2020 Georgia Code
Title 9 - Civil Practice
Chapter 4 - Declaratory Judgments
§ 9-4-5. (For Effective Date, See note.) Filing and Service; Time of Trial; Drawing of Jury
A proceeding instituted under this chapter shall be filed and served as are other cases in the superior courts of this state or in the Georgia State-wide Business Court; provided, however, that a proceeding instituted in the probate court pursuant to paragraph (1) of subsection (a) of Code Section 15-9-127 shall be filed and served in the manner provided for proceedings in the probate courts of this state in Chapter 11 of Title 53. A proceeding instituted under this chapter may be tried at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. If there is an issue of fact that requires a submission to a jury, the jury may be drawn, summoned, and sworn either in regular term or specially for the pending case.
(Ga. L. 1945, p. 137, § 4; Ga. L. 2019, p. 845, § 3-2/HB 239; Ga. L. 2020, p. 377, § 2-5/HB 865.)
Law reviews.- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019).
JUDICIAL DECISIONS
Jurisdiction same as in other cases.
- There is no special statute with respect to the jurisdiction of cases seeking to obtain declaratory judgments, but such proceedings shall be filed and served as in other cases in the superior courts. Maryland Cas. Co. v. City of Adel, 87 Ga. App. 138, 73 S.E.2d 237 (1952).
Effect of certification of premature orders.
- When the hearing on a declaratory judgment issue was conducted less than 20 days after service of the plaintiff's petitions, the trial court was without authority to make a ruling on the issue and the court's certification of its orders pursuant to O.C.G.A. § 9-11-54(b) did not make valid the premature orders. Robert W. Woodruff Arts Ctr., Inc. v. Insardi, 266 Ga. 248, 466 S.E.2d 214 (1996).
Written agreement not necessary where trial more than 20 days after service.
- Provision of this section which refers to a written agreement, which is required if the proceeding is to be tried earlier than 20 days after service, is not applicable when the proceeding was tried more than 20 days after service. Ison v. Travis, 212 Ga. 335, 92 S.E.2d 518 (1956).
Premature trial.
- When the owners of an alleged servient estate filed an action in superior court for a declaratory judgment, it was error, under O.C.G.A. § 9-4-5, for the superior court to try the matter less than 20 days after service of process in that matter on the defendants' holders allegation of an alleged easement over the subject property, despite the fact that the holders had previously filed an action regarding the same subject matter in probate court. Morris v. Mullis, 264 Ga. App. 428, 590 S.E.2d 823 (2003).
Right to a jury trial in a declaratory judgment action arises only if there is an issue of fact which requires submission to a jury and a jury trial has not been waived. Aponte v. City of Columbus, 246 Ga. App. 646, 540 S.E.2d 617 (2000).
When the owners of an alleged servient estate filed an action in superior court for a declaratory judgment, no jury trial was required, under O.C.G.A. § 9-4-5, despite the demand of the defendants, holders of an alleged easement, because no factual issues requiring submission to a jury were identified. Morris v. Mullis, 264 Ga. App. 428, 590 S.E.2d 823 (2003).
Cited in Shippen v. Folsom, 200 Ga. 58, 35 S.E.2d 915 (1945); Edwards v. Dowdy, 85 Ga. App. 876, 70 S.E.2d 608 (1952); State v. Hospital Auth., 213 Ga. 894, 102 S.E.2d 543 (1958); Hardeman v. Southern Homes Ins. Co., 111 Ga. App. 638, 142 S.E.2d 452 (1965); Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977); Skalar/Seamark, Inc. v. Skalar USA, Inc., 198 Ga. App. 401, 401 S.E.2d 595 (1991); Adams v. City of Ila, 221 Ga. App. 372, 471 S.E.2d 310 (1996); Macko v. City of Lawrenceville, 231 Ga. App. 671, 499 S.E.2d 707 (1998), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146, 661 S.E.2d 195 (2008); Vaughters v. Outlaw, 293 Ga. App. 620, 668 S.E.2d 13 (2008); In re Estate of Burkhalter, 354 Ga. App. 231, 840 S.E.2d 614 (2020).
RESEARCH REFERENCES
Am. Jur. 2d.
- 22 Am. Jur. 2d, Declaratory Judgments, § 70 et seq.
C.J.S.- 26 C.J.S., Declaratory Judgments, §§ 136 et seq., 152.
ALR.
- Declaration of rights or declaratory judgments, 12 A.L.R. 52; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205; 114 A.L.R. 1361; 142 A.L.R. 8.
Right to jury trial in action for declaratory relief in state court, 33 A.L.R.4th 146.
