2021 Georgia Code
Title 9 - Civil Practice
Chapter 2 - Actions Generally
Article 3 - Abatement
§ 9-2-42. Death of One or More Codefendants; Suggestion of Record
In all actions against two or more defendants, one or more of whom have died or may die pending the action, the plaintiff may suggest the death of record and proceed against the surviving defendants to the extent of their respective liabilities.
(Ga. L. 1859, p. 49, § 1; Code 1863, § 3377; Code 1868, § 3396; Code 1873, § 3444; Code 1882, § 3444; Civil Code 1895, § 5041; Civil Code 1910, § 5623; Code 1933, § 3-506.)
Law reviews.- For article, "Actions for Wrongful Death in Georgia: Part One," see 19 Ga. B.J. 277 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," see 19 Ga. B.J. 439 (1957). For article, "Actions for Wrongful Death in Georgia: Part Two," section two, see 20 Ga. B.J. 152 (1957).
JUDICIAL DECISIONS
Plaintiff may suggest death and proceed against surviving defendants to the extent of their respective liabilities in actions against defendants, one or more of whom have died or may die pending the action. Rogers v. Chambers, 112 Ga. 258, 37 S.E. 429 (1900).
Entry on minutes may be made after judgment. Pearce v. E.M. Bruce & Co., 38 Ga. 444 (1868).
Application of section to actions against partnerships.
- Section does not apply to action against two partners to obtain account for partnership acts, and when one of the partners dies, the personal representatives of the deceased must be made parties. Pearce v. E.M. Bruce Co., 38 Ga. 444 (1868).
When action is pending against partnership and one of the partners dies, upon the partner's death being suggested of record, the case may proceed without further order against the other two partners as survivors. Telford v. Quillian, 45 Ga. App. 257, 164 S.E. 228 (1932).
Death of surety in action on bond after reference to auditor.
- Under this section, death of one of defendant sureties after filing of action against principal and sureties on administrator's bond and after reference of case to auditor but before hearing by auditor does not abate action or deprive auditor of jurisdiction. Ellis v. Geer, 36 Ga. App. 519, 137 S.E. 290 (1927).
After sole defendant in action of ejectment dies and another defendant has been brought in and has pleaded to the merits, action may proceed as to the latter without making representative of the former a party. Gardner v. Granniss, 57 Ga. 539 (1876).
Cited in Castor v. Pace, 24 Ga. 137 (1858); Stancil v. Kenan, 35 Ga. 102 (1866); Sanders v. Etcherson, 36 Ga. 404 (1867); Bullock v. King, 48 Ga. 550 (1873); Cobb v. Pitman, 49 Ga. 578 (1873); Stewart v. Barrow, 55 Ga. 664 (1876); Hall ex rel. Watkins v. Woolley, 59 Ga. 755 (1877); Crapp v. Dodd, 92 Ga. 405, 17 S.E. 666 (1893); American Sur. Co. v. Wood, 2 Ga. App. 641, 58 S.E. 1116 (1907); Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275, 65 S.E. 35 (1909); Heitmann v. Commercial Bank, 7 Ga. App. 740, 68 S.E. 51 (1910); Watts v. Langston, 135 Ga. 161, 68 S.E. 1115 (1910); Hyde v. Fornara, 74 Ga. App. 438, 40 S.E.2d 151 (1946).
RESEARCH REFERENCES
Am. Jur. 2d.
- 1 Am. Jur. 2d, Abatement, Survival, and Revival, §§ 47 et seq., 100.
C.J.S.- 1 C.J.S., Abatement and Revival, § 124 et seq.
ALR.
- Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806.
Abatement of action which does not survive, by death of party pending appeal or writ of error, 62 A.L.R. 1048.
Death of tort-feasor before death of injured person as precluding action for death, 112 A.L.R. 343.
Death of principal defendant as abating or dissolving garnishment or attachment, 131 A.L.R. 1146.
Reversal upon appeal by, or grant of new trial to, one coparty defendant against whom judgment was rendered, as affecting judgment in favor of other coparty defendants, 166 A.L.R. 563.
Conflict of laws as regards survival of cause of action and revival or pending action upon death of party, 42 A.L.R.2d 1170.
Abatement or survival of action for attorney's malpractice or negligence upon death of either party, 65 A.L.R.2d 1211.
Assignability and survivability of cause of action created by civil rights statute, 88 A.L.R.2d 1153.
Survival of action or cause of action under civil damage acts, 94 A.L.R.2d 1140.
Validity of exception for specific kind of tort action in survival statute, 77 A.L.R.3d 1349.
