When demand is a condition precedent, it must not be made prematurely, for such cases equivalent to no demand at all. It need not necessarily be made by the party himself, it is sufficient if it is made by an agent. An averment though often requested will not suffice because the time and place of, together with the demand actually made, and by and upon whom made, must be set out so that the court may judge its efficiency. A demand as a statutory prerequisite under certain types of action should not be confused with demand for judgment under the civil practice act. While demand is required under certain statutes as a precondition to an action and a failure to make such a demand may be fatal, the failure to demand appropriate relief in a complaint will not result in dismissal. Sometimes the statute requires notice as a condition precedent to the accrual or bringing of an action, for example, notice is required to be given to the defendant for the payment of attorneys fees for the collection of notes, and notice of an injury as required by the Worker's Compensation act. Ordinarily where a notice is required for the benefit of the defendant he may waive it but where the public has an interest such as in the case of the notice for the collection of attorney fees it may not be waived. For notice as affecting delivery under UCC see OCGA 11-2-616. Under O.C.G.A. 51-1-34 settlement of a cause of action for property damage will not prevent the claimant from bringing an action for personal injury where both claims arose out of the same motor vehicle collision. Unless, of course, the settlement contains general language intended to release both claims. When there is no settlement, the injured party has a separate and distinct cause of action against the person causing the physical injury to his person and a separate distinct cause of action for the injuries to his property. The injured party has a right, in his sole discretion, to prosecute each cause of action separately or combine the two cause of actions in a single action.
A creditor in imminent need of money may not sue for a some admitted to be due and reserve an action for part of his claim which is in dispute. However, it has been held that, when by agreement and account for goods sold is on the same day divided into four parts, each falling on a separate day, the plaintiff might maintain a separate suit on each part, and cannot be forced to unite them so that jurisdiction will be defeated. Closely analyzed, the situation under these circumstances is not really in instances splitting, nor is an exception to the rule against splitting. The code provides that if a contract is entire only one action can be maintained for breach thereof, but, if it is severable, or if the breaches occur at successive periods in entire contract an actual lie for each breach, but all the breaches occurring up to the commencement of action must be included therein. Amendment of pleadings so as to seek recovery of installment payments due between final judgment and filing is permitted but not required. Since action and seek recovery only for right up until the filing of action, and additional suit occurring after the filing of the first action would not be abated by pendency of the first action. O.C.G.A. 9-2-44 which provides for the defense of former recovery and pendency, serves further to enforce rule against splitting. O.C.G.A. 9-2-5a and 9-2-44a O.C.G.A. 9-to-44. Appellant wife sued appellee husband for divorce, child custody and support. The trial judge granted temporary child custody to wife with visitation rights to husband. Before this order was filed was voluntarily dismissed divorce petition and took children to Florida. The trial court granted husband's motion to set aside a wise dismissal of the petition as to visitation rights. The husband sued for divorce, permanent custody child support and alimony. As parties occupy different states and to suits OCG a A9-2-5 was inapplicable. However trial court erred in denying wife's motion to dismiss husband sued as OCGA9-2-44 applied. Bedingfield v. Bedingfield 248 Ga. 91. 1981. Of CGA 9-2-44 which provides for the defense and of former recovery and pendency, serves further to enforce rule against splitting.
Action is not a pending suit until after service of process is perfected until after service of process is perfected, when service is made it relates back to the date of filing, and the date of filing establishes the date the action is commenced. Thus once the suit is served it is in law or in commencement or filing the complaint that determines which action is the prior action.
OCGA 9-11-18a plaintiff's complaint against defendant was dismissed after defendant as third-party plaintiff impleaded third-party defendant to file against him direst damage claims as well as claims for secondary liability. In this situation, provisions of civil practice act cannot specify what a trial court loses jurisdiction over third-party direct damage claim. Thus Court was persuaded to view taken by most federal courts that jurisdiction over third-party direct damage claim is not destroyed if original action is sold or disposed of in some fashion before adjudication of such claim, but trial court, in exercise of its discretion either may proceed with claim or dismiss. Cohen v. McLaughlin 250 Ga. 661 (1983). Assuming arguendo that Florida contempt order could be directly enforced in this state pursuant to domestication proceedings instituted in accordance with OCGA 9-12-130 does not follow that appellant was required to undertake such domestication proceedings as condition precedent to bringing conversion action in this state based on his alleged ownership of property. The court rejected appellants' theory that her petition for equitable partitioning was in rem proceeding which did not subject her to personal jurisdiction of trial court. OCGA 9-11-8e DHR may in one judicial proceeding seek to establish paternity and obligation of support pursuant Child support recovery Dep't Department of human resources v. Carlton 174 Ga. App. 30 (1985). OCGA 9-11-18(b) in particular plaintiff may join a claim for money and a claim to set aside a fraudulent conveyance. The civil practice act provides for the liberal joinder of claims and parties for the benefit purpose of avoiding multiplicity of suits, conflicting decisions and to see that justice and equity obtains in all situations. Cotton mental Ins. Co. v. Mercer 130 Ga. App. 339 (1973). In demand for statutory lien or in the alternative equitable lien is permissible. There is no inhibition to joinder of actions ex contractu and those ex delicto, insurance carrier, motor carrier in third-party tortfeasor's faith be proceeded against in one action. A plaintiff may pursue a number consistent or inconsistent remedies against the same person or different person until he obtained the satisfaction from some of them. The 2 or more claims may be filed at the same time, or by the use of amendments. A separate trial of issues may be ordered by the court. Schuck v. Henderson 134 Ga. App. 808 (1975). It has been held that where complaint seeks both legal and equitable relief and the complaint shows a claim on which relief either legal or equitable, may be granted in it is not subject to dismissal. In one case, plaintiffs were entitled to remain in court under their pleading whereby one count proceed upon a breach of contract and another count was based upon a tort alleging a conspiracy involving a party other than the contracting parties. OCGA 9-12-40 is a codification George's basic common law rule of res judicata. However for one action to act as a bar to a subsequent action, the two actions must share certain characteristics first parties to the two actions must be identical and second, the subject matter of the actions must also be identical. Here, the parties to the two actions are identical, however, the subject matter of the actions is not. The first lawsuit dealt with a series of debts owed Watkins by Lawson. The present lawsuit deals with title to a racetrack. The racetrack was involved in the first lawsuit only to the extent that Lawson's counterclaim dealt with in reformation of a promissory note for which the racetrack properly serve as collateral. The racetrack was not the subject matter the complaint in the first action, nor was it the subject matter the counterclaim in that action. Because the subject matter of the two actions were not identical, the trial court in the present action correctly denied Lawson's motion to dismiss as to the res judicata issue. Our joinder statute OCGA 9-11-18 provides for permissive joinder of claims for relief. In the first action, Watkins chose to assert only his claims for relief relating to various loans he had made to Lawson during their business relationship. When Lawson counterclaimed in the first action seeking relief concerning the promissory note, for the sake of judicial economy perhaps it would've been best to have litigated the issue to title of a the racetrack in that action. However, the issue had not been joined in the pleadings or in an appropriate pretrial order and, under such circumstances, the trial court in the first action correctly determined, the day of trial, that issue cannot be litigated once all parties agreed, which Lawson refused to do. That the issue of title to the racetrack could have been put in issue in the previous lawsuit does not require a finding under OCGA 9-12-40 that the issue is now res judicata. In and thus one must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be rests jury, pursuant to OCGA 9-12-40. However, in any situation where, as here, a plaintiff has multiple dealings with the defendant, and our law does not require that he assert every separate claim for relief that he may have against the defendant in one single lawsuit or risk losing the claim for relief forever, as would be the case if our joinder statute provided for mandatory rather than permissive joinder. Instead our law requires that such a plaintiff must bring every claim for relief he has concerning the same subject matter in one lawsuit. is in the previous action, and Watkins chose to bring suit against Lawson for every claim for relief he had against loss and that arose out of loans he had made a loss. Watkins chose not to include his claims for relief that arose out of the racetrack which he had given to Lawson in trust. To construe OCGA 9-12-42 required the inclusion of all claims for relief which could have been raised under OCGA 9-11-18 as the dissent suggests, would require compulsory joinder of unrelated claim. Such a construction would not only defeat the purpose for which OCGA 9-11-18a was enacted but would render the same meaningless. The civil practice act does not affect venue and jurisdiction see OCGA 9-11-82. Therefore, venue and jurisdictional requirements could prevent a joinder of claims or parties in spite of the liberalization intended by the civil practice act. See also Pemberton v. Purifoy 128 Ga. App. 892 (1973). Death of party to a pending action automatically suspends action as to that party until someone is substituted for him. Until substitution occurs further proceedings in case are void as to that party. Omak Indus. Inc. v. Alwine, 164 Ga. App. 397 (1982). Claim for equitable division of property pending in divorce proceedings do not survive death of claimant spouse during pendency of proceedings and prior to entry of divorce decree. However, equitable claim to property filed or maintained on resulting trust theory survived that the spouse. Cigars v. Brooks 248 Ga Ga. 427 (1981). When appellant died and his causes of action whether based on a statute contract or tort did not abate but rather survived to his legal representative. Dudley v. Watt Co. v. a bank NA 290 Ga. App. 220 (2008). In the event of death of the wrongdoer prior to suit, his personal representative is subject to suit, but punitive damages are not authorized. Attorney fees and expenses are generally not recoverable as damages. However a jury may award them or their recovery especially pled and the finding of stubborn litigiousness bad faith or unnecessary trouble and expenses is made. When an opposing party asserts a claim, defense or other position which is so lacking in the existence of a justiciable issue of law or fact that it is beyond reasonable belief the court would except it, attorney fees and expenses will be awarded against the opposing party and his or her attorney. The bringing of suit or assertion of the defense which lacks substantial justification which was interposed for delay, or which unnecessarily expansive proceeding by abuse of discovery or other improper conduct can also result in a court awarding attorney's fees and expenses upon its own motion or the motion of any party. OCGA 9-15-14 ( b. In trial court retains discretion to decide whether attorney fees should be awarded even when party prevails on abuse of litigation claim. OCGA 9-15-14 (b). Contact an attorney from the Howard Law group today for a free consultation.