Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 5570 and former Code 1933, § 81-112 are included in the annotations for this Code section.

Section integral part of statutes of limitations.

- By holding that service of process does not relate back to toll statutes of limitations unless the plaintiff has acted diligently, the Georgia courts have interpreted O.C.G.A. §§ 9-11-3 and9-11-4 as integral parts of the state statutes of limitations. Cambridge Mut. Fire Ins. Co. v. City of Claxton, 720 F.2d 1230 (11th Cir. 1983).

Appeal to superior court from county tax assessment is a "complaint", which is required to be answered by responsive pleading. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556, 236 S.E.2d 532 (1977).

Filing must be followed by service.

- Filing of the petition is treated as the commencement of the suit only when followed by due and legal service. Murphy v. Ferguson-McElhaney Motor Co., 40 Ga. App. 847, 151 S.E. 663 (1930) (decided under former Civil Code 1910, § 5570); Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, 125 Ga. App. 423, 188 S.E.2d 167 (1972).

Date of filing of petition in clerk's office is the date of commencement of the suit, but this is so only when service is had on the defendant. Duren v. Pollock, 46 Ga. App. 706, 169 S.E. 44 (1933) (decided under former Code 1933, § 81-112).

Filing is not commencement of an action unless followed by service within a reasonable time, but once service is perfected the service will relate back to original date of filing, which will be considered the date of commencement of lawsuit. Franek v. Ray, 239 Ga. 282, 236 S.E.2d 629 (1977); Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).

Georgia cases interpreting the language of O.C.G.A. §§ 9-11-3 and9-11-4 conclude that the filing of the complaint does not toll the statute of limitations unless a plaintiff exercises diligence and ensures the complaint is served as quickly as possible; filing is still not the commencement of suit unless followed by service within a reasonable time, but once service is perfected upon a defendant, service will relate back to the original date of the filing which will be considered the date of the commencement of the law suit. Roberts v. Jones, 390 F. Supp. 2d 1333 (M.D. Ga. May 9, 2005).

Despite the fact that the Court of Appeals of Georgia could not discern whether a personal injury action filed by a husband and wife against a driver was dismissed because the statute of limitation had expired or because the husband and wife were not diligent in attempting service, the trial court did not abuse the court's discretion in dismissing the action because the driver had never been personally served with the complaint prior to the expiration of the statute of limitation. Nyass v. Tilahun, 281 Ga. App. 542, 636 S.E.2d 714 (2006).

Timeliness of service.

- Trial court properly dismissed a plaintiff's personal injury action filed against the defendant on insufficient service of process grounds as: (1) plaintiff did little to pursue service; (2) plaintiff inappropriately shifted the burden of the search on the court; and (3) the fact that the defendant served interrogatories and a request for production did not amount to a waiver of an insufficient service of process defense. Kelley v. Lymon, 279 Ga. App. 849, 632 S.E.2d 734 (2006).

Bankruptcy trustee's late service on a driver did not relate back to the filing of the personal injury complaint when the trustee failed to show that the trustee reasonably and diligently insured that service was made as quickly as possible after the driver made the trustee aware of the driver's true residence. Webster v. Western Express, Inc., F. Supp. 2d (M.D. Ga. Sept. 21, 2007).

Because a plaintiff did not satisfy the plaintiff's burden of showing that the plaintiff exercised due diligence in perfecting service of process on the defendant, the trial court abused the court's discretion in denying the defendant's motion to dismiss. Jones v. Brown, 299 Ga. App. 418, 683 S.E.2d 76 (2009).

Action commenced as of filing date.

- Service or waiver is essential, but when made service relates back to the date of filing, which establishes the date on which the action is commenced. Taylor v. Kohlmeyer & Co., 123 Ga. App. 493, 181 S.E.2d 496 (1971).

Trial court did not err in dismissing an officer's claims against an entity on the ground that the claims were filed in violation of an automatic bankruptcy stay provided by 11 U.S.C. § 362 because, when the original complaint was filed, that entity was a debtor in bankruptcy; the automatic stay was in effect at the time the action was commenced, rendering the claims against the entity void ab initio. Odion v. Varon, 312 Ga. App. 242, 718 S.E.2d 23 (2011), cert. denied, No. S12C0399, 2012 Ga. LEXIS 561 (Ga. 2012).

Failure to file civil case filing form not fatal.

- Putative biological father's failure to pay a filing fee and file a civil case filing form required by O.C.G.A. § 9-11-3(b) was not fatal to the father's legitimation claim because the clerk, when asked by the father, did not require payment of a filing fee, and the father's attorney merely followed the procedure suggested by the clerk. Brewton v. Poss, 316 Ga. App. 704, 728 S.E.2d 837 (2012).

Action not pending until service is perfected.

- Court does not have jurisdiction of the defendant until after service of process, and, accordingly, while action commences when petition is filed, it is not a "pending suit" between the parties until after service of process. Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, 125 Ga. App. 423, 188 S.E.2d 167 (1972).

Laches finding against plaintiff.

- In a personal injury suit, although the plaintiff passenger attempted to serve the defendant driver only once prior to the expiration of the statute of limitation, upon encountering difficulty locating the driver, the passenger's response was delayed at best, notwithstanding the imminent running of the statute of limitation, and the passenger did not even try to serve the driver until after the statute had run; thus, under the circumstances, the trial court properly found the passenger guilty of laches. Patterson v. Lopez, 279 Ga. App. 840, 632 S.E.2d 736 (2006).

Good faith delivery to deputy sheriff instead of clerk deemed filing of complaint.

- When there is a timely and good faith compliance with a deputy clerk's uncontroverted intention that the act of delivery of a complaint to a deputy sheriff would constitute delivery to and receipt by the clerk for purposes of filing, the complaint is to be considered filed as of the date of the compliance with that expressed intention. Forsyth v. Hale, 166 Ga. App. 340, 304 S.E.2d 81 (1983).

Venue will be determined as of date of filing as long as service is subsequently perfected upon the defendant within a reasonable time period. Franek v. Ray, 239 Ga. 282, 236 S.E.2d 629 (1977).

For purposes of venue and other jurisdictional questions, a party's residence at the time of filing suit is the determining factor. Franek v. Ray, 239 Ga. 282, 236 S.E.2d 629 (1977).

Effect of instructions to "hold" pleadings at the time of filing.

- Handing the clerk a petition, with instructions to endorse upon the petition an entry of filing and to issue process, but to "hold it" until plaintiff notified the clerk further, was not filing of a suit or commencement of an action within the meaning of the former statute, until such instructions were withdrawn; and if bar of statute of limitations attached before such instructions were withdrawn, the action was barred, notwithstanding service was regularly perfected after withdrawal of the instructions. Roddy v. Hartford Accident & Indem. Co., 65 Ga. App. 632, 16 S.E.2d 81 (1941) (decided under former Code 1933, § 81-112).

Application for contempt may not, standing alone, serve to commence a civil action for damages as it is not a complaint. Opatut v. Guest Pond Club, Inc., 254 Ga. 258, 327 S.E.2d 487 (1985).

Cited in Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970); Wheeler v. Wheeler, 229 Ga. 84, 189 S.E.2d 427 (1972); Owens v. Cobb County, 230 Ga. 707, 198 S.E.2d 846 (1973); Yeargin v. Burleson, 132 Ga. App. 652, 209 S.E.2d 99 (1974); Pascoe Steel Corp. v. Turner County Bd. of Educ., 139 Ga. App. 87, 227 S.E.2d 887 (1976); Mock v. Copeland, 160 Ga. App. 876, 288 S.E.2d 591 (1982); Harris v. Sampson, 162 Ga. App. 241, 290 S.E.2d 165 (1982); Land v. Casteel, 195 Ga. App. 455, 393 S.E.2d 710 (1990); Day v. Burnett, 199 Ga. App. 494, 405 S.E.2d 316 (1991); Cochran v. Bowers, 274 Ga. App. 449, 617 S.E.2d 563 (2005); Kirkland v. Tamplin, 283 Ga. App. 596, 642 S.E.2d 125 (2007); Fox v. City of Cumming, 289 Ga. App. 803, 658 S.E.2d 408 (2008); Rooks v. Tenet Health Sys. GB, Inc., 292 Ga. App. 477, 664 S.E.2d 861 (2008); Batesville Casket Co. v. Watkins Mortuary, Inc., 293 Ga. App. 854, 668 S.E.2d 476 (2008).

Am. Jur. 2d.

- 1 Am. Jur. 2d, Abatement, Survival, and Revival, §§ 12, 13. 1 Am. Jur. 2d, Actions, § 79.

C.J.S.

- 1A C.J.S., Actions §§ 1 et seq., 305, 310 et seq. 35A C.J.S., Federal Civil Procedure, § 300.