O.C.G.A. § 9-3-94 (2019)

Annotations

JUDICIAL DECISIONS This section is a statutory and not a judicial exception, based on invincible necessity. Weaver v. Davis, 2 Ga. App. 455, 58 S.E. 786, 1907 Ga. App. LEXIS 423 (1907). Purpose of section. - Reason why law provides that time defendant is absent from state shall not be computed in the defendant’s favor is that while the defendant is a nonresident the defendant cannot be sued in the courts of this state, and if time of the defendant’s absence from state was permitted to be computed in the defendant’s favor any defendant could remove beyond limits of state and thereby defeat valid actions against any defendant. Tift v. Bank of Tifton, 60 Ga. App. 563, 4 S.E.2d 495, 1939 Ga. App. LEXIS 86 (1939). Basis for this saving provision is inability to bring action in this state because of temporary absence of debtor. Miller v. Rackley, 199 Ga. 370, 34 S.E.2d 438, 1945 Ga. LEXIS 312 (1945). Defendant must have been citizen when debt was incurred. - To come within words of this section, the defendant must have been a citizen of this state at the time of accrual of debt and subsequently have removed from state. Pare v. Mahone, 32 Ga. 253, 1861 Ga. LEXIS 169 (1861); Miller v. Rackley, 199 Ga. 370, 34 S.E.2d 438, 1945 Ga. LEXIS 312 (1945).

Residence of debtor. - There is no saving in favor of creditor under this section for nonresidence of debtor, if debtor never resided here. Bishop v. Sanford, 15 Ga. 1, 1854 Ga. LEXIS 1 (1854); Edwards v. Ross, 58 Ga. 147, 1877 Ga. LEXIS 35 (1877); Cain v. Seaboard Air-Line Ry., 138 Ga. 96, 74 S.E. 764, 1912 Ga. LEXIS 209 (1912). Removal must be intended as change of residence. - In order for removal of debtor from this state to suspend operation of statute of limitations, it must be accompanied by intention to change the debtor’s legal residence or domicile. Stanfield v. Hursey, 36 Ga. App. 394, 136 S.E. 826, 1927 Ga. App. LEXIS 88 (1927). Long-arm statute. - Two-year statute of limitations on actions for personal injury was not tolled throughout the period of defendants’ alleged absence from the state since there was no showing that the defendants could not have been served with process pursuant to the long-arm statute. Towns v. Brown, 177 Ga. App. 504, 339 S.E.2d 926, 1986 Ga. App. LEXIS 1464 (1986); Gould v. Latorre, 227 Ga. App. 32, 488 S.E.2d 116. This section does not apply when the defendant is temporarily absent. Sedwick v. Gerding, 55 Ga. 264, 1875 Ga. LEXIS 399 (1875).

Rule that statutory period is tolled during time defendant resides in another state, until the defendant returns to this state, does not apply when absence is only temporary. Bryant v. Sanders, 139 Ga. App. 379, 228 S.E.2d 329, 1976 Ga. App. LEXIS 1816 (1976). Speculation as to defendant’s whereabouts. - Claimant’s mere speculation as to the driver’s possible whereabouts was insufficient to invoke the tolling provision of O.C.G.A. § 9-3-94. Costello v. Bothers, 278 Ga. App. 750, 629 S.E.2d 599, 2006 Ga. App. LEXIS 409 (2006), cert. denied, No. S06C1480, 2006 Ga. LEXIS 1023 (Ga. Nov. 20, 2006), overruled in part, Ragan v. Mallow, 319 Ga. App. 443, 744 S.E.2d 337, 2012 Ga. App. LEXIS 1061 (2012), overruled in part as stated in Durland v. Colotl, 359 Ga. App. 170, 855 S.E.2d 83, 2021 Ga. App. LEXIS 114 (2021). Section applies only when service made impossible. - Tolling by reason of removal from this state applies only if removal makes it impossible to perfect service on defendant. Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628, 1973 Ga. App. LEXIS 1181 (1973). If process can be lawfully served on the defendant, thus enabling the plaintiff to proceed with the action, the period of the defendant’s absence from state is not to be excluded from period of limitation, and the statute will continue to run during the defendant’s absence. Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628, 1973 Ga. App. LEXIS 1181 (1973). Tolling statute could not be applied to extend the statute of limitations in consolidated personal injury renewal actions because the fact that the driver against whom the actions were filed had moved to Maryland did not make it impossible to perfect service. Dickson v. Amick, 291 Ga. App. 557, 662 S.E.2d 333, 2008 Ga. App. LEXIS 571 (2008), overruled in part, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 765 S.E.2d 413, 2014 Ga. App. LEXIS 717 (2014). No application to dormant judgments. - This section does not have reference to period of time in which judg-

ment becomes dormant when not kept in life in any manner specified by law. Tift v. Bank of Tifton, 60 Ga. App. 563, 4 S.E.2d 495, 1939 Ga. App. LEXIS 86 (1939); Stanley v. Stanley, 141 Ga. App. 411, 233 S.E.2d 454, 1977 Ga. App. LEXIS 1928 (1977). Former Code 1933, § 3-805 (see now O.C.G.A. § 9-3-94) related to causes of action when personal service or its legal substitute was required, and had no reference to, nor did it repeal, the plain provisions of former Code 1933, § 1101001 (see now O.C.G.A. § 9-12-60) in respect to dormant judgments. Crawford v. Boyd, 62 Ga. App. 885, 10 S.E.2d 144, 1940 Ga. App. LEXIS 462 (1940). Absence of defendant in fi. fa. from state does not prevent the plaintiff in fi. fa., or transferee, from keeping judgment in life as provided by law, nor does it prevent the plaintiff from reviving execution. Stanley v. Stanley, 141 Ga. App. 411, 233 S.E.2d 454, 1977 Ga. App. LEXIS 1928 (1977). Temporary return does not revive statute. - If debtor has removed from this state, the debtor cannot revive statute by temporary return for a season. Whitman v. McClure, 51 Ga. 590, 1874 Ga. LEXIS 204 (1874). Property ownership irrelevant. - Fact that the defendant owned property within state during period of nonresidence does not operate to prevent tolling of statute. Kimball v. Kimball, 35 Ga. App. 462, 133 S.E. 295, 1926 Ga. App. LEXIS 911 (1926). Removal to another state of principal on note, after its execution, will suspend statute of limitation as to the principal, but not as to sureties thereon. Langston v. Aderhold, 60 Ga. 376, 1878 Ga. LEXIS 475 (1878). When note was made by nonresident outside limits of this state, and such maker subsequently removed here, period of nonresidence will not be excluded in computing time necessary to bar action upon such instrument. Howell v. Burnett, 11 Ga. 303, 1852 Ga. LEXIS 44 (1852); Moore v. Carroll, 54 Ga. 126, 1875 Ga. LEXIS 96 (1875). Denial of service by publication was error. - In a personal injury suit arising from a motor vehicle accident, the

trial court erred in denying the plaintiff’s motion for service by publication and dismissing the action because the appellate court could not determine which standard the trial court applied in determining due diligence as to service. Humphries v. Weekly, 360 Ga. App. 59, 860 S.E.2d 619, 2021 Ga. App. LEXIS 311 (2021).

Appointment of receiver for foreign corporation does not affect running of statute of limitations. Cain v. Seaboard Air-Line Ry., 138 Ga. 96, 74 S.E. 764, 1912 Ga. LEXIS 209 (1912).

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Limitation of Actions, § 171 et seq. C.J.S. 54 C.J.S., Limitations of Actions, § 147 et seq. ALR. Provision in statute of limitations as to absence from state as applied to a nonresident individual who has an office or place of business in the state, 61 A.L.R. 391. Provision suspending limitations while defendant is a nonresident or without the state as affected by nonresidence of party asserting cause of action, 83 A.L.R. 271. Nonresidence or absence of defendant from state as suspending or tolling statute of limitations, where relief is sought, or could have been sought, by an action or proceeding in rem or quasi in rem, 119 A.L.R. 331. Withdrawal of foreign corporation from state as tolling statute of limitations as to action against corporation, 133 A.L.R. 774. Provision of statute of limitation excluding period of absence of debtor or defen-

dant from state as applicable to action on liability or cause of action accruing out of state, 148 A.L.R. 732. Right to enter judgment by confession as affecting suspension of statute of limitations during absence of debtor from state, 172 A.L.R. 997. Provision of statute of limitations excluding period of defendant’s absence from the state as applicable to a local cause of action against individual who was a nonresident when the same arose, 17 A.L.R.2d 502. Absence of judgment debtor from state as suspending or tolling running of period of limitations as to judgment, 27 A.L.R.2d 839. Tolling of statute of limitations during absence from state as affected by fact that party claiming benefit of limitations remained subject to service during absence or nonresidence, 55 A.L.R.3d 1158. What constitutes “fleeing from justice” within meaning of 18 USCA § 3290 which provides that no statute of limitations shall extend to persons fleeing from justice, 148 A.L.R. Fed. 573.