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2018 Georgia Code 9-13-142 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 9-13-142 Case Law from Google Scholar Amendments to OCGA 9-13-142

TITLE 9 CIVIL PRACTICE

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

ARTICLE 7 JUDICIAL SALES

9-13-142. Requirements for official organ of publication; designation where no journal or newspaper qualifies; how official organ changed; notice to Secretary of State.

  1. No journal or newspaper published in this state shall be declared, made, or maintained as the official organ of any county for the publication of sheriff's sales, citations of probate court judges, or any other advertising commonly known in terms of "official or legal advertising" and required by law to be published in such county official newspaper unless the newspaper shall meet and maintain the following qualifications:
    1. "Newspaper" as used in this Code section means a printed product of multiple pages containing not greater than 75 percent advertising content in no more than one-half of its issues during the previous 12 months, excluding separate advertising supplements inserted into but separately identifiable from any regular issue or issues of the newspaper;
    2. The newspaper shall be published within the county and continuously at least weekly for a period of two years or is the direct successor of such a newspaper. Failure to publish for not more than two weeks in any calendar year shall not disqualify a newspaper otherwise qualified;
    3. For a period of two years prior to designation and thereafter, the newspaper shall have and maintain at least 75 percent paid circulation as established by an independent audit. Paid circulation shall not include newspapers that are distributed free or in connection with a service or promotion at no additional charge to the ultimate recipient. For circulation to be considered paid, the recipient of the newspaper or such recipient's employer or household must pay reasonable and adequate consideration for the newspaper. No rules of circulation of audit companies, the United States Postal Service, or accounting principles may be considered in determining paid circulation if they are inconsistent with the provisions of this subsection;
    4. Based on the published results of the 1990 United States decennial census or any future such census, the newspaper shall have and maintain at least the following paid circulation within the county for which it is designated as the legal organ newspaper:
      1. Five hundred copies per issue in counties having a population of less than 20,000;
      2. Seven hundred fifty copies per issue in counties having a population of at least 20,000 but less than 100,000; or
      3. One thousand five hundred copies per issue in counties having a population of 100,000 or greater; and
    5. For purposes of this Code section, paid circulation shall include home or mail delivery subscription sales, counter, vendor and newsrack sales, and sales to independent newspaper contract carriers for resale. Paid circulation shall not include multiple copies purchased by one entity unless the multiple copies are purchased for and distributed to the purchaser's officers, employees, or agents, or within the purchaser's household.
  2. However, in counties where no journal or newspaper meets the qualifications set forth in subsection (a) of this Code section, the official organ may be designated by the judge of the probate court, the sheriff, and the clerk of the superior court, a majority of these officers governing from among newspapers otherwise qualified to be a legal organ that meet the minimum circulation in the preceding subsection for the county, or if there is no such newspaper, then the newspaper having the greatest general paid circulation in the county.
  3. Any selection or change in the official organ of any county shall be made upon the concurrent action of the judge of the probate court, the sheriff, and the clerk of the superior court of the county or a majority of the officers. No change in the official legal organ shall be effective without the publication for four weeks of notice of the decision to make a change in the newspaper in which legal advertisements have previously been published. All changes in the official legal organ shall be made effective on January 1 unless a change has to be made where there is no other qualified newspaper.
  4. Notwithstanding the other provisions of this Code section, an official organ of any county meeting the qualifications under the statute in force at the time of its appointment and which was appointed prior to July 1, 1999, may remain the official organ of that county until a majority of the judge of the probate court, the sheriff, and the clerk of the superior court determine to appoint a new official organ for the county.
  5. During the month of December in each year, the judge of the probate court of each county shall notify the Secretary of State, on a form supplied by the Secretary of State, of the name and mailing address of the journal or newspaper currently serving as the official organ of the county. The judge of the probate court shall also likewise notify the Secretary of State of any change in the official organ of the county at the time that such change is made. The Secretary of State shall maintain at all times a current listing of the names and addresses of all county organs and shall make such list available to any person upon request.

(Laws 1850, Cobb's 1851 Digest, p. 580; Code 1863, § 3577; Code 1868, § 3600; Code 1873, § 3650; Code 1882, § 3650; Civil Code 1895, § 5460; Ga. L. 1910, p. 87, § 1; Code 1910, § 6065; Code 1933, §§ 39-1103, 39-1107; Ga. L. 1953, Nov.-Dec. Sess., p. 271, § 1; Ga. L. 1989, p. 1248, § 1; Ga. L. 1992, p. 1035, § 1; Ga. L. 1997, p. 528, § 1; Ga. L. 1999, p. 6, § 2.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1999, in subsection (a), punctuation was revised at the end of paragraphs (a)(1) through (a)(3), "United States" was substituted for "U.S." in paragraph (a)(3), and "; and" was substituted for a period at the end of subparagraph (a)(4)(C); and a comma was inserted in subsections (d) and (e).

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 13 (1997). For note discussing procedures governing execution sales and the application of the proceeds of the sales, see 12 Ga. L. Rev. 814 (1978).

JUDICIAL DECISIONS

Continuous-publication requirement was intended as evidence of stability that newspaper ought to have before it could enjoy the status of a legal gazette which must carry legal advertisements that affect the lives and property of citizens of this state. This statutory purpose is subserved if the newspaper does in fact have 85 percent paid circulation at the time of the newspaper's designation as an official legal organ, and not necessarily by an 85 percent paid circulation of a two year duration. Williams v. Athens Newspapers, Inc., 241 Ga. 274, 244 S.E.2d 822 (1978).

Duties of designating officials.

- Officials charged with designating a newspaper as an official organ were not required to ensure that the newspaper met the statutory requirements at the time of the annual report to the Secretary of State. Atlanta Journal v. Clarke, 269 Ga. 33, 497 S.E.2d 358 (1998).

Publication ordinance not a prior restraint.

- Requirement that applicants had to "advertise" in the legal gazette was not a prior restraint in violation of the First Amendment; thus, the city's current zoning and adult entertainment ordinance was valid as the ordinance placed no time limits on when the paper had to run the advertisements and no repercussions if the paper failed to run the advertisement in a timely manner. Further, the legal organ of the county published public notices or advertisements as a matter of course and had certain restrictions placed on it pursuant to O.C.G.A. § 9-13-142. Augusta Video, Inc. v. Augusta-Richmond County, F.3d (11th Cir. Sept. 6, 2007)(Unpublished).

Newspapers to which section applicable.

- This section applies alike to newspapers published in county and those nearest county having largest or general circulation therein. McGinty v. Chambers, 182 Ga. 341, 185 S.E. 513 (1936).

Publication in county newspaper where county has newspaper.

- Newspaper selected as official organ must be published in county, if at time of selection a newspaper is published in the county. Dooly v. Gates, 194 Ga. 787, 22 S.E.2d 730 (1942).

Subscriber list requirements.

- O.C.G.A. § 9-13-142 requires that the subscribers be legitimate subscribers who have paid adequate consideration for their subscriptions and who regularly receive the publication, not persons fraudulently listed by the newspaper who have not actually purchased subscriptions or whose subscriptions were paid for by the newspaper to inflate the newspaper's subscriber list. Community Newspapers, Inc. v. Baker, 198 Ga. App. 680, 402 S.E.2d 545 (1991).

Distribution.

- Under O.C.G.A. §§ 9-13-140 and9-13-142, there exists no requirement that a journal or newspaper must in fact be distributed to the public "as a whole" in order for the advertisement to be deemed legally and sufficiently published. Sparti v. Joslin, 230 Ga. App. 346, 496 S.E.2d 490 (1998).

"Change" construed.

- Mere private declaration of an intention to make a change in the future, or an agreement with a publisher that at some future time a change should be made, was not a completed change within the provisions of this section. Dollar v. Wind, 135 Ga. 760, 70 S.E. 335 (1911) (but see Southern Crescent Newspapers L.P. v. Dorsey, 269 Ga. 41, 497 S.E.2d 360 (1998)).

Interpretation of word "successor" as used in this section is question of law. New Era Publishing Co. v. Guess, 231 Ga. 250, 201 S.E.2d 142 (1973).

Newspapers jointly serving as official medium.

- There is no provision of law authorizing two newspapers to be jointly designated as official medium for a county's legal advertisements. Rish v. Clements, 21 Ga. App. 287, 94 S.E. 318 (1917).

Newspaper need not be mechanically printed in county the newspaper serves as official organ. Southeastern Newspapers Corp. v. Griffin, 245 Ga. 748, 267 S.E.2d 21 (1980).

Requirement that newspaper have 85 percent paid circulation rate applies to newspaper chosen and not the newspaper's predecessor before merger which must have only been continuously published and mailed to a list of subscribers for two years. Southeastern Newspapers Corp. v. Griffin, 245 Ga. 748, 267 S.E.2d 21 (1980).

Statutory circulation rate requirement.

- Newspaper failed to statutorily qualify to serve as official legal organ of a county when the newspaper's circulation had fallen below 75 percent paid circulation for approximately 6 months out of the 2-year period prior to designation. Henry County Record, Inc. v. Cmty. Newspaper Holdings, Inc., 274 Ga. 353, 554 S.E.2d 150 (2001).

Newspaper's failure to publish during Christmas week for previous two years does not disqualify the newspaper under this section from being the legal organ of a county. Williams v. Athens Newspapers, Inc., 241 Ga. 274, 244 S.E.2d 822 (1978).

Challenge by competitor.

- Competing publication could not challenge the status of a legal organ on the ground that the newspaper's paid circulation had dropped below the statutory requirement. Atlanta Journal v. Clarke, 269 Ga. 33, 497 S.E.2d 358 (1998).

When newspaper published outside county preferred.

- Journal or newspaper which has been published and mailed to a bona fide list of subscribers for a period of 20 years, and which for a like period of time has published the official and legal advertisements of the county, though such journal or newspaper be not published in the county, is the official organ of the county, and has a legal right to publish the official and legal advertisements in preference to one which has not been continuously published and mailed to a bona fide list of subscribers for a period of two years, even though such latter journal or newspaper be published in the county. McGinty v. Chambers, 182 Ga. 341, 185 S.E. 513 (1936).

Change in statutory criteria.

- Because the newspaper satisfied the statutory criteria required of legal organs at the time the newspaper was appointed, and the designation process was complete when the criteria was amended in 1997, the amended criteria was inapplicable to the newspaper's designation. Southern Crescent Newspapers v. Dorsey, 269 Ga. 41, 497 S.E.2d 360 (1998).

Cited in Champion Box Co. v. Manatee Crate Co., 75 F.2d 340 (5th Cir. 1935); Georgia Cracker v. Hesters, 193 Ga. 706, 20 S.E.2d 7 (1942); Dooly v. Gates, 194 Ga. 787, 22 S.E.2d 730 (1942); Reed v. Southland Publishing Co., 222 Ga. 523, 150 S.E.2d 817 (1966).

OPINIONS OF THE ATTORNEY GENERAL

No date is specified upon which choice of organ shall be made, and a record should be kept of the meeting at which this is done. 1948-49 Op. Att'y Gen. p. 469.

Changing of organ allowed.

- Ordinary (now probate judge), clerk, and sheriff may change official organ during year. 1948-49 Op. Att'y Gen. p. 469.

Publication in currently constituted county official organ.

- County commissioner must publish official tax levy in currently constituted county official organ. 1948-49 Op. Att'y Gen. p. 470.

Size of circulation irrelevant in choice of official newspaper.

- When two journals or newspapers circulate generally in a county, and both meet the statutory requirements, thereby qualifying for selection as the official organ of the county, the officials, who are designated to select which journal or newspaper shall be the official organ, are not bound by statute to base their selection upon the size of circulation, but are free to choose either. 1960-61 Op. Att'y Gen. p. 311.

Circulation requirement.

- Official organ for publication of legal advertising must continually have paid circulation of 85 percent. 1962 Op. Att'y Gen. p. 68.

Independent audit must show that a proposed new legal organ has had an 85% paid circulation rate for the 12 months prior to the newspaper being declared the county's official legal organ. 1997 Op. Att'y Gen. No. U97-14.

Concurrent designation of county organ.

- Ordinary (now probate judge), sheriff, and clerk of superior court have authority to concurrently designate county organ, should it become necessary. 1968 Op. Att'y Gen. No. 68-181.

Newspaper may be mechanically printed outside county.

- Bona fide county newspaper which was otherwise qualified under former Code 1933, §§ 39-1101 through 39-1103 and 39-1107 (see now O.C.G.A. §§ 9-13-140 and9-13-142) may be chosen as the official organ of the county even if the newspaper is mechanically printed outside of the county. 1973 Op. Att'y Gen. No. U73-15.

County newspaper may be selected by Constitutional Amendments Publications Board for publishing of general constitutional amendments as provided in former Ga. Const. 1976, Art. XIII, so long as this newspaper is designated as the "official organ of that county." 1976 Op. Att'y Gen. No. 76-71.

Official publisher may maintain action against official required to publish legal notices.

- For a newspaper which has been properly selected as the official organ of a county, the publisher of that newspaper may maintain an action against the sheriff, the probate judge, or other governmental officers who are required to publish legal or official advertising in a county's official newspaper. 1979 Op. Att'y Gen. No. U79-25.

All advertisements mandated by law are not required to be published in official organ of a county. 1979 Op. Att'y Gen. No. U79-25.

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Judicial Sales, § 28 et seq. 58 Am. Jur. 2d, Newspapers, Periodicals, and Press Associations, §§ 34, 36, 38, 41, 48.

C.J.S.

- 50A C.J.S., Judicial Sales, § 14 et seq.

ALR.

- Necessity that newspaper be published in English language to satisfy requirements regarding publication of legal or official notice, 90 A.L.R. 500.

What constitutes newspaper of "general circulation" within meaning of state statutes requiring publication of official notices and the like in such newspaper, 24 A.L.R.4th 822.

Application of requirement that newspaper be locally published for official notice publication, 85 A.L.R.4th 581.

Cases Citing O.C.G.A. § 9-13-142

Total Results: 3  |  Sort by: Relevance  |  Newest First

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Atlanta Journal & Atlanta Constitution v. Clarke, 497 S.E.2d 358 (Ga. 1998).

Cited 3 times | Published | Supreme Court of Georgia | Feb 2, 1998 | 269 Ga. 33, 98 Fulton County D. Rep. 323

...Mitchell, Elaine W. Brooks, Carothers & Mitchell, LLC, Buford, for Walter J. Clarke, II. David E. Hudson, Hull, Towill, Norman & Barrett, Augusta, for Amicus Appellant. BENHAM, Chief Justice. This appeal calls for an interpretation of the provisions in OCGA § 9-13-142 for the designation of a newspaper as the "official organ" of a county, the newspaper in which legal advertisements are to be published. Under that section, a journal or newspaper qualifies for designation as legal organ only if it meets requirements for "continuous publication" and "85% paid subscription" for specified periods of time. OCGA § 9-13-142(a). The designation and any changes in designation are made by a majority of the judge of the probate court, the sheriff, and the clerk of superior court. OCGA § 9-13-142(b) & (c)....
...The probate court judge is tasked additionally with making an annual report to the Secretary of State during the month of December of the name and address of the designee, and must also report to the Secretary of State any changes in designation. OCGA § 9-13-142(d)....
...The statute recognizes that there may be occasions when the designating officials may find it proper to designate a different official organ at another time during the year. An *360 obvious occasion would be when an official organ completely ceases to publish. In summary, we conclude that OCGA § 9-13-142, in establishing the qualifications for designation of a newspaper or journal as the official organ of a county, has conferred on the sheriff, the clerk of superior court, and the probate judge an extremely broad discretion in determining when to change the designation....
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S. Crescent Newspapers, L.P. v. Dorsey, 269 Ga. 41 (Ga. 1998).

Cited 1 times | Published | Supreme Court of Georgia | Feb 2, 1998 | 497 S.E.2d 360, 98 Fulton County D. Rep. 318

...rial court’s finding that paid subscriptions constituted at least 85 percent of the Champion’s total circulation figures was not clearly erroneous, and we reject the News/Era’s contrary assertion.5 2. Both before and after its amendment, OCGA § 9-13-142 (c) provides that: No change shall be made in the official organ of any county except upon the concurrent action of the judge of the probate court, the sheriff, and the clerk of the superior court of the county or a majority of the officers. As discussed above, on April 4, 1997, the DeKalb County Sheriff and Superior Court Clerk acted concurrently to designate the Champion as legal organ. Ten days later, the legislature amended section 9-13-142 (a)’s eligibility criteria for legal organs to require that, in order to serve as a legal organ, a newspaper must have maintained an 85 percent paid circulation for at least one year....
...Grady County’s legal organ, the Dollar Court applied the amended statutory criteria to disqualify the newly-designated paper.10 However, our current Code differs greatly from that in effect at the time of Dollar. Unlike the 1895 Code, our current section 9-13-142 plainly states that a change in a county’s legal organ “shall be made ....
...Hence, the reasoning of Dollar simply does not apply, and the Champion was not required to satisfy the new criterion before it could become DeKalb County’s legal organ. As this Court has recently reiterated, “ ‘The only qualifications imposed by OCGA § 9-13-142 are those which must be met at the time of [a newspaper’s] designation as legal organ.’ ”14 The Champion met the requirements that existed at the time of its designation as legal organ, and it need not have satisfied additional requirements imposed thereafter, although those additional requirements will be considered in all designations made after the amendment became effective. This reasoning is entirely consistent with the language of the amendment to section 9-13-142 imposing additional criteria on papers that would serve as legal organs....
...ter that date. The Champion’s designation, of course, occurred ten days before the Governor signed the amendment into law, and therefore the amendment, by its own terms, does not apply to that designation. 3. Similar to the 1895 Code, our current section 9-13-142 (both before and after its amendment) also requires that “No officer shall change the advertising connected with his [or her] office from one paper to another without first giving notice of his intention to do so in the paper in which his advertisements have previously been published.” In light of the mandatory language (enacted since the time of Dollar) of § 9-13-142 (c) that a change “shall” be made upon the concurrent action of a majority of the responsible county officials, we agree with the trial court that the statute’s notice provision is a ministerial function intended to inform the publi...
...In that situation, the failure of any one of those offices to make such a publication would prove fatal to the official designation of a new legal organ. We do not believe that the legislature intended to create such a contingent situation under OCGA § 9-13-142,17 and we agree with the trial court that the statutory requirement that notice of a change in legal organs be published is a ministerial duty. Obviously, the impact of this opinion is quite limited. It applies only to legal organs that were officially designated before OCGA § 9-13-142 was amended on April 14, 1997....
...al organs, the amended criteria is inapplicable to the Champion’s designation. For those reasons, the judgment of the trial court is affirmed. Judgment affirmed. All the Justices concur, except Hunstein, Carley and Hines, JJ, who dissent. OCGA § 9-13-142 (1993). OCGA § 9-13-142 (c) (1993 and Supp. 1997). OCGA § 9-13-142 (a) (1993). Cannon v....
...rt’s finding — the two independent professional circulation audits discussed above. Furthermore, this Court previously has indicated that there are various methods of determining what constitutes “paid circulation” within the context of OCGA § 9-13-142, and that the Code does not mandate one method over another....
...760 (70 SE 335) (1911). Under the then-existing law, only the sheriff was authorized to designate the paper in which his office’s official notices would be published. Civil Code (1895) § 5460. 135 Ga. at 763. Id. (Emphasis supplied.) OCGA § 9-13-142 (c). See Atlanta Journal & Constitution v. Clarke, 269 Ga. 33 (497 SE2d 358) (1998); New Era Pub. Co. v. Guess, 231 Ga. 250, 254 (201 SE2d 142) (1973). See OCGA § 9-13-142 (c). Williams v....
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Henry Cnty. Record, Inc. v. Cmty. Newspaper Holdings, Inc., 274 Ga. 353 (Ga. 2001).

Published | Supreme Court of Georgia | Oct 5, 2001 | 554 S.E.2d 150, 2001 Fulton County D. Rep. 3004

Hunstein, Justice. Pursuant to OCGA § 9-13-142, the Henry County sheriff, probate court judge and superior court clerk decided to change the official legal organ of the county from The Daily Herald, which is published by appellee Community Newspaper Holdings, Inc., to The Henry County Record (the Record), published by appellant Henry County Record, Inc. Appellee filed a petition for writ of mandamus and injunctive relief on the basis, inter alia, that the Record was not legally qualified under OCGA § 9-13-142 to be the official legal organ of Henry County....
...S01A1271; the three county officials who selected the Record as the official legal organ appeal in Case No. S01A1273. Finding no error in the trial court’s ruling, we affirm. 1. The trial court determined that the Record failed to meet the requirements set forth in OCGA § 9-13-142 (a) (3)....
...The Record could meet the statutory requirement only when the calculation involved the overall percentage of paid circulation to total papers distributed during the'two-year period. We agree with the trial court that the “have and maintain” language in OCGA § 9-13-142 (a) (3) is plain and unambiguous and that this language requires a 75 percent paid circulation for every week of publication during the two-year period prior to designation in order for a newspaper to qualify under the statute.1 The trial...
...Contrary to appellants’ argument, the broad discretion *354vested in the designated county officials to select the legal organ for the county does not authorize those officials to disregard the clear and unambiguous language regarding the statutorily-mandated qualifications the Legislature has set forth in OCGA § 9-13-142. We find inapposite the cases appellants rely upon because they interpreted the predecessor to OCGA § 9-13-142 which lacked the “have and maintain” language present in the current statute. Decided October 5, 2001. Crumbley & Crumbley, R....
...Brenkskelle, for appellants (case no. S01A1273). Hull, Towill, Norman, Barrett & Salley, David E. Hudson, N. Shannon Gentry Lanier, for appellee. 2. Because the trial court correctly determined that the Record failed to meet the requirement in OCGA § 9-13-142 (a) (3) to serve as the official legal organ of Henry County, we need not address the other basis given by the trial court for its ruling. Judgment affirmed. All the Justices concur. OCGA § 9-13-142 (a) (2) provides an exception to this requirement by expressly recognizing that “[flailure to publish for not more than two weeks in any calendar year shall not disqualify a newspaper otherwise qualified.”