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O.C.G.A. § 9-13-128 — Damages for delay; procedure following dismissal or withdrawal of illegality | Georgia Code
O.C.G.A. § 9-13-128 (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 6 ILLEGALITY

9-13-128. Damages for delay; procedure following dismissal or withdrawal of illegality.

Upon the trial of an issue formed on an affidavit of illegality, the jury trying the case shall have power to assess such damages as may seem reasonable and just, not exceeding 25 percent of the principal debt, where it is made to appear that the illegality was interposed for delay only. Whenever an illegality is dismissed for insufficiency or informality or is withdrawn, plaintiff in execution may proceed as is provided in cases where claims are dismissed or withdrawn.

(Ga. L. 1859, p. 49, § 1; Code 1863, § 3594; Code 1868, § 3617; Ga. L. 1871-72, p. 52, § 1; Code 1873, § 3667; Code 1882, § 3667; Civil Code 1895, § 4739; Civil Code 1910, § 5308; Code 1933, § 39-1007.)

JUDICIAL DECISIONS

First sentence of this section permits assessment of damages for delay, even though the affidavit is filed under a legislative act later declared unconstitutional. White v. Haslett, 49 Ga. 280 (1873).

Under second sentence, affidavit of illegality may be withdrawn by the party interposing the affidavit, subject to the right of the plaintiff in fieri facias to proceed, as in claim cases when the claims are withdrawn. Thomas & Co. v. Parker, 69 Ga. 283 (1882). See also Rawlings v. Brown, 15 Ga. App. 162, 82 S.E. 803 (1914).

Circumstances authorizing jury to infer purpose of delay.

- When a portion of an affidavit of illegality has been dismissed on demurrer (now motion to dismiss) for insufficiency, and the remainder is admitted to be incorrect, the jury may be authorized to infer from this that it was filed for delay only, and a verdict assessing damages in favor of the plaintiff in execution, at less than 25 percent of the principal debt, will not be disturbed since there is any evidence to support it, unless for some material error of law. Felker v. Still, 35 Ga. App. 236, 133 S.E. 519 (1926).

Lack of discretion of court.

- When the trial court ruled on matters of law as to the claims in an affidavit of illegality and as a matter of law found that the claims lacked merit, the court had no legal discretion to deny damages. Glover v. Ware, 236 Ga. App. 40, 510 S.E.2d 895 (1999).

Cited in Baker v. Akerman, 77 Ga. 89 (1886); Franklin v. Mobley, 202 Ga. 212, 42 S.E.2d 755 (1947); Hunt v. Lee, 199 Ga. App. 130, 404 S.E.2d 446 (1991).

RESEARCH REFERENCES

C.J.S.

- 33 C.J.S., Executions, § 288 et seq.

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This Georgia Code resource is curated by a Florida and Georgia attorney, 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.