2020 Georgia Code
Title 36 - Local Government
Chapter 11 - Claims Against Counties
§ 36-11-1. Time for Presentation of Claims

Universal Citation: GA Code § 36-11-1 (2020)

All claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.

(Orig. Code 1863, § 479; Code 1868, § 541; Code 1873, § 507; Code 1882, § 507; Civil Code 1895, § 362; Civil Code 1910, § 411; Code 1933, § 23-1602.)

Law reviews.

- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia torts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 247 (1981). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For article, "Claims Against Counties: The Difference a Year Makes," see 36 Mercer L. Rev. 1 (1984). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B. J. 24 (1985). For annual survey on local government law, see 42 Mercer L. Rev. 359 (1990). For annual survey on law of torts, see 42 Mercer L. Rev. 431 (1990). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Specific Claims
  • Presentation of Claims
  • Procedure

General Consideration

Constitutionality.

- This section, providing that "all claims against counties must be presented within 12 months after they accrue or become payable, or the same are barred," is not inconsistent with Ga. Const. 1976, Art. IX, Sec. VI, Para. II (see, now, Ga. Const. 1983, Art. IX, Sec. II, Para. IX). Cobb v. Board of Comm'rs of Rds. & Revenue, 151 Ga. App. 472, 260 S.E.2d 496 (1979).

Purpose of this section is to afford the county an opportunity to investigate the claim and ascertain the evidence, and to avoid the incurrence of unnecessary litigation. Stelling v. Richmond County, 81 Ga. App. 571, 59 S.E.2d 414 (1950).

Rationale behind presentment of claim.

- Object of presenting a claim to a county before the institution of suit is to afford the county an opportunity to investigate the claim and ascertain the evidence, and to avoid the incurrence of unnecessary litigation. Davis v. Cobb County, 65 Ga. App. 533, 15 S.E.2d 814 (1941); Sikes v. Candler County, 247 Ga. 115, 274 S.E.2d 464 (1981).

Comparison with § 36-33-5. - While former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5), providing for the filing of a claim against a municipality before suit against such municipality, is unlike the provisions of former Code 1933, § 23-1602 (see now O.C.G.A. § 36-11-1) relative to the presentment of claims against a county, the objects and purposes of these two statutes are similar. Davis v. Cobb County, 65 Ga. App. 533, 15 S.E.2d 814 (1941).

Construction with O.C.G.A.

§ 33-24-51(b). - Limited waiver of sovereign immunity set forth in O.C.G.A. § 33-24-51(b) does not implicate the 12-month presentation requirement under O.C.G.A. § 36-11-1. Warnell v. Unified Gov't of Athens-Clarke County, 328 Ga. App. 903, 763 S.E.2d 284 (2014).

Substantial compliance with statutory requirements of ante litem notice is sufficient to give notice of a claim to a county. Burton v. DeKalb County, 202 Ga. App. 676, 415 S.E.2d 647, cert. denied, 202 Ga. App. 905, 415 S.E.2d 647 (1992).

Existence of cause of action.

- Under this section, a cause of action against a county such as can be recovered upon does not exist unless the claim has been presented within 12 months after the claim's accrual. Atlantic Coast Line R.R. v. Mitchell County, 36 Ga. App. 47, 135 S.E. 223 (1926).

Principle of common honesty is beside the mark in determining whether the action, whatever be its nature, is subject to the bar of the statute of limitations. Mobley v. Murray County, 178 Ga. 388, 173 S.E. 680 (1934).

Availability of injunction.

- When a nuisance is continuing, the property owner is entitled to seek an injunction, as well as damages for the 12 months preceding, upon giving notice to the county. Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978).

Trial court erred in denying the city's motion for judgment on the pleadings because it was undisputed that the property owner failed to serve either the mayor, or chair of the city council or city commission; thus, the property owner did not comply with the ante litem notice statute, O.C.G.A. § 36-33-5(f), which was fatal to the property's owner claim. City of Albany v. GA HY Imports, LLC, 348 Ga. App. 885, 825 S.E.2d 385 (2019).

Cited in Baggett v. Barrow, 166 Ga. 700, 144 S.E. 251 (1928); Habersham County v. Cornwall, 38 Ga. App. 419, 144 S.E. 55 (1928); Newsome v. Treutlen County, 168 Ga. 764, 149 S.E. 44 (1929); Effingham County v. Zittrouer, 39 Ga. App. 115, 146 S.E. 351 (1929); Felton v. Macon County, 43 Ga. App. 651, 159 S.E. 730 (1931); Morris v. Floyd County, 46 Ga. App. 150, 167 S.E. 127 (1932); MacNeill v. Steele, 186 Ga. 792, 199 S.E. 99 (1938); Habersham County v. Knight, 63 Ga. App. 720, 12 S.E.2d 129 (1940); State Hwy. Dep't v. McClain, 216 Ga. 1, 114 S.E.2d 125 (1960); Lorenz v. DeKalb County, 102 Ga. App. 9, 115 S.E.2d 487 (1960); Richmond County v. Sibert, 218 Ga. 209, 126 S.E.2d 761 (1962); Clayton County v. Sarno, 112 Ga. App. 379, 145 S.E.2d 283 (1965); DeKalb County v. McFarland, 223 Ga. 196, 154 S.E.2d 203 (1967); Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967); Polk County v. Anderson, 116 Ga. App. 546, 158 S.E.2d 315 (1967); Evans County v. McDonald, 133 Ga. App. 955, 213 S.E.2d 82 (1975); Christensen v. Floyd County, 158 Ga. App. 274, 279 S.E.2d 723 (1981); Neely v. Richmond County, 161 Ga. App. 71, 289 S.E.2d 258 (1982); Mullins v. Columbia County, 202 Ga. App. 148, 413 S.E.2d 489 (1991); Clayton County v. City of College Park, 301 Ga. 653, 803 S.E.2d 63 (2017); Dep't of Pub. Safety v. Ragsdale, 308 Ga. 210, 839 S.E.2d 541 (2020).

Specific Claims

When the right to and amount of a claim is fixed by law, such claim does not come within the purview of those claims barred by this section. The claims intended to be barred by this section have reference to claims growing out of contract or breach of duty. Norris v. Nixon, 78 Ga. App. 769, 52 S.E.2d 529 (1949); Owens v. Floyd County, 94 Ga. App. 532, 95 S.E.2d 389 (1956) (see now O.C.G.A. § 36-11-1).

Applicable only to claims arising from contract.

- Requirements of O.C.G.A. § 36-11-1 on presenting claims apply to claims arising from contract and do not apply to a claim when the right to and amount of the claim is fixed by law as when a hospital furnishes emergency services to pregnant indigent residents of the county under O.C.G.A. § 31-8-40 et seq. Terrell County v. Albany/Dougherty Hosp. Auth., 256 Ga. 627, 352 S.E.2d 378 (1987).

Mandamus claim.

- After federal claims were dismissed in a former employee's action against a county employer, the employee's mandamus claims against a county official for reinstatement were not straightforward so as to allow the court to accept jurisdiction of state claims under 28 U.S.C. § 1367 because it was unclear whether ante litem notice was required under O.C.G.A. § 36-11-1 and whether a one-year limitation of O.C.G.A. § 9-3-33 applied to the mandamus claim. Toma v. Columbia County, F. Supp. 2d (S.D. Ga. Apr. 20, 2007).

Affirmative action programs.

- O.C.G.A. § 36-11-1 did not apply to bar plaintiffs' federal and state constitutional claims arising from defendants' operation of a county's minority and female business enterprise program. Webster v. Fulton County, 44 F. Supp. 2d 1359 (N.D. Ga. 1999).

Landowners' claims for nuisance, trespass, negligence, and violation of riparian rights.

- County was entitled to summary judgment on a landowner's claims for nuisance, trespass, negligence, and violation of riparian rights because the county had sovereign immunity as to all claims which did not amount to an inverse condemnation of the land, and the condemnation claim was barred by the landowner's failure to provide proper ante-litem notice pursuant to O.C.G.A. § 36-11-1 within 12 months of when the landowner's claim accrued. Jones v. E.R. Snell Contr., Inc., 333 F. Supp. 2d 1344 (N.D. Ga. 2004).

Applicability of sovereign immunity to action between city and county.

- In a case involving taxation of alcoholic beverages, the city's claims against the county were not barred by sovereign immunity since the city and county were merely exercising their own respective home rule powers by collecting tax revenues for their own purposes, and neither was acting on behalf of the State of Georgia; thus, there was no sovereignty to be maintained. City of College Park v. Clayton County, 306 Ga. 301, 830 S.E.2d 179 (2019).

Suit to hold governmental officer personally liable.

- Plaintiffs were not compelled to notify sheriff of the suit in advance of filing suit against the sheriff because a party seeking a money judgment holding a governmental officer or agent personally liable, albeit for actions in the officer's or agent's official capacity, is a suit against the individual and not the government. Strickland v. Wilson, 205 Ga. App. 91, 421 S.E.2d 94 (1992), cert. denied, 205 Ga. App. 901, 421 S.E.2d 94 (1992).

Actions against school districts.

- In the absence of an expression of legislative intent to apply the statute of limitations to actions against school districts, and in the absence of any specific bar to limit actions against school districts, O.C.G.A. § 36-11-1 does not apply to school districts. Payne v. Blackwell, 259 Ga. 483, 384 S.E.2d 393 (1989).

Salaries of public officers which have been fixed by law do not come within the bar of this statute. Stelling v. Richmond County, 81 Ga. App. 571, 59 S.E.2d 414 (1950).

Salary of commissioner.

- This section is not applicable to allowances for salary of the road commissioner under a local law as the commissioner's salary is an allowance provided by law for the benefit of the commissioner as a public officer, and has no reference to contract or breach of duty. Sammons v. Glascock County, 161 Ga. 893, 131 S.E. 881 (1926).

Tax collector commissions.

- Since the duty of the county authorities to pay the tax collector commissions and the amount of commissions thus payable to the tax collector, as compensation to a public officer, are both fixed and determined by law, it is not incumbent upon the tax collector to present the collector's claim within 12 months in order to prevent it from becoming barred under this section. Bibb County v. Winslett, 191 Ga. 860, 14 S.E.2d 108 (1941).

When bond is given, any action thereon is limited to one year from the completion of the contract and acceptance of the work by proper public authorities. Standard Oil Co. v. Jasper County, 53 Ga. App. 804, 187 S.E. 307 (1936).

Claim of payee of void note.

- Claim against a county by a payee of a void note for money used by the county and paid out on outstanding valid warrants, even if enforceable against the county, was barred since it was not presented within 12 months after accrual. Farmers' Loan & Trust Co. v. Wilcox County, 2 F.2d 465 (5th Cir. 1924).

County warrants.

- County warrants are not such "claims" as are required to be presented within 12 months after the claims accrue or become payable. Jackson Banking Co. v. Gaston, 149 Ga. 31, 99 S.E. 30 (1919); Commercial Trust Co. v. Laurens County, 267 F. 897 (S.D. Ga. 1920); Central of Ga. Ry. v. Wright, 35 Ga. App. 144, 132 S.E. 449 (1926).

Claim to be subrogated to rights of former holders of county warrants paid with money of claimant is one which must be presented within 12 months after accrual. Farmers' Loan & Trust Co. v. Wilcox County, 298 F. 772 (S.D. Ga.), aff'd, 2 F.2d 465 (5th Cir. 1924).

Assertion of ownership of land in possession of county is not such claim as must be presented within 12 months. Lynch v. Harris County, 188 Ga. 651, 4 S.E.2d 573 (1939).

Nuisance.

- When evidence shows that the extent of a nuisance has not increased, so as to amount to the additional taking of property or additional damages to the property owner inside the 12-month period, then any action is barred. However, if the nuisance occurs within or its extent is increased during the 12-month period so as to amount to an additional taking of property belonging to a party, then that portion of the property taken during the 12-month period would be actionable. Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978).

Trial court did not err by failing to allow a property owner to assert the owner's nuisance claim against a county in relation to a second notice sent to the county because at best, the owner would only be allowed to assert a claim for a second time period if the owner could show that the extent of the nuisance had increased, so as to amount to the additional taking of property or additional damages to the property owner in the second 12-month period; the owner did not show that the county's taking increased after the original 12-month period. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).

Trial court did not err by denying a county's motion for directed verdict on the ground that a property owner's ante-litem notice expressly limited the owner's trespass and nuisance claims to personal property damages only because a directed verdict was not demanded when the owner's notice was ambiguous at worst, and a reasonable person could construe the notice to refer to all of the owner's property, personal and real. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).

Continuing nuisance.

- Property owner is not barred from recovering for damages for a continuing nuisance, even when notice is not given within 12 months of completion of construction of the roadway. Reid v. Gwinnett County, 242 Ga. 88, 249 S.E.2d 559 (1978).

When appellee gave sufficient notice under O.C.G.A. § 36-11-1 that county had duty to abate nuisance, and when appellee was thereafter in compliance with § 36-11-1, appellee was entitled to appellee's remedy, regardless of whether or when subsequent injuries occurred on appellee's property as a result of the continuing nuisance. DeKalb County v. Bolick, 249 Ga. 843, 295 S.E.2d 92 (1982).

Bar provided by O.C.G.A. § 36-11-1 is applicable in suits seeking to recover against a county for depreciation in market value of the property taken due to the alleged creation and maintenance of a continuing nuisance. Puckett v. Gwinnett County, 200 Ga. App. 53, 406 S.E.2d 561 (1991).

Taking private property.

- All claims against a county for taking or damaging private property for public uses must be filed within 12 months, and suit thereon for the depreciation in the market value must be instituted within the period of limitations stipulated by the law. It is not the policy of the law to permit the bringing of suits against counties from time to time for damages which might result by reason of negligently constructed public improvements constituting a nuisance. Bibb County v. Green, 42 Ga. App. 552, 156 S.E. 745 (1931); Jones v. Fulton County, 207 Ga. App. 397, 427 S.E.2d 802 (1993).

Ratification of acts of agent.

- Limitation of a claim against a county which is predicated on the ratification of acts of an alleged agent begins to run from the date of the ratification, and the claim is barred after the lapse of 12 months from the ratification. Standard Oil Co. v. Jasper County, 53 Ga. App. 804, 187 S.E. 307 (1936).

Materialman's liens.

- Materialman may bring suit against the county prior to the completion of the work, if the contractor is then insolvent; in such case, the time when the contractor becomes insolvent is the time when the loss results and the county becomes subject to suit. Standard Oil Co. v. Jasper County, 53 Ga. App. 804, 187 S.E. 307 (1936).

Claim against a county, for a loss by a person who furnished material for the building of a road to a contractor who was not required by the county to give bond is barred after the lapse of one year from the date when the contractor became insolvent, and from the date when the materialman's lien against the contractor became due. Standard Oil Co. v. Jasper County, 53 Ga. App. 804, 187 S.E. 307 (1936).

Suits by imprisoned persons.

- While there is no statutorily imposed disability which would prevent an imprisoned person from suing, O.C.G.A. § 9-3-90 provides an imprisoned person the benefit of a statutory provision tolling the statutes of limitation. The result is that a person imprisoned has an option of bringing an action while incarcerated or waiting until the period of incarceration ends. If the latter option is chosen, the period of limitation begins to run from the date of release, i.e., the time the "disability" is removed. Maddox v. Hall County, 162 Ga. App. 371, 291 S.E.2d 442 (1982).

Inmate's cause of action for negligence against county jail officials for giving the inmate another inmate's medication by mistake accrued on the date the inmate became aware of the mistake. Hayes v. Medical Dep't, 197 Ga. App. 563, 398 S.E.2d 837 (1990).

Claim for hospital care for prisoner.

- Board of Regents of the University System of Georgia was required to comply with the ante litem notice requirement with regard to medical bills incurred by a prisoner resulting from a fight in jail since, although O.C.G.A. § 42-5-2(a) provided that a governmental unit having custody of a prisoner must furnish the prisoner with needed hospital attention, there was no law requiring payment by the governmental unit for such services. Board of Regents v. Putnam County, 234 Ga. App. 427, 506 S.E.2d 923 (1998).

Presentation of Claims

Sufficiency of presentation.

- Writing should certainly show who makes the demand, for what reason the demand is made, and the amount thereof. Troup County v. Boddie, 14 Ga. App. 434, 81 S.E. 376 (1914).

Presentation of claim to outside counsel for county satisfies presentment requirement.

- Trial court erred in awarding summary judgment to the county based on the fact that the letter from the plaintiff's attorney was not a proper presentment as the attorney for the county was not employed by the county in house because, to the extent that Coweta County v. Cooper, 318 Ga. App. 41 (2012), indicated that presentment could not properly be made to an outside county attorney, the supreme court disapproved of that decision; thus, notwithstanding that the county attorney was an outside attorney, the timely delivery of the plaintiff's otherwise adequate presentation of a claim against the county to the outside county attorney satisfied the statutory presentment requirement of O.C.G.A. § 36-11-1. Croy v. Whitfield County, 301 Ga. 380, 801 S.E.2d 892 (2017).

Claim barred for failure to serve ante-litem notice.

- Trial court did not err in granting summary judgment to the deputy sheriff on the ground that any claim in the plaintiff's complaint that could be construed as a claim against the sheriff was barred because the plaintiff did not serve an ante-litem notice upon the sheriff; O.C.G.A. § 36-11-1 applied to the counties and to the sheriffs, when sued in their official capacities; and claims against a sheriff were not sustainable without the ante-litem notice. Davis v. Morrison, 344 Ga. App. 527, 810 S.E.2d 649 (2018).

Claim in writing.

- It is essential that the claim required to be filed with a county, as provided in this section, be in writing. Griffin Realty & Constr. Co. v. Chatham County, 47 Ga. App. 545, 171 S.E. 237 (1933).

All claims against counties must be presented in writing. A mere oral statement is insufficient. Williams v. Lowndes County, 120 Ga. App. 429, 170 S.E.2d 750 (1969); Doyal v. DOT, 142 Ga. App. 79, 234 S.E.2d 858 (1977).

Mere conversation not sufficient.

- Conversations with members of board of commissioners looking to a compromise are not sufficient presentment. Powell v. County of Muscogee, 71 Ga. 587 (1883).

Conversations with individual commissioners or verbal proposals to compromise do not circumvent the limitation provided by O.C.G.A. § 36-11-1. Puckett v. Gwinnett County, 200 Ga. App. 53, 406 S.E.2d 561 (1991).

Presentation must be made within 12 months of accrual.

- Claims against a county are required to be presented to the chair of the claims of commissioners within 12 months after the claims accrue. Ellenberg v. DeKalb County (In re Maytag Sales & Serv., Inc.), 23 Bankr. 384 (Bankr. N.D. Ga. 1982).

Although an ante litem notice served by subdivision owners against a county arising out of a drainage system was insufficient under O.C.G.A. § 36-11-1, the owners' complaint complied with § 36-11-1, but the owners' claims for negligence and permanent nuisance were barred by the one-year presentment requirement because the owners had seen standing water more than a year before serving the owners' complaint. Klingensmith v. Long County, 352 Ga. App. 21, 833 S.E.2d 608 (2019).

Bringing of suit within time limit is sufficient presentation of claim. Dement v. DeKalb County, 97 Ga. 733, 25 S.E. 382 (1896); Elbert County v. Brown, 16 Ga. App. 834, 86 S.E. 651 (1915); Mitchell County v. Dixon, 20 Ga. App. 21, 92 S.E. 405 (1917); Taylor v. Richmond County, 57 Ga. App. 586, 196 S.E. 303 (1938).

Service within 12 months.

- Petition must not only be filed but served within 12 months after claim accrues. Pearson v. Newton County, 119 Ga. 863, 47 S.E. 180 (1904); Godfrey v. County of Jefferson, 21 Ga. App. 384, 94 S.E. 604 (1917).

Role of county attorney in presentment.

- Presentment to the county attorney, inside or outside, is presentment for the purposes of O.C.G.A. § 36-11-1. Croy v. Whitfield County, 301 Ga. 380, 801 S.E.2d 892 (2017).

Presentment of a claim against a county under O.C.G.A. § 36-11-1 may be submitted to the governing authority by way of the county attorney as a matter of law. Croy v. Whitfield County, 301 Ga. 380, 801 S.E.2d 892 (2017).

Outside law firm not authorized to receive notice for county.

- Trial court erred by ruling that there was substantial compliance with O.C.G.A. § 36-11-1 by the plaintiffs sending notice of the plaintiff's suit against a county to a private law firm used by the county as outside legal counsel because the firm was not in-house or any department or official of a county and, thus, was not authorized to receive notice. Coweta County v. Cooper, 318 Ga. App. 41, 733 S.E.2d 348 (2012).

Presentment of claim to sheriff.

- Trial court erred in denying the defendants' motion to dismiss on the ground that the plaintiff's claim against the sheriff was barred by the plaintiff's failure to provide the Sheriff's Office with notice of such claim under O.C.G.A. § 36-11-1 because the plaintiff was legally precluded from even naming the county as the proper defendant, and given that § 36-11-1 did not mandate otherwise, the presentment of a claim for which the sheriff can be held vicariously liable must be directed to the sheriff. Moats v. Mendez, 349 Ga. App. 811, 824 S.E.2d 808 (2019).

Twelve-month limit not applicable to claims against school district.

- When the plaintiff failed to give the defendant school district written notice of plaintiff's claim within 12 months after the accrual of plaintiff's cause of action, the trial court properly determined that this failure did not constitute a bar to the action because the claim was against a county school district rather than a county because a claim against a county school district did not constitute a claim against the county within the contemplation of O.C.G.A. § 36-11-1. Payne v. Blackwell, 259 Ga. 483, 384 S.E.2d 393 (1989).

When claim accrues.

- Trial court erred in ruling that a subcontractor's claim against a county accrued on the day the subcontractor received notification about the contractor's cash flow problems when, for three months after the letter was written, the contractor continued to work on the project. Kelly Energy Sys. v. Board of Comm'rs, 196 Ga. App. 519, 396 S.E.2d 498 (1990).

No substitute for presentation.

- When the suit was not brought within 12 months after the accrual of the right of action, it cannot be urged as a substitute for or an equivalent of the presentation of a claim. Newsome v. Treutlen County, 168 Ga. 764, 149 S.E. 44 (1929).

Letter to board of commissioners sufficient.

- Letter sent to the county board of commissioners by a party, a copy of which was sent to the Department of Transportation, did constitute a presentation of the claim being sued on, since the letter contained sufficient information to afford the recipients thereof an opportunity to investigate the claim and ascertain the evidence prior to suit. Sikes v. Candler County, 247 Ga. 115, 274 S.E.2d 464 (1981).

Statement of damages.

- O.C.G.A. § 36-11-1 does not create an inflexible requirement that presentation to county of claim must always contain statement of amount of damages in order to be sufficient. Sikes v. Candler County, 247 Ga. 115, 274 S.E.2d 464 (1981).

Letter met ante litem requirements.

- Landowners substantially complied with statutory ante litem requirements of O.C.G.A. § 36-33-5 when the letter the landowners sent to the city alleging damages from a continuing nuisance the city allegedly maintained on the landowners' property and identifying the nature and location of the damage, the cause, and the nature of the potential cause of action, sufficiently put the city on notice of the problem occurring on their property. City of Columbus v. Barngrover, 250 Ga. App. 589, 552 S.E.2d 536 (2001).

Claim need not be presented while governing authority actually in session.

- This section does not require that a claim against the county be presented at a time when the governing authority or authorities of the county are actually in session, either at a regular or called meeting, for the transaction of county affairs. Davis v. Cobb County, 65 Ga. App. 533, 15 S.E.2d 814 (1941).

Notice to insurer insufficient.

- Formal, written notice to the county is required in presentation of an insurance claim, and notice to the county's liability insurer does not satisfy the statute. Cobb v. Board of Comm'rs of Rds. & Revenue, 151 Ga. App. 472, 260 S.E.2d 496 (1979).

Presentation for auditing.

- Charge by the party presenting a claim need not use the word "audit," but it is sufficient if the party presents it for that purpose, and the ordinary (now judge of the probate court) examines it and refuses to allow it, that is, refuses to audit it and approve it but rejects and disallows it, is not erroneous. County of Cobb v. Adams, 68 Ga. 51 (1881).

Procedure

Defense must be set forth affirmatively.

- It is incumbent on a party pleading to a preceding pleading to set forth affirmatively any statute of limitation as a defense to an action. Failure to do so results in the court's determination that this issue is not raised, even though it may be present and could operate as a bar to recovery. Nipper v. Crisp County, 120 Ga. App. 583, 171 S.E.2d 652 (1969).

Defense under Ga. L. 1971, p. 180, §§ 6, 9 (see now O.C.G.A. § 36-11-1) must be specially pled under Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8(c)). Gordy Constr. Co. v. KHM Dev. Co., 128 Ga. App. 648, 197 S.E.2d 426 (1973).

In the absence of distinct averments of the presentation of valid claims against the county within the time prescribed by the statute, the petition was subject to demurrer (now motion to dismiss). Commissioners of Rds. & Revenue v. Howard, 59 Ga. App. 541, 1 S.E.2d 222 (1939).

Writing must be alleged.

- An allegation that the claim was presented "as provided by law" will not supply the place of a distinct allegation that it was presented in writing. Sparks v. Floyd County, 15 Ga. App. 80, 82 S.E. 583 (1914).

Plaintiff was not dilatory in filing plaintiff's motion to amend to add the county as a new party when the plaintiff filed a negligence suit against a motor company approximately four months after a fatal incident occurred, and moved to add the county for faulty sign-posting approximately two months after filing the original suit. Although O.C.G.A. § 36-11-1 did not require plaintiff to wait for a response from the county after plaintiff notified them of plaintiff's claim, plaintiff's two-month delay in adding the county was not dilatory. Jarriel v. GMC, 835 F. Supp. 639 (N.D. Ga. 1993).

Petition subject to dismissal when petition does not show presentation of claim.

- When it did not appear in the petition in a suit against a county that the claim sued on was presented to the county within 12 months after the claim accrued or became payable, and when it did not appear that the petition was filed and service thereon perfected upon the county within this period, the petition failed to set out a cause of action, and was subject to dismissal. Griffin Realty & Constr. Co. v. Chatham County, 47 Ga. App. 545, 171 S.E. 237 (1933); Commissioners of Rds. & Revenue v. Howard, 59 Ga. App. 541, 1 S.E.2d 222 (1939).

Sufficiency of averment of presentation.

- Statement by plaintiff that plaintiff had in writing demanded compensation from those commissioners, who had refused payment thereof, is sufficient averment of presentation. Adkins v. Crawford County, 135 Ga. 679, 70 S.E. 335 (1911).

Allegation of time.

- Allegations that the claim arose "some time during the year 1910," and that the plaintiff's claim for damages was filed on October 14, 1911, are not sufficient to show presentation within 12 months. Elbert County v. Chapman, 15 Ga. App. 197, 82 S.E. 808 (1914).

An action against a county, brought in 1923, to recover taxes alleged to have been illegally levied and collected in 1919, and alleging that a month before the filing of the suit a demand that the taxes so collected be refunded was made upon the county authorities and refused, was barred. Atlantic Coast Line R.R. v. Mitchell County, 36 Ga. App. 47, 135 S.E. 223 (1926).

Time to submit claim.

- Claim by a hospital for services rendered to a prisoner injured in a fight in jail was untimely when the prisoner was discharged on December 5, 1996, and a claim was not submitted to the defendant county until December 6, 1997; notwithstanding a hospital policy that bills are not due and payable until 30 days after discharge, the 12 month period began to run at the date of discharge. Board of Regents v. Putnam County, 234 Ga. App. 427, 506 S.E.2d 923 (1998).

In a suit against a county after county workers performed work on private property, it was undisputed that no written ante litem notice was provided to the county of any claim in connection with work performed by the county's workers until August 2003, and by this time, any action either contesting or contrary to the terms of a settlement agreement was barred by the statute of limitations. Meadows v. Houston County, 295 Ga. App. 183, 671 S.E.2d 225 (2008).

Under O.C.G.A. § 36-11-1, all claims against counties must be presented within 12 months after the claims accrue or become payable or the claims are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims. Coweta County v. Cooper, 318 Ga. App. 41, 733 S.E.2d 348 (2012).

Trial court did not err by denying a county's motion for summary judgment because an issue of fact existed as to when the parties expected the project to be complete; thus, it followed that there was an issue of fact regarding when, if ever, the county breached the county's agreement to provide water and sewer lines and when the plaintiff's claim of breach of contract accrued and therefore whether the bankruptcy trustee timely filed notice as required by O.C.G.A. § 36-11-1. Effingham County v. Roach, 329 Ga. App. 805, 764 S.E.2d 600 (2014), overruled on other grounds, Rivera v. Washington, 298 Ga. 770, 784 S.E.2d 775 (2016).

Trial court properly granted a county's motion for summary judgment because the record showed that the plaintiffs failed to present notice of the plaintiffs' claim to the county with the 12-month statutory period and admittedly failed to present the county with formal written notice before the plantiffs filed the plaintiffs' suit, which the plaintiffs did not file against the county until more than 22 months after the accident. Warnell v. Unified Gov't of Athens-Clarke County, 328 Ga. App. 903, 763 S.E.2d 284 (2014).

Averment of presentation of note evidencing loan insufficient.

- When a plaintiff seeks to recover money loaned to a county and used by the county, an allegation that the plaintiff presented the notes evidencing the loan is not a sufficient averment of presentation. The notes were illegal. This section contemplates present legal action. Butts County v. Wright, 143 Ga. 253, 84 S.E. 443 (1915).

Garnishment not allowed.

- System provided by law for the payment of claims against counties is to be adopted in all cases. This system cannot be preserved by allowing counties to be garnished. Dotterer v. Bowe, 84 Ga. 769, 11 S.E. 896 (1890).

OPINIONS OF THE ATTORNEY GENERAL

Governing authority subject to general law when remitting or crediting county taxes.

- Governing authority of the county in exercising the county's authority under former Code 1933, §§ 92-3812 and 92-6502 (see now O.C.G.A. § 48-5-241) was subject to the general law set forth in former Code 1933, § 20-1007 (see now O.C.G.A. § 13-1-13), and was also subject to the limitation prescribed in former Code 1933, § 23-1602 (see now O.C.G.A. § 36-11-1). 1958-59 Op. Att'y Gen. p. 379.

RESEARCH REFERENCES

Am. Jur. 2d.

- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 609 et seq.

C.J.S.

- 20 C.J.S., Counties, § 390 et seq.

ALR.

- Power of city, town, or county or its officials to compromise claim, 105 A.L.R. 170; 15 A.L.R.2d 1359.

Waiver of, or estoppel to assert, defects in notice of claim against county or municipality, 148 A.L.R. 637.

Local government tort liability: minority as affecting notice of claim requirement, 58 A.L.R.4th 402.

Sufficiency of notice of claim against local political entity as regards time when accident occurred, 57 A.L.R.5th 689.

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