2021 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 3 - Pleadings and Motions
§ 9-11-13. Counterclaim and Cross-Claim

1. Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought an action upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Code section, or (3) the claim is not within the jurisdiction of the court.
2. Permissive counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. But any such permissive counterclaim shall be separated for the purposes of trial, unless the parties otherwise agree.
3. Counterclaim exceeding opposing claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
4. Counterclaim against the state. This Code section shall not be construed to enlarge beyond the limits fixed by law the right to assert counterclaims or to claim credits against the state or an officer or agency thereof.
5. Counterclaim maturing or acquired after pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.
6. Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.
7. Cross-claim against coparty. A pleading may state as a cross-claim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
8. Additional parties may be brought in. When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained.
9. Separate trials; separate judgments. If the court orders separate trials as provided in subsection (b) of Code Section 9-11-42, judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of subsection (b) of Code Section 9-11-54 when the court has jurisdiction to do so, even if the claims of the opposing party have been dismissed or otherwise disposed of.

(Ga. L. 1966, p. 609, § 13.)

- Time limitations on commencement of prosecution and enforcement of rights by way of counterclaim and cross-claim, § 9-3-97.

Form for setting forth counterclaim or cross-claim in conjunction with setting forth of defenses under § 9-11-12(b), § 9-11-120.

- For provisions of Federal Rules of Civil Procedure, Rule 13, see 28 U.S.C.

- For article discussing counterclaims and crossclaims under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 205 (1967). For article, "Current Problems with Venue in Georgia," see 12 Ga. St. B.J. 71 (1975). For article surveying 1981-1982 Eleventh Circuit cases involving civil practice and procedure, see 34 Mercer L. Rev. 1363 (1983). For article, "Compulsory Cross-Claims?," see 5 Ga. St. B.J. 48 (1999). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986).

ANALYSIS

• General Consideration
• Counterclaims
• Cross-Claims
• Additional Parties
• Separate Trials and Judgments

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Counterclaim, Recoupment, and Setoff, § 1 et seq. 44B Am. Jur. 2d, Interpleader, § 6. 59 Am. Jur. 2d, Parties, § 236 et seq. 61A Am. Jur. 2d, Pleading, § 355 et seq. 75 Am. Jur. 2d, Trial, §§ 60, 62.

- 35A C.J.S., Federal Civil Procedure, § 357 et seq. 67A C.J.S., Parties, § 131 et seq. 71 C.J.S., Pleading, § 199 et seq. 80 C.J.S., Set-off and Counterclaim, §§ 9, 10, 26 et seq.

- 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.

Availability as set-off or counterclaim of claim in favor of one alone of several defendants, 10 A.L.R. 1252; 81 A.L.R. 781.

Plea of pendency of former action as affecting right of pleader to avail himself of objections to the former action, 32 A.L.R. 1339.

Setting up counterclaim, set-off, or recoupment in reply, 42 A.L.R. 564.

Right of defendant in action for injury to person or property to set up by cross-complaint claim for injury to his person or property against co-defendant, 43 A.L.R. 879.

Judgment as a contract within statute in relation to setoff or counterclaim, 55 A.L.R. 469.

May or must claim for damages from wrongful seizure of property be interposed in action or proceeding in which such seizure is made, 85 A.L.R. 644.

Necessity of process against plaintiff when cross bill or answer in nature of cross bill comes in, 96 A.L.R. 990.

Right to enjoin prosecution of action in court of limited jurisdiction because of counter rights or claims in behalf of defendant which are beyond such limited jurisdiction, 125 A.L.R. 337.

Pleading or attempting to prove by way of setoff, counterclaim, or recoupment, related claim barred by statute of limitations, as waiver of defendant's plea of limitation against plaintiff's claim, 137 A.L.R. 324.

Statutory right of setoff or counterclaim as affected by defendant's conduct inducing delay in bringing action until after maturity of the claim, or assignment to defendant of the claim, against plaintiff, 137 A.L.R. 1180.

Setoff, counterclaim, and recoupment in replevin or other action for possession of personal property, 151 A.L.R. 519.

Claim barred by limitation as subject of setoff, counterclaim, recoupment, cross bill, or cross action, 1 A.L.R.2d 630.

Claim for wrongful death as subject of counterclaim or cross action in negligence action against decedent's estate, and vice versa, 6 A.L.R.2d 256.

Cause of action in tort as counterclaim in tort action, 10 A.L.R.2d 1167.

Failure to assert matter as counterclaim as precluding assertion thereof in subsequent action, under federal rules or similar state rules or statutes, 22 A.L.R.2d 621.

Permissibility of counterclaim or cross action for divorce where plaintiff's action is one other than for divorce, separation, or annulment, 30 A.L.R.2d 795.

Right of defendant in action for personal injury, property damage, or death, to bring in new parties as cross defendants to his counterclaim or the like, 46 A.L.R.2d 1253.

Counterclaim or the like as affecting appellate jurisdictional amount, 58 A.L.R.2d 84.

Exclusion from courtroom of expert witnesses during taking or testimony in civil case, 85 A.L.R.2d 478.

Independent venue requirements as to cross complaint or similar action by defendant seeking relief against a codefendant or third party, 100 A.L.R.2d 693.

Proceeding for summary judgment as affected by presentation of counterclaim, 8 A.L.R.3d 1361.

Right in equity suit to jury trial of counterclaim involving legal issue, 17 A.L.R.3d 1321.

May action for malicious prosecution be predicated on defense or counterclaim in civil suit, 65 A.L.R.3d 901.

Appealability of order dismissing counterclaim, 86 A.L.R.3d 944.

Right of party litigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law, 7 A.L.R.4th 1146.

Necessity and permissibility of raising claim for abuse of process by reply or counterclaim in same proceeding in which abuse occurred - state cases, 82 A.L.R.4th 1115.

Construction and application of claim maturity exception to compulsory-counterclaim requirement under state rules of civil procedure, 7 A.L.R.7th 7.

Construction and application of claim maturity exception to compulsory counterclaim requirement under Fed R. Civ P. 13(a)(1), 6 A.L.R. Fed. 3d 1.