08 HB 958/AP
House
Bill 958 (AS PASSED HOUSE AND SENATE)
By:
Representatives Rice of the
51st,
Lindsey of the
54th,
Mumford of the
95th,
Coleman of the
97th,
Casas of the
103rd,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 3 of Chapter 10 of Title 15 of the Official Code of Georgia
Annotated, relating to civil proceedings in magistrate court, so as to clarify
the appeal procedure for certain judgments; to provide for additional
information in statements of claim; to change provisions relating to default
judgments; to revise the procedures for applying to vacate a judgment; to revise
the requirements for use of postjudgment interrogatories; to provide for related
matters; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
3 of Chapter 10 of Title 15 of the Official Code of Georgia Annotated, relating
to civil proceedings in magistrate court, is amended by revising paragraph (2)
of subsection (b) of Code Section 15-10-41, relating to no jury trials in
magistrate court, as follows:
"(2)
No appeal shall lie from a default judgment
or from a
dismissal for want of prosecution after a nonappearance of a plaintiff for
trial. Any voluntary dismissal by the plaintiff or by order of the court for
want of prosecution shall be without prejudice except that the filing of a
second such dismissal shall operate as an adjudication upon the
merits.
Review,
including review of a denial of a postjudgment motion to vacate a
judgment, shall be by certiorari to the
state court of that county or to the superior court of that
county."
SECTION
2.
Said
article is further amended by revising subsections (a) and (g) and paragraph (1)
of subsection (e) of Code Section 15-10-43, relating to statement of claim,
service of process, and default judgments, as follows:
"(a)
Actions shall be commenced by the filing of a statement of claim, including the
last known address of the defendant, in concise form and free from
technicalities. The plaintiff or his or her agent shall sign and verify the
statement of claim by oath or affirmation. At the request of any individual,
the judge or clerk may prepare the statement of claim and other papers required
to be filed in an action. The statement of claim shall include
a brief
statement of the claim giving the defendant reasonable notice of the basis for
each claim contained in the statement of claim
and the address at which the plaintiff
desires to receive the notice of hearing."
"(e)(1)
When a hearing is scheduled pursuant to subsection (c) of this Code section,
upon failure of the defendant to appear for the hearing, the plaintiff shall be
entitled to have the defendant´s answer stricken and a default judgment
entered;
provided, however, that no default judgment shall be granted if the defendant
appears at trial through counsel. If the
claim is for liquidated damages, the plaintiff shall be entitled to take a
judgment in the amount set forth in the complaint without further proof. If the
claim is for unliquidated damages, the plaintiff shall proceed to prove his or
her damages and take judgment in an amount determined by the
judge."
"(g)
Notwithstanding the provisions of Code Section 15-10-42, the magistrate court
may grant relief from a judgment under the same circumstances as the state court
may grant such relief. Requests for relief from judgments
pursuant to
this Code section in the magistrate court
shall be by filing a
new action
pursuant to this Code section
written motion
which sets forth the issues with reasonable
specificity. The procedure shall then be
the same as in other cases except the court may assess costs as seem
just."
SECTION
3.
Said
article is further amended by revising subsection (c) of Code Section 15-10-45,
relating to compulsory and permissive counterclaims, as follows:
"(c)
If any defendant asserts a claim against the plaintiff, the defendant shall file
with the court a statement of the claim in concise form and free from
technicalities.
The
defendant´s claim shall give the plaintiff reasonable notice of the basis
for each claim contained in the statement of
claim. The defendant shall sign and
verify the statement of claim by oath or affirmation. At the request of a
defendant, the judge or clerk may prepare the statement."
SECTION
4.
Said
article is further amended by revising Code Section 15-10-48, relating to form
of statement of claim, verification, and notice, as follows:
"15-10-48.
The
statement of claim, verification, and notice shall be in substantially the
following form:
Magistrate
Court of __________ County
State of Georgia
State of Georgia
______________
Plaintiff
______________
Address
v.
______________
Defendant
Plaintiff
______________
Address
v.
______________
Defendant
Statement
of Claim
(Here
the plaintiff or, at his
or
her request, the court will insert a
brief
statement of the plaintiff´s claim
or claims
giving the defendant reasonable notice of the basis for each
claim and, if the action is on a contract,
either express or implied, the original statement of the plaintiff´s claim
which is to be filed with the court may be verified by the plaintiff or his
or
her agent as follows:)
STATE
OF GEORGIA
COUNTY OF __________
COUNTY OF __________
_______________________,
being first duly sworn on oath, says the foregoing is a just and true statement
of the amount owing by defendant to plaintiff, exclusive of all setoffs and just
grounds of defense.
______________
Plaintiff or agent
Sworn and subscribed
before me this ______ day
of ______________, ____.
Plaintiff or agent
Sworn and subscribed
before me this ______ day
of ______________, ____.
______________
Notary public
or attesting
official
Notary public
or attesting
official
Notice
TO:
______________
Defendant
Defendant
______________
Home Address
or
______________
Business Address
Home Address
or
______________
Business Address
You
are hereby notified that _______________________ has made a claim and is
requesting judgment against you in the sum of ________ dollars ($______), as
shown by the foregoing statement. The court will hold a hearing upon this claim
at (address of court) at a time to be set after your answer is
filed.
YOU
ARE REQUIRED TO FILE OR PRESENT AN ANSWER TO THIS CLAIM WITHIN 30 DAYS AFTER
SERVICE OF THIS CLAIM UPON YOU. IF YOU DO NOT ANSWER, JUDGMENT BY DEFAULT WILL
BE ENTERED AGAINST YOU. YOUR ANSWER MAY BE FILED IN WRITING OR MAY BE GIVEN
ORALLY TO THE JUDGE.
If
you have witnesses, books, receipts, or other writings bearing on this claim,
you should bring them with you at the time of hearing.
If
you wish to have witnesses summoned, see the court at once for
assistance.
If
you have any claim against the plaintiff, you should notify the court at
once.
If
you admit the claim, but desire additional time to pay, you must come to the
hearing in person and state the circumstances to the court.
You
may come with or without an attorney.
______________
Magistrate of
______ County"
Magistrate of
______ County"
SECTION
5.
Said
article is further amended by revising subsections (b), (c), and (g) of Code
Section 15-10-50, relating to propounding of interrogatories to judgment debtor,
as follows:
"(b)
If the judgment or execution concerning which interrogatories are being
propounded was issued by the magistrate court the judgment creditor may,
within 30
days after the entry of judgment, file the
form interrogatories specified in this Code section with the clerk of the same
magistrate court, along with costs of $10.00. Interrogatories filed under this
subsection shall be served upon the judgment debtor by certified mail or
statutory overnight delivery.
(c)
Interrogatories propounded pursuant to a judgment
entered
more than 30 days previously or entered in
any other court shall be filed as a new civil action and shall be accompanied by
the filing and service fees required for civil actions in that magistrate court.
Interrogatories propounded under this subsection shall be served upon the
judgment debtor in the manner provided for service of process in civil actions
in magistrate court."
"(g)
Notwithstanding the provisions of Code Section 15-10-42,
in any case
involving writs and judgments in dispossessory or distress warrant proceedings
under paragraph (6) of Code Section 15-10-2 in which the judgment exceeds the
amount of $5,000.00, the judgment creditor
or a successor in interest when that interest appears of record may, in addition
to any other process or remedy provided by law, utilize the discovery provisions
set forth in Code Section 9-11-69."
SECTION
6.
All
laws and parts of laws in conflict with this Act are repealed.