O.C.G.A.

O.C.G.A. § 9-4-5 (2019)

Filing and service; time of trial; drawing of jury

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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A proceeding instituted under this chapter shall be filed and served as are other cases in the superior courts of this state or in the Georgia State-wide Business Court; provided, however, that a proceeding instituted in the probate court pursuant to paragraph (1) of subsection (a) of Code Section 15-9-127 shall be filed and served in the manner provided for proceedings in the probate courts of this state in Chapter 11 of Title 53. A proceeding instituted under this chapter may be tried at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. If there is an issue of fact that requires a submission to a jury, the jury may be drawn, summoned, and sworn either in regular term or specially for the pending case.

History

Ga. L. 1945, p. 137, § 4; Ga. L. 2019, p. 845, § 3-2/HB 239; Ga. L. 2020, p. 377, § 2-5/HB 865. The 2020 amendment, effective January 1, 2021, substituted “; provided, however, that a proceeding instituted in the probate court pursuant to paragraph (1) of subsection (a) of Code Section 15-9-127 shall be filed and served in the manner

provided for proceedings in the probate courts of this state in Chapter 11 of Title 53. A proceeding instituted under this chapter” for “and” and substituted “that requires” for “which requires” in the last sentence.

Annotations

Law reviews. For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019).

JUDICIAL DECISIONS Jurisdiction same as in other cases. - There is no special statute with respect to the jurisdiction of cases seeking to obtain declaratory judgments, but such proceedings shall be filed and served as in other cases in the superior courts. Maryland Cas. Co. v. City of Adel, 87 Ga. App. 138, 73 S.E.2d 237, 1952 Ga. App. LEXIS 631 (1952). Effect of certification of premature orders. - When the hearing on a declaratory judgment issue was conducted less than 20 days after service of the plaintiff’s petitions, the trial court was without authority to make a ruling on the issue and the court’s certification of its orders pursuant to O.C.G.A. § 9-11-54(b) did not make valid the premature orders. Robert W. Woodruff Arts Ctr., Inc. v. Insardi, 266 Ga. 248, 466 S.E.2d 214. Written agreement not necessary where trial more than 20 days after service. - Provision of this section which refers to a written agreement, which is required if the proceeding is to be tried earlier than 20 days after service, is not applicable when the proceeding was tried more than 20 days after service. Ison v. Travis, 212 Ga. 335, 92 S.E.2d 518, 1956 Ga. LEXIS 361 (1956). Premature trial. - When the owners of an alleged servient estate filed an action in superior court for a declaratory

judgment, it was error, under O.C.G.A. § 9-4-5, for the superior court to try the matter less than 20 days after service of process in that matter on the defendants’ holders allegation of an alleged easement over the subject property, despite the fact that the holders had previously filed an action regarding the same subject matter in probate court. Morris v. Mullis, 264 Ga. App. 428, 590 S.E.2d 823, 2003 Ga. App. LEXIS 1500 (2003), cert. denied, No. S04C0677, 2004 Ga. LEXIS 306 (Ga. Mar. 29, 2004). Right to a jury trial in a declaratory judgment action arises only if there is an issue of fact which requires submission to a jury and a jury trial has not been waived. Aponte v. City of Columbus, 246 Ga. App. 646, 540 S.E.2d 617, 2000 Ga. App. LEXIS 1215 (2000), cert. denied, No. S01C0380, 2001 Ga. LEXIS 376 (Ga. Apr. 30, 2001). When the owners of an alleged servient estate filed an action in superior court for a declaratory judgment, no jury trial was required, under O.C.G.A. § 9-4-5, despite the demand of the defendants, holders of an alleged easement, because no factual issues requiring submission to a jury were identified. Morris v. Mullis, 264 Ga. App. 428, 590 S.E.2d 823, 2003 Ga. App. LEXIS 1500 (2003), cert. denied, No. S04C0677, 2004 Ga. LEXIS 306 (Ga. Mar. 29, 2004).

RESEARCH REFERENCES Am. Jur. 2d. 22 Am. Jur. 2d, Declaratory Judgments, §§ 180 et seq., 232 et seq. C.J.S. 26 C.J.S., Declaratory Judgments, §§ 129 et seq., 148 et seq. ALR. Declaration of rights or declaratory

judgments, 12 A.L.R. 52; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205; 114 A.L.R. 1361; 142 A.L.R. 8. Right to jury trial in action for declaratory relief in state court, 33 A.L.R.4th 146.

Notes of Decisions

Cited in 18 cases, 1984–2018 · leading case: Morris v. Mullis, 590 S.E.2d 823 (Ga. Ct. App. 2003).

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Morris v. Mullis, 590 S.E.2d 823 (Ga. Ct. App. 2003). · cites it 40× “OCGA § 9-4-5 provides that an action seeking a declaratory judgment "may be tried at any time designated by the court not earlier than 20 days after the service [of the action], unless the parties consent in writing to an earlier trial.”

King v. Baker, 447 S.E.2d 129 (Ga. Ct. App. 1994). · cites it 8× “OCGA §§ 9-4-5; 9-4-6. Moreover, appellants did not insist on the right to a jury trial before the trial court's order was issued after a full hearing.”

Sexual Offender Reg. Review Bd. v. Berzett, 801 S.E.2d 821 (Ga. 2017). · cites it 2× “See OCGA § 9-4-5. In short, although there may be some actual or justiciable controversy between Berzett and the Washington County Sheriff, there is no present controversy whatsoever between Berzett and the Board.”

Aponte v. City of Columbus, 540 S.E.2d 617 (Ga. Ct. App. 2000). · cites it 4× “OCGA §§ 9-4-5; 9-4-6.” 11 Pretermitting whether Aponte waived his demand for trial by jury by failing to reassert it at the hearing, 12 Aponte set forth no disputed facts, either at trial or on appeal, which required submission to a jury.”

Rolleston v. Glynn Cnty. Bd. of Tax Assessors, 491 S.E.2d 812 (Ga. Ct. App. 1998). · cites it 4× “See also OCGA § 9-4-5. Therefore, the trial court erred in finding that it lacked jurisdiction as it had jurisdiction at law to afford the relief prayed for by declaratory judgment.”

MacKo v. City of Lawrenceville, 499 S.E.2d 707 (Ga. Ct. App. 1998). · cites it 2× “See OCGA §§ 9-4-5; 9-4-6; compare Adams, supra at 372-373 (1).”

Vaughters v. Outlaw, 668 S.E.2d 13 (Ga. Ct. App. 2008). · cites it 2× “HomeSide Lending 19 OCGA § 9-4-5 provides that a proceeding instituted under the Declaratory Judgment Act “shall be filed and served as are other cases in the superior courts of this state.”

Ken'S Stereo-Video Junction, Inc. v. Plotner, 560 S.E.2d 708 (Ga. Ct. App. 2002). · cites it 2× “9 See OCGA §§ 9-4-5; 9-4-6. 10 See Mouyal, supra at 465 ; see also Roger Properties v.”

McLeod v. Clements, 684 S.E.2d 671 (Ga. Ct. App. 2009). · cites it 4× “Jerry McLeod was not provided with the statutorily required 20-day notice of hearing per OCGA § 9-4-5. Here, McLeod, pro se, appeals from the order of the trial court dismissing his complaint with prejudice and ordering the award of attorney fees to Stan Clements.”

Robert W. Woodruff Arts Ctr., Inc. v. Insardi, 466 S.E.2d 214 (Ga. 1996). · cites it 4× “” OCGA § 9-4-5. Here, the trial court declared a statute to be unconstitutional as the result of a hearing which was conducted less than 20 days after the service of Insardi’s petitions.”

McLeod v. Clements, 680 S.E.2d 602 (Ga. Ct. App. 2009). · cites it 2× “McLeod first argues that he was not provided with the statutorily required 20-day notice of hearing for a declaratory judgment motion per OCGA § 9-4-5, which provides that an action seeking a declaratory judgment “may be tried at any time designated by the court not earlier than…”

McLeod v. Clements, 712 S.E.2d 627 (Ga. Ct. App. 2011). · cites it 2× “6 On June 25, 2009, in McLeod I, this Court reversed the trial court’s grant of a declaratory judgment to Clements in the First Lawsuit, after finding that the trial court failed to provide the statutorily required 20-day notice of hearing per OCGA § 9-4-5. 7 Nevertheless, while…”

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