2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 3 - Pleadings and Motions
§ 9-11-7. Pleadings Allowed; Form of Motions
- Pleadings. There shall be a complaint and an answer; a third-party complaint, if a person who is not an original party is summoned under Code Section 9-11-14; and a third-party answer, if a third-party complaint is served. There may be a reply to a counterclaim denominated as such and an answer to a cross-claim, if the answer contains a cross-claim. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
- Motions and other papers.
- An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
- The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by this chapter.
- Demurrers, pleas, etc., abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.
(Ga. L. 1966, p. 609, § 7; Ga. L. 1967, p. 226, § 7.)Law reviews.
- For article discussing counterclaims and crossclaims under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 205 (1967). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For note, "Default Judgments Under the Federal Rules of Civil Procedure and the Georgia Civil Practice Act," see 7 Ga. St. B.J. 385 (1971).JUDICIAL DECISIONS
- General Consideration
- Motions and Other Papers
- Abolishment of Demurrers, etc.
Cited in Zappa v. Allstate Ins. Co., 118 Ga. App. 235, 162 S.E.2d 911 (1968); Travelers Ins. Co. v. Johnson, 118 Ga. App. 616, 164 S.E.2d 926 (1968); Georgia R.R. & Banking Co. v. Frazer, 118 Ga. App. 810, 165 S.E.2d 607 (1968); Hall v. Rogers, 225 Ga. 57, 165 S.E.2d 829 (1969); GMAC v. Jackson, 119 Ga. App. 221, 116 S.E.2d 739 (1969); Addis v. First Kingston Corp., 225 Ga. 231, 167 S.E.2d 656 (1969); DeFee v. Kaley, 119 Ga. App. 538, 167 S.E.2d 758 (1969); Insurance Co. of N. Am. v. Dimaio, 120 Ga. App. 214, 170 S.E.2d 258 (1969); Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969); Southern Concrete Co. v. Carter Constr. Co., 121 Ga. App. 573, 174 S.E.2d 447 (1970); Goodman v. Kenney, 124 Ga. App. 709, 185 S.E.2d 632 (1971); Boardman v. Georgia R.R. Bank & Trust Co., 127 Ga. App. 63, 192 S.E.2d 390 (1972); Roberts v. Framer, 127 Ga. App. 237, 193 S.E.2d 216 (1972); Hancock v. Nashville Inv. Co., 128 Ga. App. 58, 195 S.E.2d 674 (1973); Humble Oil & Ref. Co. v. Fulcher, 128 Ga. App. 606, 197 S.E.2d 416 (1973); Loukes v. McCoy, 129 Ga. App. 167, 199 S.E.2d 125 (1973); A & D Barrel & Drum Co. v. Fuqua, 132 Ga. App. 827, 132 S.E.2d 272 (1974); Easterling v. Easterling, 231 Ga. 889, 204 S.E.2d 610 (1974); Irby v. Christian, 132 Ga. App. 796, 209 S.E.2d 245 (1974); Ogden Equip. Co. v. Talmadge Farms, Inc., 132 Ga. App. 834, 209 S.E.2d 260 (1974); Hayes v. Superior Leasing Corp., 136 Ga. App. 98, 220 S.E.2d 86 (1975); Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (1977); Goforth v. Fogarty Van Lines, 143 Ga. App. 432, 238 S.E.2d 768 (1977); Prudential Timber & Farm Co. v. Collins, 144 Ga. App. 849, 243 S.E.2d 80 (1978); Hasty v. Randall, 152 Ga. App. 365, 262 S.E.2d 626 (1979); Jackson v. Bekele, 152 Ga. App. 417, 263 S.E.2d 225 (1979); Brown v. Quarles, 154 Ga. App. 350, 268 S.E.2d 403 (1980); Gaul v. Kennedy, 246 Ga. 290, 271 S.E.2d 196 (1980); Alex v. Parkway-Boulevard Corp., 157 Ga. App. 269, 277 S.E.2d 276 (1981); Hendricks v. Hubert, 158 Ga. App. 371, 280 S.E.2d 396 (1981); Gosnell v. Waldrip, 158 Ga. App. 685, 282 S.E.2d 168 (1981); Davidson v. Walsh, 158 Ga. App. 845, 282 S.E.2d 366 (1981); Smith v. Mack, 161 Ga. App. 95, 289 S.E.2d 299 (1982); McCrary v. Poythress, 638 F.2d 1308 (5th Cir. 1981); Marsh v. Way, 255 Ga. 284, 336 S.E.2d 795 (1985); McKay v. Nally, 173 Ga. App. 372, 326 S.E.2d 560 (1985); Pettus v. Smith, 174 Ga. App. 587, 330 S.E.2d 735 (1985); Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985); Mack v. Smith, 178 Ga. App. 652, 344 S.E.2d 474 (1986); King v. Plummer, 196 Ga. App. 711, 397 S.E.2d 5 (1990); Watkins v. M & M Clays, Inc., 199 Ga. App. 54, 404 S.E.2d 141 (1991); Cain v. Moore, 207 Ga. App. 726, 429 S.E.2d 135 (1993); Zohoury v. Zohouri, 218 Ga. App. 748, 463 S.E.2d 141 (1995); M & M Mobile Homes of Ga., Inc. v. Haralson, 233 Ga. App. 749, 505 S.E.2d 249 (1998); Brandon v. Newman, 243 Ga. App. 183, 532 S.E.2d 743 (2000); Fox v. City of Cumming, 289 Ga. App. 803, 658 S.E.2d 408 (2008); Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 670 S.E.2d 818 (2008); Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165 (2009); Clayton County v. Austin-Powell, 321 Ga. App. 12, 740 S.E.2d 831 (2013), overruled on other grounds, Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015).
Response to defense raised in answer.
- Plaintiff is not required to plead estoppel by replication to defeat the defense raised by the defendant in an answer. Harris v. First Nat'l Bank, 163 Ga. App. 49, 292 S.E.2d 725 (1982).
No responsive pleadings are required to an amendment. Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4, 172 S.E.2d 612 (1970).Answer to amended complaint not required.
- Construing the pertinent provisions of O.C.G.A. §§ 9-11-7,9-11-8,9-11-12,9-11-15, and9-11-21 in pari materia, it is clear that the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, authorizes the addition of parties, by order of the court, and that an "amended complaint" effecting such an addition does not require a responsive pleading, unless the trial court orders a reply thereto. Chan v. W-East Trading Corp., 199 Ga. App. 76, 403 S.E.2d 840 (1991); Hamelberg v. National Ass'n of Gov't Employees, 221 Ga. App. 337, 471 S.E.2d 283 (1996); Random Access, Inc. v. Atlanta Datacom, Inc., 232 Ga. App. 269, 501 S.E.2d 610 (1998).Amendment of admissions not a pleading.
- Response to requests for admission is not a pleading as pleadings are defined as seven specific filings, including a complaint and an answer and case law distinguishes an amendment of a complaint from the withdrawal or amendment of admissions, which are governed by different statutory procedures and schemes. Brougham Casket & Vault Co., LLC v. DeLoach, 323 Ga. App. 701, 747 S.E.2d 707 (2013).
Deposition allowed after case is already in default is not generally considered a pleading. Hazzard v. Phillips, 249 Ga. 24, 287 S.E.2d 191 (1982).Motions and Other Papers
Unreported calendar call does not constitute a "hearing or trial" in which oral motions to strike or dismiss can be received and considered. Woods v. State, 243 Ga. App. 195, 532 S.E.2d 747 (2000).Application for contempt is a motion.
- Since an application for contempt does not come within the definition of a pleading, it is necessarily a motion as defined in subsection (b) of this section. Hines v. Hines, 237 Ga. 755, 229 S.E.2d 744 (1976); Fields v. Fields, 240 Ga. 173, 240 S.E.2d 58 (1977).
Contempt action to enforce court-ordered child support payments is an independent proceeding that is ancillary to the divorce action and is not a new civil action requiring 30-days notice of hearing. Brown v. King, 266 Ga. 890, 472 S.E.2d 65 (1996).
Application for contempt was motion as defined in O.C.G.A. § 9-11-7(b) and was not a pleading. Black v. Mealor, 268 Ga. App. 612, 602 S.E.2d 325 (2004).
Appellate court could not address the merits of the defendant's enumerations of errors as the power company did not properly invoke the jurisdiction of the trial court when the company attempted to initiate a new civil action by filing a contempt proceeding because an action for contempt was ancillary to the primary action and, as such, was not a pleading but a motion; thus, it was improper for the power company to initiate a new civil action to enforce contempt of an order from a prior case, and the trial court was without jurisdiction to consider the power company's improperly filed contempt proceeding. Cowart v. Georgia Power Company, 354 Ga. App. 748, 841 S.E.2d 426 (2020).
Probate court contempt motion under O.C.G.A. § 9-11-7(b) was not subject to the requirement of O.C.G.A. § 9-11-52 for a probate court to make findings of fact; and, even if it was, the ousted executor did not request such findings in advance of the hearing. Black v. Mealor, 268 Ga. App. 612, 602 S.E.2d 325 (2004).
Application for order for preliminary hearing may be made by motion. Howland v. Weeks, 133 Ga. App. 843, 212 S.E.2d 487 (1975).Findings and conclusions not required for motions.
- Provisions of Ga. L. 1970, p. 170, § 1 (see now O.C.G.A. § 9-11-52) which require findings of fact and conclusions of law by the trial court are not applicable to motions. Hines v. Hines, 237 Ga. 755, 229 S.E.2d 744 (1976); Fields v. Fields, 240 Ga. 173, 240 S.E.2d 58 (1977); Lupo v. Long, 145 Ga. App. 876, 245 S.E.2d 73 (1978).
Motion for summary judgment may be made orally at hearing for temporary relief. Royston v. Royston, 236 Ga. 648, 225 S.E.2d 41 (1976).Oral motion may not raise insufficiency of process or service.
- Defense of insufficiency of process or service does not come within the scope of this section allowing oral motions at trial or hearing. Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676, 194 S.E.2d 670 (1972) (see O.C.G.A. § 9-11-7).Motion opposing motion not authorized.
- There is no provision for motion opposing a motion, and a motion to dismiss a motion is unauthorized, though not expressly prohibited, the same purpose being accomplished by opposing the motion; hence, the court did not err in overruling a motion to dismiss the defendants' "motion to quash service, etc." Howland v. Weeks, 133 Ga. App. 843, 212 S.E.2d 487 (1975).Civil action for damages not commenced by contempt application.
- Application for contempt may not, standing alone, serve to commence a civil action for damages as it is not a complaint. Opatut v. Guest Pond Club, Inc., 254 Ga. 258, 327 S.E.2d 487 (1985).
Oral motion to dismiss made during hearing before the answer was filed effectively presents the matter to the trial court. Newport Timber Corp. v. Floyd, 247 Ga. 535, 277 S.E.2d 646 (1981).Effect of default judgment.
- Defendants were not precluded by operation of a default judgment against the defendants from arguing that no claim existed that would allow the plaintiff any recovery. Spears v. Mack & Bernstein, P.C., 227 Ga. App. 743, 490 S.E.2d 463 (1997).Demand for jury trial on damages issue.
- Upon a review of the evidence before the trial court, because neither of an individual's filed documents amounted to a "pleading" which placed damages in issue, neither document was in the nature of a formal answer, and neither actually disputed the amount of damages claimed, the trial court did not err in denying the individual a jury trial on the issue of damages; hence, the appeals court noted that to avoid doubt and confusion in the future, a defendant desiring a jury trial should file an answer specifically contesting damages and a demand for jury trial on the issue of damages, both clearly labeled as such. Diaz v. Wills, 286 Ga. App. 357, 649 S.E.2d 353 (2007).Closure of hearing.
- Motion for closure of a hearing to the public or press must be in writing, be served upon the opposing party, be filed with the clerk of the court, and be posted on the case docket for at least one 24 hour period in advance of the time when the motion will be heard. R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982).Post-verdict oral request converted request for fees in counterclaim to motion.
- In a civil suit involving the title of real property, a trial court erred by denying the prevailing parties' oral post-verdict request for an award of attorney fees under O.C.G.A. § 9-15-14(a) as such oral request converted the original request made in a counterclaim to a motion, and the opposing party had the opportunity to be heard and argue against the award. Nesbit v. Nesbit, 295 Ga. App. 763, 673 S.E.2d 272 (2009).Failure to move to dismiss in custody case.
- Although the defendants argued that the trial court in a custody case erred in failing to dismiss the action based on collateral estoppel, abatement, res judicata, and forum non conveniens, the record did not reflect that the defendants moved to dismiss the action based on these doctrines. Wiepert v. Stover, 298 Ga. App. 683, 680 S.E.2d 707 (2009), overruled on other grounds, Artson, LLC v. Hudson, 322 Ga. App. 859, 747 S.E.2d 68 (2013).Abolishment of Demurrers, etc.
Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) abolished demurrers in civil cases. Bramblett v. State, 239 Ga. 336, 236 S.E.2d 580 (1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 728, 54 L. Ed. 2d 757 (1978).Construal of demurrer as motion to dismiss.
- Court may regard general demurrer for failure to state a cause of action as a motion to dismiss for failure to state a claim for which relief may be granted, and when sufficiency of the complaint is thus questioned, this chapter requires that it be construed in the light most favorable to the plaintiff, with all doubts resolved in the plaintiff's favor even though unfavorable constructions are possible, so that not unless allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed. Ghitter v. Edge, 118 Ga. App. 750, 165 S.E.2d 598 (1968).Attach on venue by motion not precluded.
- Subsection (c) of this section does not prevent an attack on the pleading by motion pointing out alleged insufficiency of venue in the pleading. Williamson v. Perret's Farms, Inc., 128 Ga. App. 687, 197 S.E.2d 754 (1973).
Am. Jur. 2d.
- 59 Am. Jur. 2d, Parties, § 275 et seq. 61A Am. Jur. 2d, Pleading, §§ 31 et seq., 107 et seq., 211 et seq., 373 et seq.
7C Counterclaim, Recoupment, and Setoff, § 3.C.J.S.
- 35A C.J.S., Federal Civil Procedure, §§ 236, 246, 289, 311, 312, 341, 342, 344, 350, 351, 354. 35B C.J.S., Federal Civil Procedure, § 902. 71 C.J.S., Pleading, §§ 3, 98 et seq., 183 et seq., 213.ALR.
- Pleadings containing self-serving declarations as evidence, 1 A.L.R. 39.
Application of doctrine of res judicata to item of single cause of action omitted from issues through ignorance, mistake, or fraud, 2 A.L.R. 534; 142 A.L.R. 905.
Counterclaim or set-off as affecting rule as to part payment of a liquidated and undisputed debt, 4 A.L.R. 474; 53 A.L.R. 768.
Proof of issues in previous action where no pleadings were filed, 10 A.L.R. 1502.
Admissibility of pleadings for purposes other than the establishment of the facts set out therein, 14 A.L.R. 103.
May unconstitutionality of statute be raised by demurrer to pleading, 71 A.L.R. 1194.
Amendment of pleadings after limitation has run by change in capacity in which suit is prosecuted, 74 A.L.R. 1269.
Amendment of pleading after limitation period by substituting new defendant, or changing allegations as to capacity in which defendant is sued or the theory upon which defendant is sought to be held responsible for another's wrong, as stating a new cause of action, 74 A.L.R. 1280.
Necessity and sufficiency of reply to answer pleading of statute of limitations, 115 A.L.R. 755.
Burden of allegation and proof in civil cases as regards exception in statute, 130 A.L.R. 440.
Pleading last clear chance doctrine, 25 A.L.R.2d 254.
Dismissal of state court action for plaintiff 's failure or refusal to obey court order relating to pleadings or parties, 3 A.L.R.5th 237.