2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 9 - General Provisions
§ 9-11-81. Applicability

This chapter shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, amendments, counterclaims, cross-claims, third-party practice, joinder of parties and causes, making parties, discovery and depositions, interpleader, intervention, evidence, motions, summary judgment, relief from judgments, and the effect of judgments shall apply to all such proceedings.

(Ga. L. 1966, p. 609, § 81; Ga. L. 1967, p. 226, § 33; Ga. L. 1968, p. 1104, § 12.)

- Special statutory proceeding for review of final action of Department of Banking and Finance, § 7-1-90.

- For provisions of Federal Rules of Civil Procedure, Rule 81, see 28 U.S.C.

- For article, "Synopses of 1968 Amendments Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article discussing inapplicability of provisions of this chapter concerning service of process to personal property foreclosures under § 44-14-230 et seq., see 11 Ga. St. B.J. 230 (1975). For survey article citing 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, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B.J. 98 (1990). For article, "Georgia Law of Alimony," see 4 Ga. St. B.J. 54 (1999).

Special statutory proceedings are preserved under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) to the extent that the statutes prescribe specific rules of practice and procedure in conflict herewith. Gifford v. Courson, 224 Ga. 840, 165 S.E.2d 133 (1968).

Probate court erred in rejecting the step-son's set-aside petition on the basis that the petition did not satisfy O.C.G.A. § 9-11-60(d) as that provision set out the narrow grounds on which a motion to set aside a judgment could be brought under the Civil Practice Act (O.C.G.A. T. 9, Ch. 11), but set-aside petitions in probate proceedings were special statutory proceedings, and the specific rules of practice and procedure for such petitions were set out at O.C.G.A. §§ 53-5-50 and53-5-51; thus, to the extent that those specific rules of practice and procedure conflicted with the Civil Practice Act, pursuant to O.C.G.A. § 9-11-81, the Civil Practice Act did not apply and the probate court's order ruling on the set-aside petition was reversed. In re Estate of Jones, 346 Ga. App. 877, 815 S.E.2d 599 (2018).

- This section makes provision for special statutory proceedings, which are the only exceptions to the practice and procedure prescribed by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) permitted in courts of record. Lee v. G.A.C. Fin. Corp., 130 Ga. App. 44, 202 S.E.2d 221 (1973 (see now O.C.G.A. § 9-11-81)).

- Fact that a trial court is created by a special Act of the General Assembly does not mean that all proceedings in that court are special statutory proceedings. Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976).

- Local practice rules, and even local statutes referring to specific courts, may control the flow of business, the hearing of cases, and other issues, but may not contravene the substantive framework of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Auerback v. Maslia, 142 Ga. App. 184, 235 S.E.2d 594 (1977).

Appeal to superior court from a county tax assessment is a "complaint," as contemplated by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), which is required to be answered by responsive pleading. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556, 236 S.E.2d 532 (1977).

In a gas company's suit against the state revenue commissioner for mandamus compelling the commissioner to accept its property tax returns under O.C.G.A. §§ 48-1-2(21) and48-5-511(a), remand was proper to determine if the company had an acceptable alternative remedy in the company's pending county tax appeals under O.C.G.A. § 48-5-311, as required by O.C.G.A. § 9-6-20, if the commissioner could be made a party to those appeals by joinder or some other procedure. Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657, 755 S.E.2d 683 (2014).

- Fact that special statutory proceedings provide only one remedy, but do not expressly prescribe against others, does not bar application of the Civil Practice Act (see O.C.G.A. Ch. 11, T. 9) as to the other remedies. General Acceptance Corp. v. Bishop, 126 Ga. App. 421, 190 S.E.2d 825 (1972).

- Even though an arbitration award confirmation proceeding is not a civil action, the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, governing discovery applies; thus, limited discovery relating to affirmative defenses to confirmation may be permitted. Hardin Constr. Group, Inc. v. Fuller Enters., Inc., 265 Ga. 770, 462 S.E.2d 130 (1995).

Condemnation is a "special statutory procedure". Nodvin v. Georgia Power Co., 125 Ga. App. 821, 189 S.E.2d 118 (1972).

- Statutes (see now O.C.G.A. §§ 22-2-100 through22-2-114), relating to condemnation proceedings before a special master, are not controlled by the Civil Practice Act (see O.C.G.A. Ch. 11, T. 9), but are a special statutory proceeding. Roberts v. Wise, 140 Ga. App. 1, 230 S.E.2d 320 (1976).

Time for filing of defensive pleadings in a special master condemnation proceeding, as opposed to their sufficiency, is governed by special statutory procedure and when there has been a final adjudication in such proceeding which is designed to be expeditious, a party may not later tender an answer to the petition under the general rules of civil practice. Nodvin v. Georgia Power Co., 125 Ga. App. 821, 189 S.E.2d 118 (1972).

- Provisions of the Civil Practice Act (see O.C.G.A. Ch. 11, T. 9) may be applied if not in conflict with the condemnation act (see O.C.G.A. T. 22 and Ch. 3, T. 32). Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).

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

Trial court properly refused to dismiss a landowner's appeal on grounds that the court failed to express dissatisfaction with the compensation awarded by the special master as the court provided the utility with sufficient notice, under the Civil Practice Act (see O.C.G.A. Ch. 11, T. 9), that the landowner was objecting to the valuation given on the landowner's 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).

In a condemnation case, the trial court did not err in dismissing the property owners' notice of appeal as untimely under O.C.G.A. § 32-3-14, which allowed 30 days from the date of service to appeal; although the affidavits of service were filed more than five business days from the date of service, which would trigger a tolling of the deadline under O.C.G.A. § 9-11-4(h), the civil procedure rule conflicted with the special eminent domain statute and, therefore, did not apply. Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) applies to habeas corpus proceedings insofar as questions arise therein regarding the sufficiency of the pleadings, admissibility of evidence under the petition as drawn, amendments, and other elements of pleading and practice enumerated in this section. Johnson v. Caldwell, 229 Ga. 548, 192 S.E.2d 900 (1972).

Legislature intended, in enacting the 1968 amendment to Ga. L. 1967, p. 226, § 33 (see now O.C.G.A. § 9-11-81), to repeal pro tanto the provisions of Ga. L. 1967, p. 835, § 1 et seq. (see now O.C.G.A. § 9-14-40 et seq.), insofar as they prescribed any different rules governing sufficiency of pleadings, amendments, and what evidence would be admissible in support of a claim of illegal imprisonment, and intended that thereafter the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) should apply. Johnson v. Caldwell, 229 Ga. 548, 192 S.E.2d 900 (1972).

- O.C.G.A. § 9-14-42(c) was not a statute of repose and not an absolute bar to the refiling of a habeas corpus petition and, therefore, was not in conflict with the provisions of O.C.G.A. §§ 9-2-60(b) and (c) and9-11-41(e), which allowed for the renewal of civil actions after dismissal. Therefore, the habeas court's dismissal of a petition as untimely was reversed. Phagan v. State, 287 Ga. 856, 700 S.E.2d 589 (2010).

Divorce proceedings are governed by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9). Ivey v. Ivey, 233 Ga. 45, 209 S.E.2d 590 (1974).

This section provides that the Civil Practice Act (see O.C.G.A. Ch. 11, T. 9) is applicable to all divorce and alimony proceedings with respect to relief from judgments and the effect of judgments in such proceedings. Johnson v. Johnson, 230 Ga. 204, 196 S.E.2d 394 (1973), overruled on other grounds, Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007).

Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) does not apply to juvenile courts. Coleman v. Coleman, 238 Ga. 183, 232 S.E.2d 57 (1977).

Juvenile court properly concluded that the court had no authority to impose attorney fees under O.C.G.A. § 9-15-14 of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) because the juvenile court had not adopted § 9-15-14, and there was no implicit attorney fee award for frivolous litigation in the former Juvenile Court Code; the Civil Practice Act does not apply to juvenile courts. In re T.M.M.L., 313 Ga. App. 638, 722 S.E.2d 386 (2012).

- Provisions of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) governing summary judgment and other named procedures apply to all mandamus proceedings. Harrison v. Weiner, 226 Ga. 93, 172 S.E.2d 840 (1970).

Although proceeding was a special proceeding by way of a writ of mandamus, the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) provides that it is controlling and shall apply to all motions. Hatcher v. Hancock County Comm'rs of Rds. & Revenues, 239 Ga. 229, 236 S.E.2d 577 (1977).

O.C.G.A. § 9-6-27(a) complemented rather than conflicted with O.C.G.A. § 9-11-4(k), which expressly established that the methods of service could have been used as alternative methods of service in special statutory proceedings; a taxpayer's failure to comply with O.C.G.A. § 9-6-27(a) in a case seeking mandamus and injunctive relief against a county was immaterial because the taxpayer served the county in the ordinary manner, and the county's reliance on O.C.G.A. § 9-11-81 was misplaced. Haugen v. Henry County, 277 Ga. 743, 594 S.E.2d 324, cert. denied, 543 U.S. 816, 125 S. Ct. 63, 160 L. Ed. 2d 22 (2004).

- Action seeking a writ of quo warranto is one of the special statutory proceedings referenced in O.C.G.A. § 9-11-81. Anderson v. Flake, 270 Ga. 141, 508 S.E.2d 650 (1998).

- Trover and the defenses against a conditional vendor in a trover action are special statutory proceedings not controlled by the Civil Practice Act (see O.C.G.A. Ch. 11, T. 9). J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719, 168 S.E.2d 847 (1969).

- Since former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51), relating to dispossessory proceedings, did not expressly prescribe that the cumulative service provisions of Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4(i)) were unavailable, Ga. L. 1968, p. 1104, § 12 (see now O.C.G.A. § 9-11-81), providing for exceptions to applicability of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), was inoperable. Navaho Corp. v. Stuckey, 141 Ga. App. 271, 233 S.E.2d 217 (1977).

- Sufficiency of an affidavit seeking a dispossessory warrant must be measured by the same strict rules applicable prior to enactment of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) since the Act does not apply when in conflict with special statutory proceedings. Brinson v. Ingram, 120 Ga. App. 271, 170 S.E.2d 39 (1969).

Dispossessory proceedings under O.C.G.A. Art. 3, Ch. 7, T. 44 do not dispense with the applicability of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) except in certain designated limited circumstances. Trust Co. Bank v. Shaw, 182 Ga. App. 165, 355 S.E.2d 99 (1987).

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) controls in an application to confirm a foreclosure sale and permits the adding of parties to the proceedings. An application should not be dismissed because additional parties are necessary for adjudication but additional parties may be added. Small Bus. Admin. v. Desai, 193 Ga. App. 852, 389 S.E.2d 372, cert. denied, 193 Ga. App. 911, 389 S.E.2d 372 (1989).

- Default judgment against owners in a quiet title action based on the owners' 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).

- Discovery is permitted in a confirmation proceeding on a nonjudicial foreclosure sale because it is a special statutory proceeding and no statute establishes a contrary rule of discovery. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514, 467 S.E.2d 531 (1996).

- While the right of appeal to the superior court from a decision of the probate court is a constitutional right, the method and procedure by which that right is exercised is a "special statutory proceeding" within the meaning of that term as used in this section. Bragg v. Bragg, 225 Ga. 494, 170 S.E.2d 29 (1969).

- Under O.C.G.A. § 9-11-81, the incorporation by reference provision of O.C.G.A. § 9-11-10(c) (form of pleadings), including incorporation of exhibits attached to pleadings, applies to forfeiture proceedings, unless specific, expressly prescribed rules of the forfeiture statute conflict with the incorporation of exhibits provisions. Bell v. State, 234 Ga. App. 693, 507 S.E.2d 535 (1998); Woods v. State, 243 Ga. App. 195, 532 S.E.2d 747 (2000).

O.C.G.A. § 16-13-49 (forfeiture) is a special statutory proceeding which must be strictly construed and complied with, and as such, not all provisions of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) apply, including O.C.G.A. § 9-11-55, the default judgment statute. Fulton v. State, 183 Ga. App. 570, 359 S.E.2d 726 (1987).

Since the claimant contesting the forfeiture of property was authorized to amend the claimant's answer to a forfeiture complaint, the court erred in granting the state's motion to strike the amendment. Jackson v. State, 231 Ga. App. 320, 498 S.E.2d 159 (1998).

Procedures for opening default as a matter of right under O.C.G.A. § 9-11-55(a) are applicable, pursuant to O.C.G.A. § 9-11-81, in forfeiture actions under O.C.G.A. § 16-13-49. Ford v. State, 271 Ga. 162, 516 S.E.2d 778 (1999), reversing Ford v. State, 235 Ga. App. 755, 509 S.E.2d 734 (1998) and overruling State v. Britt Caribe, Ltd., 154 Ga. App. 476, 268 S.E.2d 702 (1980).

- In an election contest under O.C.G.A. § 21-2-522 regarding a race for lieutenant governor, the trial court did not err in limiting discovery of the direct-recording electronic (DRE) voting system machines or in denying the challengers' motion for continuance and jury trial demand. Martin v. Fulton County Bd. of Registration & Elections, 307 Ga. 193, 835 S.E.2d 245 (2019).

- Trial court did not err in granting declaratory relief to an attorney via a default judgment because a petition for declaratory judgment was an action at law pursuant to O.C.G.A. § 9-4-2 and a petition for declaratory judgment was governed by the practice rules contained in the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, specifically O.C.G.A. § 9-11-81, including the rules pertaining to default judgment; the attorney was entitled to a judgment that a doctor was not entitled to attorney fees from the doctor's former spouse under O.C.G.A. § 9-15-14(b) based on the admissions that the former spouse had successfully obtained a family violence protective order against the doctor and that this order was only vacated after the former spouse agreed to voluntarily dismiss the case. Vaughters v. Outlaw, 293 Ga. App. 620, 668 S.E.2d 13 (2008).

Cited in Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968); Dye v. Turner Concrete, Inc., 119 Ga. App. 78, 166 S.E.2d 773 (1969); Shaw v. Davis, 119 Ga. App. 801, 168 S.E.2d 853 (1969); State Farm Mut. Auto. Ins. Co. v. Black, 120 Ga. App. 151, 169 S.E.2d 742 (1969); Brown v. Brown, 121 Ga. App. 88, 172 S.E.2d 875 (1970); Bodrey v. Bodrey, 122 Ga. App. 23, 176 S.E.2d 234 (1970); Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970); Martin v. Prior Tire Co., 122 Ga. App. 637, 178 S.E.2d 306 (1970); Stevens v. Stevens, 227 Ga. 410, 181 S.E.2d 34 (1971); Taylor v. Donaldson, 227 Ga. 496, 181 S.E.2d 340 (1971); Lowe v. Lowe, 123 Ga. App. 525, 181 S.E.2d 715 (1971); Gresham v. Symmers, 227 Ga. 616, 182 S.E.2d 764 (1971); Control Data Corp. v. Carley, 124 Ga. App. 62, 183 S.E.2d 71 (1971); Savannah Bank & Trust Co. v. Keane, 126 Ga. App. 53, 189 S.E.2d 702 (1972); Kinlock v. State Hwy. Dep't, 127 Ga. App. 847, 195 S.E.2d 459 (1973); Snooks v. Factory Square, Inc., 129 Ga. App. 772, 201 S.E.2d 168 (1973); Continental Ins. Co. v. Mercer, 130 Ga. App. 339, 203 S.E.2d 297 (1973); Ben O'Callaghan Co. v. Rose, Silverman & Hunt, 131 Ga. App. 29, 205 S.E.2d 45 (1974); Whitehurst v. Universal C.I.T. Credit Corp., 131 Ga. App. 202, 205 S.E.2d 489 (1974); Carter v. Harrell, 132 Ga. App. 148, 207 S.E.2d 648 (1974); McCreary v. Wright, 132 Ga. App. 500, 208 S.E.2d 373 (1974); Bradberry v. Bradberry, 232 Ga. 651, 208 S.E.2d 469 (1974); Adams v. Citizens & S. Nat'l Bank, 132 Ga. App. 622, 208 S.E.2d 628 (1974); Yeargin v. Burleson, 132 Ga. App. 652, 209 S.E.2d 99 (1974); Ivey v. Ivey, 233 Ga. 45, 209 S.E.2d 590 (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); Georgia State Bd. of Dental Exmrs. v. Daniels, 137 Ga. App. 706, 224 S.E.2d 820 (1976); Coursin v. Harper, 236 Ga. 729, 225 S.E.2d 428 (1976); Burrell v. Wood, 237 Ga. 162, 227 S.E.2d 60 (1976); Heath v. Stinson, 238 Ga. 364, 233 S.E.2d 178 (1977); Tanis v. Tanis, 240 Ga. 718, 242 S.E.2d 71 (1978); Tingle v. Georgia Power Co., 147 Ga. App. 775, 250 S.E.2d 497 (1978); DOT v. Ridley, 244 Ga. 49, 257 S.E.2d 511 (1979); Favors v. Travelers Ins. Co., 244 Ga. App. 203, 258 S.E.2d 554 (1979); Yield, Inc. v. City of Atlanta, 152 Ga. App. 171, 262 S.E.2d 481 (1979); Roe v. Doe, 246 Ga. 138, 268 S.E.2d 901 (1980); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 279 S.E.2d 223 (1981); Carmichael v. Carmichael, 248 Ga. 216, 282 S.E.2d 71 (1981); Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981); Alpha Transp. Serv., Inc. v. Cartwright, 248 Ga. 701, 285 S.E.2d 713 (1982); DOT v. Defoor, 173 Ga. App. 218, 325 S.E.2d 863 (1984); Brooks v. DOT, 254 Ga. 60, 327 S.E.2d 175 (1985); Christopher v. State, 185 Ga. App. 532, 364 S.E.2d 905 (1988); Guthrie v. Bank S., 195 Ga. App. 123, 393 S.E.2d 60 (1990); Greene v. Woodard, 198 Ga. App. 427, 401 S.E.2d 617 (1991); Rice v. Higginbotham, 235 Ga. App. 378, 508 S.E.2d 736 (1998); Nash v. State, 243 Ga. App. 800, 534 S.E.2d 492 (2000); Ga. Pines Cmty. Serv. Bd. v. Summerlin, 282 Ga. 339, 647 S.E.2d 566 (2007); In re Estate of Ehlers, 289 Ga. App. 14, 656 S.E.2d 169 (2007); Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361 (2009); Sherman v. City of Atlanta, 317 Ga. 345, 730 S.E.2d 113 (2013); Kelly v. Harris, 329 Ga. App. 752, 766 S.E.2d 146 (2014); Hildebrand v. City of Warner Robins, 354 Ga. App. 164, 840 S.E.2d 503 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Service requirements for city court governed by Act creating it.

- Requirements for service of summons under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) would not apply to the city court when Act creating the court provides that in cases of $200.00 or less the procedure and practice to be followed shall be governed by the law relating to and governing justice of the peace courts in force at the date of the passage of the Act. 1967 Op. Att'y Gen. No. 67-419.

1 Am. Jur. Pleading and Practice Forms, Accord and Satisfaction, § 8. 2 Am. Jur. Pleading and Practice Forms, Appearance, § 2.

- 35A C.J.S., Federal Civil Procedure, §§ 10, 192.