Where in the law there remains a condition precedent to the
bringing of an action or the parties either expressly or by necessary
implication make a condition precedent in a contract that condition must be
complied with before an action will lie, unless it is waived or compliance is
prevented by some act of the defendant. While general language affirmatively
pleading performance of conditions precedent satisfies the civil practice than
not all the performances were met of a condition precedent must be stated
with specificity and particularity. Procurement of a
certificate of authority to transact business is a condition precedent to a
foreign corporations capacity to commence or maintain any suit or proceeding in
any court of the state. The subsequent procurement of the certificate and later
refiling of an action dismissed for failure to procure the certificate will
cure the original failure to comply with this condition precedent and defense
of res judicata will not lie to bar the second suit.
Word 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 OCGA9-2-5 was inapplicable. However trial court erred in denying wife's motion to
dismiss husband sued as OCGA 9-2-44 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. Contact Howard Law Group for a free consultation.
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