O.C.G.A. § 36-1-5 (2019)

Annotations

Cross references. - Further provisions regarding service of process on counties, § 9-11-4(e)(5). Editor’s notes. - The directory language of Ga. L. 1987, p. 1482, § 4 provided ‘‘Chapter 5 of Title 36 of the Official Code of Georgia Annotated, relating to the

organization of county government, is amended . . . .’’ The Code section amended by Ga. L. 1987, p. 1482, § 4, however, is Code Section 36-1-5 which appears in this chapter. Ga. L. 1987, p. 1482, § 4 has been incorporated above as an amendment to this Code section.

Law reviews. - For article comparing sections of Ch. 11, T. 9, the Georgia Civil Practice Act, with preexisting provisions of the Georgia Code, see 3 Ga. St. B. J. 295 (1967).

JUDICIAL DECISIONS Service on one commissioner insufficient. - Since the statute prescribing the method of service on counties requires service on a majority of the commissioners, service on the county cannot be perfected by serving one member of a board of commissioners. Clayton County v. Sarno, 112 Ga. App. 379, 145 S.E.2d 283 (1965). Service on chair sufficient. - Service upon the chair of the board of county commissioners under Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4) provides an alternative to serving a suit against a county by serving a majority of the members of the board of commissioners as required by former Code 1933, § 23-1503 (see now O.C.G.A. § 36-1-5). Board of Comm’rs v. Allgood, 234 Ga. 9, 214 S.E.2d 522 (1975). Irregularity in service cured by appearance. - General appearance by answering a petition waives all irregularities in the service of process. Franklin County v. Payne, 115 Ga. App. 52, 153 S.E.2d 732 (1967). County may employ counsel. - County

generally has, in the absence of express authority, implied statutory authority through the county’s proper officers or agents, to employ counsel to represent the county in civil suits in which the county is interested, or to which the county is a party. The power to control the fiscal affairs of a county carries with it the power to employ counsel. Templeman v. Jeffries, 172 Ga. 895, 159 S.E. 248 (1931). All suits by or against a county shall be in the name thereof. - Suit cannot be against the board of commissioners, and a suit so brought cannot be corrected by amendment. Arnett v. Board of Comm’rs, 75 Ga. 782 (1885). Since the Constitution of 1877 all suits by or against a county must be in the name of a county. Commissioners of Rds. & Revenue v. Howard, 59 Ga. App. 541, 1 S.E.2d 222 (1939). Cited in Douglas County v. Brown & Riley Enters., Ltd., 114 Ga. App. 410, 151 S.E.2d 510 (1966); Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978); Housworth v. Glisson, 485 F. Supp. 29 (N.D. Ga. 1978).

RESEARCH REFERENCES Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 741. C.J.S. - 20 C.J.S., Counties, § 418. ALR. - Power of city, town, or county or its officials to compromise claim, 105 A.L.R. 170; 15 A.L.R.2d 1359. Waiver of, or estoppel to assert, defects in notice of claim against county or municipality, 148 A.L.R. 637. Limitation period as affected by re-

quirement of notice or presentation of claim against governmental body, 3 A.L.R.2d 711. Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body, 65 A.L.R.2d 1278. Waiver of, or estoppel to assert, failure to give or defects in notice of claim against state or local political subdivision - modern status, 64 A.L.R.5th 519.