2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 6 - Trials
§ 9-11-40. Time and Place of Trial

1. Time of trial. All civil cases, including divorce and other domestic relations cases, shall be triable any time after the last day upon which defensive pleadings were required to be filed therein; provided, however, that the court shall in all cases afford to the parties reasonable time for discovery procedures, subsequent to the date that defensive pleadings were required to be filed; provided, further, that, in divorce cases involving service by publication, service shall occur on the date of the first publication of notice following the order for service of publication pursuant to subparagraph (f)(1)(C) of Code Section 9-11-4, and such divorce cases shall be triable any time after 60 days have elapsed since the date of the first publication of notice.
2. Trial in chambers. The judges of any courts of record may, on reasonable notice to the parties, at any time and at chambers in any county in the circuit, hear and determine by interlocutory or final judgment any matter or issue where a jury trial is not required or has been waived. However, nothing in this subsection shall authorize the trial of any divorce case by consent or otherwise until after the last day upon which defensive pleadings were required by law to be filed therein.
3. Assignment of cases for trial. The courts shall provide for the placing of actions upon the trial calendar:
   1. Without request of the parties but upon notice to the parties; or
   2. Upon request of a party and notice to the other parties.

      Except for cause, cases shall be placed upon the calendar in chronological order in accordance with filing dates. Precedence shall be given to actions entitled thereto by any statute.

(Ga. L. 1966, p. 609, § 40; Ga. L. 1967, p. 226, § 41; Ga. L. 1968, p. 1104, § 9; Ga. L. 1976, p. 1677, § 1; Ga. L. 1993, p. 91, § 9; Ga. L. 2000, p. 1225, § 4.)

- Number of counsel who may argue case and be heard in conclusion, § 9-10-182.

Ready list, Uniform Superior Court Rules, Rule 8.2.

Trial calendar, Uniform State Court Rules, Rule 8.3.

- Ga. L. 2000, p. 1225, § 8, not codified by the General Assembly, provides that the amendment to this Code section is applicable to civil actions filed on or after July 1, 2000.

- For provisions of Federal Rules of Civil Procedure, Rule 40, see 28 U.S.C.

- For article, "Synopses of 1968 Amendments to the Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968).

ANALYSIS

• General Consideration
• Time of Trial
• Trial in Chambers
• Assignment of Cases for Trial

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 3-510 and 81-1003 are included in the annotations for this Code section.

- When a complaint fails to state a claim, dismissal of such claim is not error even though the complainant has made a demand for a jury trial, and does not contravene this section. Bush v. Morris, 123 Ga. App. 497, 181 S.E.2d 503 (1971).

- Power of superior courts to determine issues by final judgment at chambers in any county in the judicial circuit when a jury verdict is not required may be exercised only after reasonable notice to the parties. Hinson v. Hinson, 218 Ga. 447, 128 S.E.2d 487 (1962)(decided under former Code 1933, § 3-510).

Trial court abused the court's discretion in denying a motion to set aside a default judgment entered when a builder failed to appear for trial in a breach of contract action; a nonamendable defect was shown on the face of the record, which established that the builder had never received actual notice of the trial as the notice was sent to the wrong address and was returned. Moore v. Davidson, 292 Ga. App. 57, 663 S.E.2d 766 (2008).

- Superior court did not abuse the court's discretion in denying a stepson's motion under O.C.G.A. § 9-11-60(d) to set aside a judgment entered in favor of an administrator based on the claim that the stepson's attorney had no notice of the trial date because the superior court placed the case on the trial calendar upon the stepson's request; therefore, pursuant to O.C.G.A. § 9-11-40(c)(2), the superior court was not required to provide the stepson with notice of the trial date, and the stepson's attorney had a duty to attend court and look after the attorney's and the stepson's interests. Bocker v. Crisp, 313 Ga. App. 585, 722 S.E.2d 186 (2012).

Cited in Tootle v. Player, 225 Ga. 431, 169 S.E.2d 340 (1969); Siefferman v. Kirkpatrick, 121 Ga. App 161, 173 S.E.2d 262 (1970); Newton v. Newton, 226 Ga. 440, 175 S.E.2d 543 (1970); Bodrey v. Bodrey, 122 Ga. App. 23, 176 S.E.2d 234 (1970); Mitchell v. Mitchell, 226 Ga. 678, 177 S.E.2d 89 (1970); Harvey v. Lissner, 124 Ga. App. 448, 184 S.E.2d 184 (1971); Harris v. Harris, 228 Ga. 562, 187 S.E.2d 139 (1972); Touchton v. Stewart, 229 Ga. 303, 190 S.E.2d 912 (1972); Newman v. Greer, 131 Ga. App. 128, 205 S.E.2d 486 (1974); Johnson v. Cleveland, 131 Ga. App. 560, 206 S.E.2d 704 (1974); Bradberry v. Bradberry, 232 Ga. 651, 208 S.E.2d 469 (1974); Gibson v. Gibson, 234 Ga. 528, 216 S.E.2d 824 (1975); Hill v. Hill, 234 Ga. 836, 218 S.E.2d 619 (1975); Riden v. Commercial Credit Plan, 136 Ga. App. 191, 220 S.E.2d 746 (1975); Moss v. Bishop, 235 Ga. 616, 221 S.E.2d 38 (1975); Lawson v. Alvers, 136 Ga. App. 801, 222 S.E.2d 203 (1975); Hopkins v. Donaldson, 137 Ga. App. 786, 224 S.E.2d 788 (1976); Huber v. State, 140 Ga. App. 148, 230 S.E.2d 105 (1976); Cel-Ko Bldrs. & Developers, Inc. v. BX Corp., 140 Ga. App. 501, 231 S.E.2d 361 (1976); Palmes v. Palmes, 236 Ga. 115, 223 S.E.2d 86 (1976); Moody v. Mendenhall, 238 Ga. 689, 234 S.E.2d 905 (1977); Grossman v. Glass, 239 Ga. 319, 236 S.E.2d 657 (1977); Kirk v. Hasty, 239 Ga. 362, 236 S.E.2d 667 (1977); Adair v. Adair, 239 Ga. 494, 238 S.E.2d 46 (1977); Spencer v. Taylor, 144 Ga. App. 641, 242 S.E.2d 308 (1978); Spyropoulos v. Linard Estate, 148 Ga. App. 380, 251 S.E.2d 327 (1978); Kiplinger v. Nature Island, Inc., 149 Ga. App. 103, 253 S.E.2d 569 (1979); Pittman v. United States Shelter Corp., 150 Ga. App. 37, 256 S.E.2d 646 (1979); Hancock v. Oates, 244 Ga. 175, 259 S.E.2d 437 (1979); Jelks v. World of Realty, Inc., 153 Ga. App. 720, 266 S.E.2d 357 (1980); Spyropoulos v. Linard Estate, 154 Ga. App. 200, 267 S.E.2d 796 (1980); Garner v. State, 159 Ga. App. 244, 282 S.E.2d 909 (1981); Havlik v. Tuftcraft, Inc., 162 Ga. App. 180, 290 S.E.2d 524 (1982); Stewart v. Williams, 164 Ga. App. 117, 296 S.E.2d 416 (1982); Williams v. Calloway, 171 Ga. App. 286, 319 S.E.2d 500 (1984); Murray v. Stratford, 181 Ga. App. 592, 353 S.E.2d 85 (1987); Joint City-County Bd. of Tax Assessors v. Turoff, 184 Ga. App. 322, 361 S.E.2d 528 (1987); Collins v. Citizens & S. Trust Co., 258 Ga. 665, 373 S.E.2d 612 (1988); Randall v. Randall, 274 Ga. 107, 549 S.E.2d 384 (2001); Prescott v. Builders Transp., Inc., 251 Ga. App. 280, 554 S.E.2d 241 (2001).

Time of Trial

Consent of parties inconsequential.

- Under subsection (a) of this section, consent of the parties is inconsequential. Bradberry v. Bradberry, 232 Ga. 651, 208 S.E.2d 469 (1974).

- After time for filing defensive pleadings expires, it is not error for permanent child custody hearing to be set by rule nisi less than 30 days later, as the time for trial is set by subsection (a) of Ga. L. 1976, p. 1677, § 1 (see now O.C.G.A. § 9-11-40), not Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56(c)). Brand v. Brand, 244 Ga. App. 124, 259 S.E.2d 133 (1979).

Upon reading the rules within the Civil Practice Act (see 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).

- All that is required by subsection (a) of this section is reasonableness as to the time allowed for discovery. Partain v. Mayor of Royston, 246 Ga. 297, 271 S.E.2d 201 (1980).

- Passage of 13 months after joinder of issue before trial was a sufficient period of time for purposes of discovery to satisfy the reasonableness requirement of subsection (a) of this section. Puritan Fashions Corp. v. Naftel, 138 Ga. App. 479, 226 S.E.2d 305 (1976).

- Trial court has broad discretion concerning the use of and limitations upon discovery procedure, and this discretion will not be disturbed on appeal in absence of abuse of that discretion. Partain v. Mayor of Royston, 246 Ga. 297, 271 S.E.2d 201 (1980).

- Since the defendant had actual knowledge of the pendency of the defendant's case, the publication of the trial calendar in the county's legal organ constituted sufficient notice of the trial date so as to satisfy due process. Carson v. Morris, 164 Ga. App. 732, 297 S.E.2d 513 (1982).

Publication of the calendar of the state court in the official organ of the county is sufficient notice to parties of pending trials in that court. Automated Medical Servs., Inc. v. Holland, 166 Ga. App. 57, 303 S.E.2d 127 (1983).

Denial of motion to set aside a default judgment against a corporation was not an abuse of discretion as the trial was properly noticed by publication of the trial calendar in the county's legal gazette; publication of a court calendar in the county's legal organ of record was sufficient notice to the parties to appear. Migmar, Inc. v. Williams, 281 Ga. App. 870, 637 S.E.2d 471 (2006).

- Trial court lacked the authority to grant any equitable relief other than an accounting without giving notice, after one partner and the management company did not have notice that another partner was seeking, and the trial court was considering, the granting of a dissolution and injunction at the hearing for a pre-dissolution accounting, the trial court also failed to inform the parties that it would resolve requests for other equitable relief and the management company neither consented nor acquiesced to the trial court deciding any issue besides an accounting. Williams v. Tritt, 262 Ga. 173, 415 S.E.2d 285 (1992).

- When the record did not support the defendant's contention that a written request for continuance had been made in that a copy of the motion did not show on the motions's face that the motion was ever filed, and when no oral request had been made, there was no abuse of discretion when the case was set for trial four months after the answer was filed. Surgijet, Inc. v. Hicks, 236 Ga. App. 80, 511 S.E.2d 194 (1999).

Trial in Chambers

Equity cases.

- There is no constitutional right to trial by jury in equity cases. Phillips v. Gladney, 234 Ga. 399, 216 S.E.2d 297 (1975); Duncan v. First Nat'l Bank, 597 F.2d 51 (5th Cir. 1979).

- When no issues of fact are raised, a trial judge is authorized to enter a final judgment after an interlocutory hearing. Consortium Mgt. Co. v. Mutual Am. Corp., 246 Ga. 346, 271 S.E.2d 488 (1980).

When the defendant filed the defensive pleadings which raised no issue of fact on the vital questions in the case, the trial judge was authorized to enter final judgment after hearing evidence presented at an interlocutory hearing. Phillips v. Gladney, 234 Ga. 399, 216 S.E.2d 297 (1975).

- Ex parte hearings are not sanctioned, except in the case of extraordinary matters such as temporary restraining orders and temporary injunctions; in other judicial hearings, both parties should be notified of the hearing and given an opportunity to attend and voice objections. Anderson v. Fulton Nat'l Bank, 146 Ga. App. 155, 245 S.E.2d 860 (1978); Biggs v. Heriot, 249 Ga. App. 461, 549 S.E.2d 131 (2001).

- Action to modify the custody provisions of an earlier divorce decree is not a "divorce case" within the exception provided in subsection (b). Adair v. Adair, 239 Ga. 494, 238 S.E.2d 46 (1977).

Final judgment was prematurely entered at a temporary hearing in a divorce proceeding since 23 days remained during which defensive pleadings would have been required by law to be filed and both parties had filed timely demands for a jury trial. Henderson v. Henderson, 258 Ga. 205, 367 S.E.2d 40 (1988).

Subsection (c) of Ga. L. 1968, p. 1104, § 9 (see now O.C.G.A. § 9-11-40) must be construed in pari materia with Ga. L. 1967, p. 226, § 4 (see now O.C.G.A. § 9-11-5(a)). Newell Rd. Bldrs., Inc. v. Ramirez, 126 Ga. App. 850, 192 S.E.2d 184 (1972).

- While under subsection (c) of this section courts may place cases on the trial calendar on notice to the parties, courts must also do so upon request of a party. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978).

Notice of trial by publication of court calendar is adequate notice pursuant to subsection (c) of this section. First Nat'l Bank v. Gorlin, 243 Ga. 707, 256 S.E.2d 450 (1979).

When timely notice of the trial calendar, with the case style, case number, counsel of record, and pro se status is published in the legal organ of the county, such notice satisfies the notice requirements and is adequate under subsection (c) of O.C.G.A. § 9-11-40. Davis v. Butler, 240 Ga. App. 72, 522 S.E.2d 548 (1999).

- Publication of trial calendar in official county newspaper is notice of trial pursuant to subsection (c) of this section. Brown v. Citizens & S. Nat'l Bank, 245 Ga. 515, 265 S.E.2d 791 (1980); East India Co. v. Marsh & McLennan, Inc., 160 Ga. App. 529, 287 S.E.2d 574 (1981).

Publication of date and time of trial in the official organ of the county constitute sufficient notice under subsection (c) of this section. Kleiner v. Blender, 152 Ga. App. 426, 263 S.E.2d 232 (1979).

Requirements of paragraph (c)(1) are complied with by mailing notice that case will be on the trial calendar on a given date to the attorney for the litigant, when no question is raised that the notice was received in due course of mail. Trice v. Howard, 130 Ga. App. 895, 204 S.E.2d 808 (1974).

Notice of exact day of trial is not required. Redding v. Raines, 239 Ga. 865, 239 S.E.2d 32 (1977).

- Even though the party may not have actual notice, if the requirements for giving notice are complied with, notice provisions of subsection (c) of this section are satisfied. Holbrook v. Halpern Enters., Inc., 141 Ga. App. 648, 234 S.E.2d 187 (1977).

- Giving of notice to attorney who is counsel of record as of time the notice is mailed is sufficient compliance with subsection (c) of this section. Tallman Pools of Ga., Inc. v. Napier, 137 Ga. App. 500, 224 S.E.2d 426 (1976).

- When party's original counsel of record, who withdraws from the case, receives notice of the trial date, the party is on notice as to the date in accordance with this section, despite the fact that the original counsel might not actually inform the party of the notice before withdrawing from representation. McNally v. Stonehenge, Inc., 242 Ga. 258, 248 S.E.2d 653 (1978).

- When the defendant's counsel withdraws from the case and notifies the court, but the only notice of the trial date is sent to the former counsel, who makes no effort to inform the former client, a motion to set aside a subsequently entered default judgment should be granted. Georgia Hwy. Express, Inc. v. Whaley, 166 Ga. App. 662, 305 S.E.2d 411 (1983).

- Parties have a right to rely that notice of trial assignments is given in compliance with court rules and this section. Vaughan v. Car Tapes, Inc., 135 Ga. App. 178, 217 S.E.2d 436 (1975).

Especially in light of the requirements of O.C.G.A. § 9-11-40(c) and Ga. Unif. St. Ct. R. 8.3, regarding the trial calendar and notice to the parties, the defendant was entitled to rely on the trial court's written order specifically setting a trial date for October 22, 2001, and, therefore, the trial court erred in holding a bench trial in the defendant's absence on an earlier date without properly placing the earlier date on the trial calendar or giving proper notice. Smith v. Williams, 256 Ga. App. 664, 569 S.E.2d 598 (2002).

- Trial court may properly take judicial notice of the presumption that the court clerk gave notice as required by law. Trice v. Howard, 130 Ga. App. 895, 204 S.E.2d 808 (1974).

- Defendant is entitled to the defendant's day in court on the main case if in fact the defendant proves the essential requirement of assignment notice has been overlooked or absent. Wilkes v. Ricks, 126 Ga. App. 266, 190 S.E.2d 603 (1972).

Failure to give proper notice of trial to adversary is reversible error. Siano v. Spindel, 136 Ga. App. 288, 220 S.E.2d 718 (1975).

- Lack of trial notice as required by subsection (c) of this section is ground for setting aside the judgment. Redding v. Commonwealth of Am., Inc., 143 Ga. App. 215, 237 S.E.2d 689 (1977).

- When the face of the record shows without contradiction that there was a total lack of notice to the defendant of the trial assignment of the defendant's case, the trial court erred in denying the motion to set aside the judgment. Shelton v. Rodgers, 160 Ga. App. 910, 288 S.E.2d 619 (1982).

Trial of counterclaim, as well as dismissal of the main claim, without proper notice having been given to opposing counsel was error and warranted reversal. Health Images, Inc. v. Green, 207 Ga. App. 455, 428 S.E.2d 378 (1993).

- Trial court must exercise discretion in determining whether under all the circumstances a judgment obtained in the absence of the party or the party's counsel, who contends to having no knowledge of the publication of the calendar or other notice of the calendar, should be set aside. Grindle v. Eubanks, 152 Ga. App. 58, 262 S.E.2d 235 (1979).

Notice of trial by publication of the court calendar in the Fulton County Daily Report is notice pursuant to subsection (c) of Ga. L. 1968, p. 1104, § 9 (see now O.C.G.A. § 9-11-40); however, this does not mean that the trial court is without authority to set aside the judgment or grant a new trial under Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60), if the circumstances warrant such relief. Spyropoulos v. Linard Estate, 243 Ga. 518, 255 S.E.2d 40 (1979).

- When negligence action is set for trial on September 11, and trial calendar for September 11 is published on August 31 in the official organ of the county, properly listing the case, the defendants received adequate notice of the trial date. Martin v. Foxboro Co., 149 Ga. App. 719, 256 S.E.2d 34 (1979).

Defendant's claim that sufficient notice of the trial date was not provided was rejected as the record reflected that a scheduling order was issued by the trial court, the trial date was published on the trial calendar, and the defendant and the defendant's counsel were listed in the notice. It was clear that the defendant was aware of the trial calendar based on an email from the defendant's counsel. Surles v. Cornell Corr. of Cal., Inc., 290 Ga. App. 260, 659 S.E.2d 683 (2008).

It was not error to refuse to set aside judgment for lack of notice under subsection (c) of this section since the court clerk testified that it is not the clerk's practice to fail to mail notice to any attorney, and when the deputy clerk testified the deputy mailed out the court calendar with a cover letter to all counsel, and that the letter had not been returned to the clerk's office undelivered. Belle Interiors, Inc. v. Norman, 130 Ga. App. 669, 204 S.E.2d 364 (1974).

- Trial court erred in denying the motion to set aside the judgment when the record in the case showed that there was a total lack of notice to the defendant of the assignment of the defendant's case to a trial calendar because of a clerical oversight in recognizing the defendant's change of address. Taylor v. Chester, 207 Ga. App. 217, 427 S.E.2d 582 (1993).

By failure to plead, the defendant waived notice of trial on the limited issue of the amount of damages, and there was no requirement to place the case on the trial calendar nor for the plaintiff to comply with the local court rule. Newell Rd. Bldrs., Inc. v. Ramirez, 126 Ga. App. 850, 192 S.E.2d 184 (1972).

- When the trial court places a case on a calendar, with notice to the parties as required by this section, it is ripe for trial, notwithstanding any local rule stating that it could not be placed on a trial calendar without a pretrial. Grindle v. Eubanks, 152 Ga. App. 58, 262 S.E.2d 235 (1979).

- Party or a party's counsel is chargeable with notice that the party's case, when ripe for trial, may be called for trial at any time during a term of court, and even out of its regular order on the docket, in the court's discretion, provided the case is placed on a calendar duly prepared and notice is given of the trial. Grindle v. Eubanks, 152 Ga. App. 58, 262 S.E.2d 235 (1979).

- As it was the express command of former Code 1933, § 6-601 (see now O.C.G.A. § 5-3-30) that appeals of probate proceedings be tried by a jury at the first term after entry of the appeal, it would appear to be the duty of the clerk to place the appeal upon the trial calendar for the first term after docketing; if it cannot be reached at that term, or should the court defer the matter, neither party should be penalized. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978).

No greater duty is placed upon counsel for a party appealing to the superior court to bring a case to trial than is placed upon counsel for the appellee, as while the appellant is the moving party as far as the appeal is concerned, once the appeal and the supporting record is docketed in the superior court, it is entitled to de novo treatment. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978).

- In case appealed from probate court to superior court, when counsel for appellee requests that case be assigned for trial at the earliest available date and serves notice of this request upon counsel for appellant, it would be folly to require the appellant's counsel to also file a similar demand or suffer dismissal of the appellant's case on appeal. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978).

Dismissal in April 1978, of case appealed from probate court to superior court in September 1977, in which appellee had requested trial at the earliest possible date, on grounds that the appellant had taken no action to obtain a trial since entry of the appeal nor shown good cause for delay, was error. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978).

OPINIONS OF THE ATTORNEY GENERAL

Authority of nonresident superior court judge in chambers.

- Former Code 1933, §§ 24-2613 and 24-2617 (see now O.C.G.A. § 15-6-12), when read in light of former Code 1933, § 24-2616 (see now O.C.G.A. § 15-6-9) and subsection (b) of Ga. L. 1968, p. 1104, § 9 (see now O.C.G.A. § 9-11-40) confers authority on nonresident superior court judge in chambers in the judge's own circuit to hear and determine by interlocutory or final judgment, in accordance with subsection (b), any matter in a case from the originating superior court which arises while the originating superior court is in vacation. 1975 Op. Att'y Gen. No. U75-68.

RESEARCH REFERENCES

Am. Jur. 2d.

- 75 Am. Jur. 2d, Trial, §§ 6, 7, 11, 20, 21, 32, 35 et seq., 121, 122. 75B Am. Jur. 2d, Trial, §§ 1622, 1664.

- 35B C.J.S., Federal Civil Procedure, §§ 976, 977. 88 C.J.S., Trial, § 78 et seq.

- What constitutes bringing an action to trial or other activity in case sufficient to avoid dismissal under state statute or court rule requiring such activity within stated time, 32 A.L.R.4th 840.

Pendency of criminal prosecution as ground for continuance or postponement of civil action involving facts or transactions upon which prosecution is predicated - state cases, 37 A.L.R.6th 511.