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Lawskills.com Georgia Caselaw
COOK v. JACKSON; and vice versa.
39839.
39840.
Action for damages. Heard Superior Court. Before Judge Knight.
FELTON, Chief Judge.
1. A prayer in an action for damages, "that process issue directed to and requiring defendant to be and appear at the next term of this court to answer petitioner's complaint in writing as required by law," is defective and the court did not err in sustaining the motion to quash the process and dismiss the main action in the absence of an amendment to the prayer.
2. The statute of limitation applies to cross-actions the same as it does to ordinary actions, and the court did not err in sustaining a plea of the statute to so much of the cross-action as sought damages for personal injuries, as such cross-action was filed more than two years from the date of the negligence alleged to have caused the defendant's injuries, but the court erred in dismissing the cross-action for damages to property because such cross-action was filed less than four years after the alleged negligence which caused them.
E. W. Cook sued G. W. Jackson on January 13, 1962, to recover damages for personal injuries and property damage alleged to have been caused by the negligence of the defendant which caused a collision between the automobiles being driven by the respective parties. The collision occurred January 16, 1960. The defendant filed an answer and a cross-action for damages for personal injuries and property damage on February 8, 1962. Before pleading to the merits the defendant moved to quash the process and dismiss the action on the ground that the prayer for process was "That process issue directed to and requiring defendant to be and appear at the next term of this court to answer petitioner's complaint in writing as required by law." No amendment to the prayer for process was offered. The plaintiff filed a plea of the statute of limitation to the cross-action with reference to the action for damages for personal injuries and all elements of damages in connection therewith. The court quashed the process and sustained the plaintiff's plea of the statute of limitation and dismissed the cross-action. The plaintiff excepts to the quashing of the process and dismissal of the plaintiff's action, and by cross-bill of exceptions the defendant excepts to the sustaining of the plea of the statute of limitation and the dismissal of the cross-action.
2. The cross-action was based on the theory that the plaintiff's negligence caused injury to the defendant's person and property. It was not a setoff against a possible recovery of some amount by the plaintiff. The cross-action was not a defense or a plea of recoupment under any theory. The cross-action was filed more than two years after the alleged personal injuries were suffered by the defendant, within thirty days from the service of process upon the defendant and the part of the cross-action seeking property damages was filed within four years from the time of the alleged negligence of the plaintiff. The statute of limitation applies to setoff and cross-actions in Georgia. Byrom v. Ringe, 83 Ga. App. 234 (63 SE2d 235); Mobley v. Murray County, 178 Ga. 388 (173 SE 680); 17 Ruling Case Law 745, Sec. 112; ibid., Sec. 113; 34 Am. Jur. 57, 63; ibid., 59, 65; 53 CJS 1090, Limitations of Actions, 106; 1 ALR2d 634.
It follows from what is said next above that the court's judgment sustaining the plea of the statute of limitation to that part of the cross-action which sought damages for personal injuries is correct. However, it would seem that the cross-action, insofar as it sought damages for injuries to property, is sustainable under the circumstances. We base this conclusion on a statement of the Supreme Court in Georgia R. &c. Co. v. Endsley, 167 Ga. 439, 443 (145 SE 851, 62 ALR 256) as follows: "As to limitations: we merely call attention to the fact that a party would be barred as to each class at precisely the same time, whether they constitute one cause of action or two; and that if some of his items of damage become barred, he may still sue for those against which the statute has not run, whether there be one action or two; for while a plaintiff may not, without the express or implied consent of the defendant (or for some equitable reason), split up a single cause of action for the purpose of bringing separate suits for the whole, he certainly may, if he chooses to do so, bring an action for less than he is entitled to receive."
Judgment on the main bill affirmed; judgment on the cross-bill affirmed in part and reversed in part. Eberhardt and Russell, JJ., concur.
William P. Johnson, contra.
Wyatt & Wyatt, L. M. Wyatt, for plaintiff in error.
DECIDED JANUARY 23, 1%3.
Friday May 22 22:11 EDT


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