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Call Now: 904-383-7448Whenever a claim is dismissed for insufficiency or is withdrawn, the plaintiff in execution may have a case made up and submitted to the jury charging that the claim was filed for the purpose of delay. Upon proof of the same, defendant and claimant having the same power to resist the case as in claim cases where damages are claimed, the jury, under instructions from the court, may give damages as in cases where the claim is not withdrawn but is submitted for trial to the jury. The cases so submitted shall be tried at the time of the disposal of the claim if the parties are ready, but continuances shall be granted as in other cases.
(Ga. L. 1871-72, p. 52, § 1; Code 1873, § 3741; Code 1882, § 3741; Civil Code 1895, § 4626; Civil Code 1910, § 5172; Code 1933, § 39-906.)
Withdrawal of claim is suggestion that the claim was made for purpose of delay. National Exch. Bank v. Walker, 80 Ga. 281, 4 S.E. 763 (1887).
- In a case under this section, it is enough that a plain issue charging that the claim was interposed for delay only be tendered, and no formal pleading is necessary, especially if no objection is made to it before or at the trial. Shealy v. Toole, 62 Ga. 170 (1878).
Burden of proving that claim is filed for delay only rests upon the plaintiff in execution. Dobbs Lumber Co. v. Appling, 97 Ga. 375, 24 S.E. 441 (1895).
When claim was dismissed for insufficiency, the plaintiff was entitled to proceed at once with a claim for damages in the absence of some valid reason for a continuance or postponement. Franklin v. Mobley, 202 Ga. 212, 42 S.E.2d 755 (1947).
When administrator named specific amount of damages from claim, the administrator could not recover more. Rexford v. Bleckley, 131 Ga. 678, 63 S.E. 337 (1908); Crawford v. Crawford, 139 Ga. 68, 76 S.E. 564 (1912).
Cited in Mercer v. Baldwin, 85 Ga. 651, 11 S.E. 846 (1890); Shelnutt v. Whitesburg Banking Co., 141 Ga. 678, 81 S.E. 1106 (1914); McDaniel v. Norris, 80 Ga. App. 734, 57 S.E.2d 299 (1950); Bankston v. Smith, 134 Ga. App. 882, 216 S.E.2d 634 (1975).
- 25A C.J.S., Damages, § 393.
No results found for Georgia Code 9-13-104.