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2018 Georgia Code 9-3-97 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 9-3-97 Case Law from Google Scholar Amendments to OCGA 9-3-97

TITLE 9 CIVIL PRACTICE

Section 3. Limitations of Actions, 9-3-1 through 9-3-115.

ARTICLE 5 TOLLING OF LIMITATIONS

9-3-97. Limitations extended for counterclaims and cross-claims.

The limitations of time within which various actions may be commenced and pursued within this state to enforce the rights of the parties are extended, only insofar as the enforcement of rights which may be instituted by way of counterclaim and cross-claim, so as to allow parties, up to and including the last day upon which the answer or other defensive pleadings should have been filed, to commence the prosecution and enforcement of rights by way of counterclaim and cross-claim, provided that the final date allowed by such limitations for the commencement of such actions shall not have expired prior to filing of the main action.

(Ga. L. 1964, p. 165, § 1; Ga. L. 1967, p. 226, § 37.)

Cross references.

- Counterclaims and cross-claims generally, § 9-11-13.

Law reviews.

- For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act," see 3 Ga. St. B.J. 383 (1967).

JUDICIAL DECISIONS

Counterclaim timely filed.

- Counterclaim was timely if filed within the time that a party was obligated to answer the main action as long as the limitations period for the counterclaim had not expired before the main action was filed. When both the main action against a truck driver and the truck driver's third party complaint against an injured person were filed within the two year statute of limitations period, the injured person's personal injury counterclaim against the truck driver was not barred even though it was filed beyond the two year period, and the trial court erred in dismissing the counterclaim. Harpe v. Hall, 266 Ga. App. 340, 596 S.E.2d 666 (2004).

Meaning of "main action."

- Word "main" means most important in size or extent and, by definition, only one "main action" in a case can exist. American Credit Corp. v. United States Cas. Co., 49 F.R.D. 314 (N.D. Ga. 1969).

Counterclaim asserting a violation of the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq., is subject to the limitations period of O.C.G.A. § 9-3-97. Vikowsky v. Savannah Appliance Serv. Corp., 179 Ga. App. 135, 345 S.E.2d 621 (1986).

When plaintiff recommences an action under former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61), the defendant, who previously merely interposed defenses to an original action, may not for the first time seek to affirmatively recover damages by counterclaim, third-party complaint, or cross-claim, when the period provided by the statute of limitation for recovery of such damages has expired. Champion v. Wells, 139 Ga. App. 759, 229 S.E.2d 479 (1976).

Stipulated extension of time to file an answer did not extend the defendant's time for filing a counterclaim. Gibson v. Casto, 233 Ga. App. 403, 504 S.E.2d 705 (1998).

Stipulated extension of time within which to file an answer and defensive pleadings also extends the time to file a compulsory counterclaim which would otherwise be time-barred. Gibson v. Casto, 271 Ga. 667, 523 S.E.2d 564 (1999), disapproving construction of this section as set out in Division 1 of Gibson v. Casto, 233 Ga. App. 403, 504 S.E.2d 705 (1998).

Cited in Gunnells v. Seaboard Airline R.R., 130 Ga. App. 677, 204 S.E.2d 324 (1974); Hodges v. Community Loan & Inv. Corp., 133 Ga. App. 336, 210 S.E.2d 826 (1974); Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981); Equitable Bank v. Brown, 177 Ga. App. 776, 341 S.E.2d 300 (1986).

RESEARCH REFERENCES

Am. Jur. 2d.

- 51 Am. Jur. 2d, Limitation of Actions, §§ 124 et seq., 246.

C.J.S.

- 54 C.J.S., Limitations of Actions, §§ 62, 263, 299, 360.

ALR.

- Right to dismissal of action for delay in prosecution as affected by filing of, or as affecting, cross complaint, counterclaim, intervention, and the like, 90 A.L.R. 387.

Commencement of action as suspending running of limitation against claim which is subject of setoff, counterclaim, or recoupment, 127 A.L.R. 909.

Pleading or attempting to prove by way of setoff, counterclaim, or recoupment, related claim barred by statute of limitations, as waiver of defendant's plea of limitation against plaintiff's claim, 137 A.L.R. 324.

Claim barred by limitation as subject of setoff, counterclaim, recoupment, cross bill, or cross action, 1 A.L.R.2d 630.

Tort claim against which period of statute of limitations has run as subject of setoff, counterclaim, cross bill, or cross action in tort action arising out of same accident or incident, 72 A.L.R.3d 1065.

Cases Citing O.C.G.A. § 9-3-97

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Gibson v. Casto, 523 S.E.2d 564 (Ga. 1999).

Cited 9 times | Published | Supreme Court of Georgia | Nov 15, 1999 | 271 Ga. 667, 99 Fulton County D. Rep. 4104

...im. While reversing the grant of summary judgment to Casto on other grounds, [2] the Court of Appeals upheld the lower court's ruling insofar as it pertained to the statute of limitations on the counterclaim. The Court of Appeals concluded that OCGA § 9-3-97 did not extend the time for filing a counterclaim, despite the stipulation of the parties extending the date to file an answer. Gibson, supra at (1), 504 S.E.2d 705. We granted certiorari to consider whether the Court of Appeals correctly construed OCGA § 9-3-97. OCGA § 9-3-97 extends the limitations period for "the enforcement of rights which may be instituted by way of counterclaim and cross-claim, so as to allow parties, up to and including the last day upon which the answer or other defensive pleadings should...
...730, 48 S.E.2d 86 (1948). The word "should" is commonly defined as a duty or obligation. The duty to file and serve an answer accrues within 30 days of service of the complaint, OCGA § 9-11-12(a), unless otherwise extended under OCGA § 9-11-6(b). OCGA § 9-3-97 ties the period of limitations for a compulsory counterclaim to the time for filing defensive pleadings....
...retion to allow an untimely compulsory counterclaim by amendment. It follows that when the time for filing defensive pleadings is extended, that extension should likewise apply to the mandatory contents of those pleadings. A contrary reading of OCGA § 9-3-97 would result in unreasonable consequences not contemplated by the legislature....
...tion that OCGA § 9-11-6(b), under which the stipulated extension was entered, applies only to extensions of time for acts required under the Civil Practice Act. Previous decisions of our appellate courts are consistent with our construction of OCGA § 9-3-97....
...787(2), 236 S.E.2d 886 (1977), aff'd, Stephens v. Unnever, 240 Ga. 313, 242 S.E.2d 478 (1977), held that the filing of a complaint suspends or tolls the running of the statute of limitations governing the filing of a compulsory counterclaim. Applying this ruling to OCGA § 9-3-97, it follows that a counterclaim is timely if filed with the defensive pleadings, for which an extension was obtained under OCGA § 9-11-6(b). Accord Gunnells v. Seaboard Airline R. Co., 130 Ga.App. 677, 204 S.E.2d 324 (1974) (interpreting OCGA § 9-3-97 to extend the time for filing a counterclaim when extension is granted for filing defensive pleadings due to stayed litigation)....
...253, 203 S.E.2d 301 (1973). Compare also Champion v. Wells, 139 Ga. App. 759, 229 S.E.2d 479 (1976) (counterclaim is untimely when filed after the statute of limitations has run for the main action). Accordingly, we disapprove the construction of OCGA § 9-3-97 as set out in Division 1 of the opinion of the Court of Appeals, but otherwise affirm the judgment below....
...pire before the complaint was filed. I concur in the Court's opinion because this case did indeed involve a compulsory counterclaim. However, I write separately to point out that this same rule also applies where the counterclaim is permissive. OCGA § 9-3-97 does not differentiate between permissive and compulsory counterclaims, and the majority's interpretation of that statute logically applies to both types of counterclaims....