2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 1 - Scope of Rules and Form of Action
§ 9-11-1. Scope of Chapter; Construction

This chapter governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Code Section 9-11-81. This chapter shall be construed to secure the just, speedy, and inexpensive determination of every action. This chapter shall also apply to courts which are not courts of record to the extent that no other rule governing a particular practice or procedure of such courts is prescribed by general or local law applicable to such courts.

(Ga. L. 1966, p. 609, § 1.)

- For article advocating specialized pleadings and procedures to meet needs of juvenile court practice, see 23 Mercer L. Rev. 341 (1972). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For article discussing the scope of the "Civil Practice Act," see 19 Ga. St. B.J. 130 (1983). For article surveying trial practice and procedure in 1984-1985, see 37 Mercer L. Rev. 413 (1985). For article, "Business Associations," see 53 Mercer L. Rev. 109 (2001).

ANALYSIS

• General Consideration
• Courts to Which Chapter Applicable

General Consideration

Divorce proceedings.

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) is applicable to divorce proceedings. Price v. Price, 243 Ga. 4, 252 S.E.2d 402 (1979).

- Motions for judgment on the pleadings and for summary judgment are functionless and inappropriate in superior court when that court is sitting as an appellate court under authority of the Administrative Procedure Act (see now O.C.G.A. Ch. 13, T. 50). Walker v. Harden, 129 Ga. App. 782, 201 S.E.2d 483 (1973).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) is not applicable to proceedings under the Georgia Administrative Procedure Act (see now O.C.G.A. Ch. 13, T. 50). Georgia State Bd. of Dental Exmrs. v. Daniels, 137 Ga. App. 706, 224 S.E.2d 820 (1976).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) has no application to judicial review of administrative agency decisions under Ga. L. 1964, p. 338, § 20 (see now O.C.G.A. § 50-13-19). Walker v. Harden, 129 Ga. App. 782, 201 S.E.2d 483 (1973); Hewes v. Cooler, 169 Ga. App. 762, 315 S.E.2d 276 (1984).

- Provisions of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) with regard to taking depositions are not applicable to workers' compensation claims unless made so by statute pertaining specifically to workers' compensation claims. National Biscuit Co. v. Martin, 225 Ga. 198, 167 S.E.2d 140 (1969).

O.C.G.A. § 9-11-15(c) has not been incorporated into the Georgia Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq. McLendon v. Advertising That Works, 292 Ga. App. 677, 665 S.E.2d 370 (2008).

Uninsured Motorist Act, O.C.G.A. § 33-7-11(d), which gives insurance companies wide latitude in deciding whether to join a lawsuit against an uninsured motorist and requiring uninsured motorist carriers to follow the same rules of civil procedure that apply to every other litigant does not limit or impede an insurer's ability under that statutory framework to opt-in or opt-out of litigation. Kelly v. Harris, 329 Ga. App. 752, 766 S.E.2d 146 (2014).

- Habeas court's order denying an inmate's verified petition, which asserted that trial counsel rendered ineffective assistance, was reversed as the allegations contained in that petition served as sufficient evidence to support the inmate's claim that counsel failed to file a notice of appeal after being instructed by the inmate to do so. Rolland v. Martin, 281 Ga. 190, 637 S.E.2d 23 (2006).

- Default judgment against owners in a quiet title action based on the owner's failure to answer was improper because, once the in rem proceeding was instituted, the trial court was required, pursuant to O.C.G.A. § 23-3-63, to submit the matter to a special master, and a special master was never appointed such that service could have properly been completed pursuant to the Quiet Title Act, O.C.G.A. § 23-3-60 et seq.; since the Quiet Title Act provided specific rules of practice and procedure with respect to an in rem quiet title action against all the world, the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, was inapplicable. Woodruff v. Morgan County, 284 Ga. 651, 670 S.E.2d 415 (2008).

- In an in personam forfeiture proceeding, pursuant to the Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-7(m), a trial court erred by finding that the civil procedural rules set forth in the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, were an adequate substitute for the substantive constitutional rights to which the property owners were entitled. As a result, the Supreme Court of Georgia held that § 16-14-7(m) was unconstitutional because the statute deprived in personam forfeiture defendants of the safeguards of criminal procedure guaranteed by the United States and Georgia Constitutions. Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009).

- Scope of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) is procedure in the trial courts of record, and it does not deal with powers of appellate courts. Buckhead Doctors' Bldg., Inc. v. Oxford Fin. Cos., 116 Ga. App. 503, 157 S.E.2d 767 (1967).

- Upon reading the rules within the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, in para materia with Ga. Unif. Super. Ct. R. 24.6(B), the trial court was authorized to grant a divorce well after 30 days from the time an answer would have been due; hence, the trial court did not err in denying a wife's motion to set that judgment aside. Hammack v. Hammack, 281 Ga. 202, 635 S.E.2d 752 (2006).

- "No cure" rule, requiring party to dismiss present action, pay costs in that and all previous actions, and then refile the same action, places an unnecessary burden on trial courts, delays determination of action on its merits, and increases expense to courts and litigants; hence, that rule contravenes the purpose of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) as set out in Ga. L. 1966, p. 609, § 1 (see now O.C.G.A. § 9-11-1) to "secure the just, speedy, and inexpensive determination of every action." McLanahan v. Keith, 239 Ga. 94, 236 S.E.2d 52 (1977), but see Couch v. Wallace, 249 Ga. 568, 292 S.E.2d 405 (1982); Little v. Walker, 250 Ga. 854, 301 S.E.2d 639 (1983).

- Regardless of efficiency of local two-year want of prosecution rule, the General Assembly has set forth a five-year rule for all actions of a civil nature in all courts whose practice and procedure is governed by this chapter, so that for those courts the local two-year rule would be conflicting. Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976).

Appeal from a decision of the policemen's pension board should be taken in accordance with the procedures provided for in statute (Ga. L. 1953 (Nov.-Dec. Sess.), p. 2707). Simmons v. Board of Trustees, 167 Ga. App. 511, 306 S.E.2d 759 (1983).

Requirements of the Condemnation Act override all provisions of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, in conflict with the Condemnation Act's special purposes. DOT v. Defoor, 173 Ga. App. 218, 325 S.E.2d 863 (1984).

- Trial court's failure to consider two timely filed depositions when ruling on a motion for summary judgment was manifestly harmless since there was nothing in the depositions which raised a genuine issue of material fact; thus, to reverse and remand the case under these circumstances would only serve to prolong litigation and undermine the policy in favor of "the just, speedy, and inexpensive determination of every action." Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981).

Court of Appeals will not reverse a grant of summary judgment, even if it appears that the trial court erroneously failed to consider a portion of the record, unless the appellant can show that a genuine issue of material fact remains for trial. Holtzendorf v. Seckinger, 195 Ga. App. 177, 393 S.E.2d 13 (1990).

There is no requirement generally that a party litigant show what deposition would prove before the litigant is allowed to take the deposition. Brown Transp. Corp. v. Truett, 174 Ga. App. 189, 329 S.E.2d 521 (1985).

- Even though it is true that, when the sufficiency of a complaint is questioned, the pleadings must be construed in a light most favorable to a plaintiff, the trial court correctly dismissed the defendant business from the terminated employees' lawsuit for lack of jurisdiction when the pleadings so construed did not demonstrate that the business committed a tort in Georgia. Balmer v. Elan Corp., 261 Ga. App. 543, 583 S.E.2d 131 (2003), aff'd, 278 Ga. 227, 599 S.E.2d 158 (2004).

- Trial court did not err in refusing to dismiss the petitioner's application for a writ of habeas corpus; even assuming that a requirement existed that the district attorney had to be served with a copy of the application, the state failed to timely raise the argument that it applied since it did not set forth the argument either in its answer to the petitioner's application or by motion filed before or simultaneously with the answer, and thus the defense of insufficiency of service was waived. State v. Jaramillo, 279 Ga. 691, 620 S.E.2d 798 (2005).

Cited in Bray v. Central Chevrolet, Inc., 118 Ga. App. 493, 164 S.E.2d 286 (1968); Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968); Bragg v. Bragg, 225 Ga. 494, 170 S.E.2d 29 (1969); Hines v. Wingo, 120 Ga. App. 614, 171 S.E.2d 905 (1969); Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970); Taylor v. Donaldson, 227 Ga. 496, 181 S.E.2d 340 (1971); Gresham v. Symmers, 227 Ga. 616, 182 S.E.2d 764 (1971); Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972); Boyer v. King, 129 Ga. App. 690, 200 S.E.2d 906 (1973); Zachery v. Geiger Fin. Co., 130 Ga. App. 243, 202 S.E.2d 689 (1973); Nat'l Health Servs., Inc. v. Townsend, 130 Ga. App. 700, 204 S.E.2d 299 (1974); Pate v. Milford A. Scott Real Estate Co., 132 Ga. App. 49, 207 S.E.2d 567 (1974); Yeargin v. Burleson, 132 Ga. App. 652, 209 S.E.2d 99 (1974); American Tire Co. v. Creamer, 132 Ga. App. 781, 209 S.E.2d 240 (1974); English v. Milby, 233 Ga. 7, 209 S.E.2d 603 (1974); Sikes v. Sikes, 233 Ga. 97, 209 S.E.2d 641 (1974); Cochran v. McCollum, 233 Ga. 104, 210 S.E.2d 13 (1974); McMichael v. Georgia Power Co., 133 Ga. App. 593, 211 S.E.2d 632 (1974); Coppedge v. Columbus, 134 Ga. App. 5, 213 S.E.2d 144 (1975); Anderson v. Universal C.I.T. Credit Corp., 134 Ga. App. 931, 216 S.E.2d 719 (1975); Jernigan v. Collier, 234 Ga. 837, 218 S.E.2d 556 (1975); Sellers v. Home Furnishing Co., 235 Ga. 831, 222 S.E.2d 34 (1976); Liberty Forest Prods., Inc. v. Interstate Paper Corp., 138 Ga. App. 153, 225 S.E.2d 731 (1976); Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976); C & S Land, Transp. & Dev. Corp. v. Grubbs, 141 Ga. App. 393, 233 S.E.2d 486 (1977); Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556, 236 S.E.2d 532 (1977); Worthen v. Jones, 240 Ga. 388, 240 S.E.2d 842 (1977); Retail Union Health & Welfare Fund v. Seabrum, 240 Ga. 695, 242 S.E.2d 18 (1978); Roe v. Doe, 246 Ga. 138, 268 S.E.2d 901 (1980); Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981); Goodyear v. Trust Co. Bank, 248 Ga. 407, 284 S.E.2d 6 (1981); Evans v. Montgomery Elevator Co., 159 Ga. App. 834, 285 S.E.2d 263 (1981); Financial Bldg. Consultants, Inc. v. American Druggists Ins. Co., 91 F.R.D. 62 (N.D. Ga. 1981); Orr v. Culpepper, 161 Ga. App. 801, 288 S.E.2d 898 (1982); Williams v. Lewis, 163 Ga. App. 729, 296 S.E.2d 81 (1982); Walker v. Little, 164 Ga. App. 423, 296 S.E.2d 636 (1982); Downey v. Downey, 250 Ga. 497, 299 S.E.2d 558 (1983); Hughey v. Emory Univ., 168 Ga. App. 239, 308 S.E.2d 558 (1983); Coates v. Mulji Motor Inn, Inc., 178 Ga. App. 208, 342 S.E.2d 488 (1986); Barone v. McRae & Holloway, 179 Ga. App. 812, 348 S.E.2d 320 (1986); Wheeler's, Inc. v. Wilson, 196 Ga. App. 622, 396 S.E.2d 790 (1990); Ga. Pines Cmty. Serv. Bd. v. Summerlin, 282 Ga. 339, 647 S.E.2d 566 (2007); Preferred Women's Healthcare, LLC v. Sain, 348 Ga. App. 481, 823 S.E.2d 569 (2019), cert. denied, No. S19C0773, 2019 Ga. LEXIS 687 (Ga. 2019).

Courts to Which Chapter Applicable

Legislative authority to enact procedure for particular court.

- Legislature has specific constitutional authority for enacting special rules of procedure applicable only to a particular court. Critz Buick, Inc. v. Aliotta, 145 Ga. App. 805, 245 S.E.2d 56 (1978).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) is a general law of this state and applies to all courts classified as courts of record herein. Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171, 176 S.E.2d 604 (1970).

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), being a general law relating to that classification of courts known as courts of record, must necessarily be controlling over any special law applicable to a particular court of record in a particular locality in conflict therewith. Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171, 176 S.E.2d 604 (1970).

When provision of special Act establishing court of record conflicts with a provision of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), the Civil Practice Act controls. Pittman v. McKinney, 135 Ga. App. 192, 217 S.E.2d 446 (1975).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) applies only to courts specified in this section, as limited by Ga. L. 1967, p. 226, § 33 (see now O.C.G.A. § 9-11-81) and as extended by Ga. L. 1970, p. 679, § 8, relating to state courts of counties. Martin v. Prior Tire Co., 122 Ga. App. 637, 178 S.E.2d 306 (1970).

- Presence of the following characteristics is indicative that a particular court is a court of record: (1) the court has power to fine and imprison; (2) the court exercises the court's functions independently of the person of the magistrate; (3) the court proceeds according to the course of the common law; (4) the court has a seal; and (5) the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the record of the court and are of such high and supereminent authority that their truth is not to be called in question. DeKalb County v. Deason, 221 Ga. 237, 144 S.E.2d 446 (1965), answer conformed to, 113 Ga. App. 555, 149 S.E.2d 155 (1966).

- One essential feature necessary to constitute a court of record is that a permanent record of the proceedings of the court must be made and kept, that is, a precise history of a suit from its commencement to its termination, including conclusions of law thereon drawn by the proper officer for the purpose of perpetuating the exact state of facts. DeKalb County v. Deason, 221 Ga. 237, 144 S.E.2d 446 (1965), answer conformed to, 113 Ga. App. 555, 149 S.E.2d 155 (1966).

- All state courts having concurrent jurisdiction with superior courts to try misdemeanor cases by jury trial or having civil jurisdiction unlimited in amount with superior courts in all matters, with certain exceptions, became subject to rules of practice and procedure applicable to the superior courts as set forth in the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Marler v. C & S Bank, 239 Ga. 342, 236 S.E.2d 590 (1977).

- Probate court is a court of record. Slocumb v. Ross, 119 Ga. App. 567, 168 S.E.2d 208 (1969).

Probate court is a court of record and thus is bound by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Leathers v. Gilland, 141 Ga. App. 681, 234 S.E.2d 336 (1977).

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) generally governs in de novo investigations in superior court on appeal from probate court. McKnight v. Mitchell, 142 Ga. App. 344, 235 S.E.2d 763 (1977).

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), although not in itself applicable to juvenile courts, may be adopted as to procedures not specifically provided for in the Juvenile Code (see now O.C.G.A. Ch. 11, T. 15). In re L.L.W., 141 Ga. App. 32, 232 S.E.2d 378 (1977).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) is not applicable in the juvenile courts unless its rules are adopted by the courts as to procedures not specifically provided for in the Juvenile Court Code (see now O.C.G.A. Ch. 11, T. 15). Crook v. Georgia Dep't of Human Resources, 137 Ga. App. 817, 224 S.E.2d 806 (1976).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) is not per se made applicable to juvenile courts, but its provisions may be adopted by a juvenile court as to procedures for which provision is not specifically made in the Juvenile Code (see now O.C.G.A. Ch. 11, T. 15). Ray v. Department of Human Resources, 155 Ga. App. 81, 270 S.E.2d 303 (1980).

- In making the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) applicable only in courts of record, the General Assembly did not include Civil and Criminal Court of DeKalb County, which court is not required to enroll nor does it enroll for permanent memorial its acts and proceedings. DeKalb County v. Deason, 221 Ga. 237, 144 S.E.2d 446 (1965), answer conformed to, 113 Ga. App. 555, 149 S.E.2d 155 (1966).

- Local rule of the Municipal Court of Columbus (a court of record), which provides that if a party fails to file a demand for a trial by jury on or before 5:00 p.m. on the last business day before docket call, the right to a jury trial is "presumed waived" and the case is set down on the nonjury calendar, is in conflict with O.C.G.A. § 9-11-39, and, to the extent of the conflict, it is void. Raintree Farms, Inc. v. Stripping Ctr., Ltd., 166 Ga. App. 848, 305 S.E.2d 660 (1983).

- Trial court properly refused to dismiss a landowner's appeal on grounds that it failed to express dissatisfaction with the compensation awarded by the special master, as it provided the utility with sufficient notice under the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, that the landowner was objecting to the valuation given on the property; moreover, in light of the interest that the utility acquired in the property, and the purposes for which the utility intended to use that property, consequential damages potentially represented a significant portion of the compensation the landowner could recover. Ga. Power Co. v. Stowers, 282 Ga. App. 695, 639 S.E.2d 605 (2006).

Justice of the peace court is not a court of record, and it is therefore not subject to the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). 1967 Op. Att'y Gen. No. 67-351.

City Court of Albany is a court of record within the meaning of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). 1974 Op. Att'y Gen. No. U74-31.

Neither Professional Practices Commission nor local board of education is a court of record for purposes of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) and, therefore, such commission is without authority to compel a party to proceeding before it to submit to medical examination pursuant to Ga. L. 1972, p. 510, § 8 (see now O.C.G.A. § 9-11-35). 1977 Op. Att'y Gen. No. 77-48.

RESEARCH REFERENCES

Am. Jur. 2d.

- 1 Am. Jur. 2d, Actions, § 20. 32 Am. Jur. 2d, Federal Courts, § 20.

1 Am. Jur. Pleading and Practice Forms, Accord and Satisfaction, § 33.

- 35A C.J.S., Federal Civil Procedure, §§ 10, 16, 17.