had only on the officer or agent designated, if he can be found within the state.

(c) The organization or association shall be suable in any cause of action. The action may be maintained in any county where the organization or association does business or has in existence a branch or local organization.

(d) Where a judgment in such actions is rendered in favor of the plaintiff against the organizations or associations, the property of the organization or association shall be liable to the satisfaction of the judgment. No such judgment shall be enforced against the individual property of any member of an unincorporated association, unless the member has personally participated in the transaction for which the action was instituted and has been served with process as provided by law.

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

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

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

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

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

Sections 9-2-31 through 9-2-39 do not seem to exist.

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

Template:OCGA code No action for a tort shall abate by the death of either party, where the wrongdoer received any benefit from the tort complained of; nor shall any action or cause of action for the recovery of damages for homicide, injury to the person, or injury to property abate by the death of either party. The cause of action, in case of the death of the plaintiff and in the event there is no right of survivorship in any other person, shall survive to the personal representative of the deceased plaintiff. In case of the death of the defendant, the cause of action shall survive against said defendant´s personal representative. However, in the event of the death of the wrongdoer before an action has been brought against him, the personal representative of the wrongdoer in such capacity shall be subject to the action just as the wrongdoer himself would have been during his life, provided that there shall be no punitive damages against the personal representative.

Template:OCGA code In all actions against two or more defendants, one or more of whom have died or may die pending the action, the plaintiff may suggest the death of record and proceed against the surviving defendants to the extent of their respective liabilities.

Template:OCGA code An action against several persons shall not abate where it appears that some of the defendants are not liable but may proceed against those who are liable.

(a) A former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement. However, if the first action is so defective that no recovery can possibly be had, the pendency of a former action shall not abate the latter.

(b) Parol evidence shall be admissible to show that a matter apparently covered by the judgment was not passed upon by the court.

Template:OCGA code The pendency of a prior action in another state shall not abate an action between the same parties for the same cause in this state

(a) Whenever it is made to appear to the judge of any court that any party to a case pending in the court, after the case has been commenced, has instituted proceedings in any court of any other state involving the same controversy or cause of action, or in which the judgment which might be rendered in the other state might be pleadable in the case in this state as affecting the relief sought, it shall be the duty of the judge of the court in which the case is pending to set the case specially and ahead of all other business for trial as the first case at the next ensuing term of the court, except for other cases having precedence for the same reason.

(b) No case so assigned for trial shall be continued or postponed for more than 30 days for any cause whatsoever at the instance of the party who has instituted the case or proceedings in the foreign state. The case may be postponed from day to day for good cause for not exceeding 30 days at the instance of such party, but after being postponed for the 30 days it shall not be further postponed at his instance. If the term of court ends within the 30 days and the case has not been continued for the term, it shall stand for trial as the first case at the next ensuing term. This Code section shall not be applied so as to set any case for trial before proper times have elapsed for notice, the filing of defensive pleadings, and discovery. Proper time limits for discovery shall be in the discretion of the judge.

Template:OCGA code In the case of actions by informers to recover any fine, forfeiture, or penalty, the first filed in the clerk´s office shall have precedence for the same cause of action and the latter filed actions shall abate.

Sections 9-2-48 through 9-2-59 do not appear to exist.

(a) For the purposes of this Code section, an order of continuance will be deemed an order and the word 'proceedings' shall be held to include, but shall not be limited to, an appeal from an award of assessors or a special master in a condemnation proceeding.

(b) Any action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.

(c) When an action is dismissed under this Code section, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.

(a) When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.

(b) This Code section shall not apply to contracts for the sale of goods covered by Article 2 of Title 11.

(c) The provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.

Template:OCGA code A retraxit differs from a dismissal or discontinuance in that a retraxit is the open, public, and voluntary renunciation by the plaintiff in open court of his action or cause of action. It is positive and conclusive of the plaintiff´s right of action. Where a retraxit is entered by the plaintiff and a judgment is entered thereon by the defendant, the plaintiff´s right of action shall be forever gone. A dismissal or discontinuance is negative, and the plaintiff may recommence his action on the payment of costs.

Template:OCGA code When any action is dismissed or discontinued and the plaintiff desires to recommence his action, if he will make and file with his complaint, summons, or other proceedings an affidavit in writing stating that he is advised and believes that he has good cause for recommencing his action and that because of his indigence he is unable to pay the costs that have accrued in the case, he shall have the right to renew the action without payment of the cost as aforesaid.