Saturday, September 26, 2015

What kind of civil action ? | Paulding County lawyer

A civil action is Paulding County one founded on private rights arising either from contract or tort. An action ex contractu is an action based upon contract. The term relates to the nature of the cause of action rather than to the form of remedy for its enforcement. It is immaterial whether the action partakes of the nature of the legal or an equitable cause. It need not necessarily be founded upon an express contract, thus where property is unlawfully converted under such circumstances as to amount to a larceny, an action to recover the value of such property partakes of the nature of an action ex contractu upon an implied promise to pay for it. An action ex delicto on the other hand, is an action arising out of or partaking the nature of a tort. The term defined by the process of exclusion embraces all those actions whose foundation rests upon the failure of a person to perform a duty which is not imposed upon him by contract, but by law, or, although imposed by contract, such imposition is only cumulative to those duties which are already imposed by law. An example of the latter situation would be duties imposed by law upon common carriers a passengers, which are also imposed upon the latter by express contract between the two. In both of these situations the cause of action is ex delicto, unless in the latter situation, the plaintiff disregards the duties imposed by law and chooses as the basis of his right the breach of the duties imposed by the contract, in which case his cause of action is ex contractu. An action in personam, as distinguished from an action against one thing or an action in Rem, is defined as an action against the person, founded on a personal liability.

A statutory action is one based upon a statute which created or authorized it, as distinguished from a common-law action which is allowed by the common-law. Common-law actions are those which were adopted from the English common law in force at the time the state became independent, being such as were suited to our conditions, and which have not since been abolished by statute. In some instances statutory and common law remedies are cumulative. A statute creating a new remedy for an existing right does not take away the pre-existing remedy, without express words are necessary implications. Consequently, either may be pursued, the new remedy being simply cumulative. However, when the statute gives a right or remedy which did not exist at common law, and provides a specific method of enforcing it, the mode of procedure provided by the statute is exclusive and must be pursued strictly.   An action at law is an action asking only legal relief such as damages for breach of contract, as distinguished from a suit in equity asking for equitable relief, such as an injunction, rescission, etc. In Georgia, bills and equity and all distinctions of actions into real, personal, and mixed, are abolished. However, the superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal, equitable, or both, and apply remedies or relief, legal, equitable, or both, in favor of either party as the nature of the case may allow or require. Contact a Paulding County lawyer today for help regarding your civil case.

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