Compulsory and Permissive Counterclaims

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  2. Georgia Code
  3. Courts
  4. Magistrate Courts
  5. Civil Proceedings
  6. Compulsory and Permissive Counterclaims

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  1. If any defendant has a counterclaim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim, which counterclaim does not require for its adjudication the presence of third parties over whom the court cannot obtain jurisdiction, such counterclaim shall be asserted by the defendant at or before the hearing on the plaintiff's claim or thereafter be barred.
  2. If any defendant has a counterclaim against the plaintiff other than a compulsory counterclaim described in subsection (a) of this Code section, such counterclaim may be asserted by the defendant at or before the hearing on the plaintiff's claim.
  3. If any defendant asserts a counterclaim against the plaintiff, the defendant shall file with the court a statement of the counterclaim in concise form and free from technicalities. The defendant's counterclaim shall give the plaintiff reasonable notice of the basis for each claim contained in the counterclaim. The defendant shall sign the counterclaim. At the request of a defendant, the judge or clerk may prepare the counterclaim. Verification of a counterclaim shall not be required.
  4. If the amount of a counterclaim exceeds the jurisdictional limits of the magistrate court, the case shall be transferred to any court of the county which has jurisdictional limits which exceed the amount of the counterclaim. If there is more than one court to which the action may be transferred, the parties may agree on the court to which the action shall be transferred, and, in the absence of any agreement, the judge of the magistrate court shall determine the court to which the action shall be transferred. If there is no other court to which the action may be transferred, it shall be transferred to the superior court of the county.
  5. A counterclaim may in the discretion of the magistrate be tried either separately or jointly with the plaintiff's claim.

(Code 1981, §15-10-45, enacted by Ga. L. 1983, p. 884, § 2-1; Ga. L. 1984, p. 22, § 15; Ga. L. 1984, p. 1096, § 6; Ga. L. 2008, p. 824, § 3/HB 958; Ga. L. 2013, p. 561, § 4/SB 66.)

Law reviews.

- For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B. J. 29 (1987).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions decided under former Code 1873, § 4166 and former Code Section 15-10-99, relating to setoff in actions in justice courts are included in the annotations for this Code section. See Editor's notes at beginning of chapter.

If claim of setoff exceeds jurisdiction of court, defendant cannot write off part of judgment, but may sue in superior court for balance due. Ware v. Fambro, 67 Ga. 515 (1881) (decided under former Code 1873, § 4166).

Damages in tort cannot be set off to contract demand. Hecht v. Snook & Austin Furn. Co., 114 Ga. 921, 41 S.E. 74 (1902) (decided under former law).

Plea of recoupment will be construed as one based on breach of warranty rather than deceit. Bowers v. Williams, 17 Ga. App. 779, 88 S.E. 703 (1916) (decided under former law).

No notice to plaintiff of filing of plea of recoupment is necessary to authorize trial if plaintiff is absent. Bowers v. Williams, 17 Ga. App. 799, 88 S.E. 703 (1916) (decided under former law).

No error in failing to transfer dispossessory action to superior court while transferring the counterclaim to superior court.

- Civil court properly refused to transfer a dispossessory action from the county civil court to the superior court under O.C.G.A. § 15-10-45(d) based on the tenant filing a counterclaim as that statute only applied to magistrate courts, not the county civil court. Further, whether the trial court erred by failing to inquire as to whether the parties were willing to consent to consolidation of the claims could not be determined because the appealing tenant failed to provide a transcript of the bifurcated or dispossessory hearings. Roberts v. Strong, 293 Ga. App. 466, 667 S.E.2d 632 (2008).

Cited in Oh v. Bell, 221 Ga. App. 276, 470 S.E.2d 807 (1996); Setlock v. Setlock, 286 Ga. 384, 688 S.E.2d 346 (2010).


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