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O.C.G.A. § 9-13-104 — Trial of damage issue where claim dismissed or withdrawn | Georgia Code
O.C.G.A. § 9-13-104 (2018) Copy Cite Official Site Syfertize CourtListener Scholar Amendments

TITLE 9 CIVIL PRACTICE

Section 13. Executions and Judicial Sales, 9-13-1 through 9-13-178.

ARTICLE 5 CLAIMS

9-13-104. Trial of damage issue where claim dismissed or withdrawn.

Whenever a claim is dismissed for insufficiency or is withdrawn, the plaintiff in execution may have a case made up and submitted to the jury charging that the claim was filed for the purpose of delay.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damages are claimed, the jury, under instructions from the court, may give damages as in cases where the claim is not withdrawn but is submitted for trial to the jury.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.)

JUDICIAL DECISIONS

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).

Formal pleading not necessary.

- 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).

RESEARCH REFERENCES

C.J.S.

- 25A C.J.S., Damages, § 393.

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This Georgia Code resource is curated by Georgia Bar member Graham W. Syfert, a personal injury and workers' compensation attorney admitted in Georgia (State Bar of Georgia No. 881027, since 2006) and Florida. Attorney Syfert regularly works with Title 9 in the context of Georgia civil practice and statute of limitations and represents clients throughout Northeast Florida and South Georgia. For legal consultation, call 904-383-7448.