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.
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