The limitations of time within which various actions may be commenced and pursued within this state to enforce the rights of the parties are extended, only insofar as the enforcement of rights which may be instituted by way of counterclaim and cross-claim, so as to allow parties, up to and including the last day upon which the answer or other defensive pleadings should have been filed, to commence the prosecution and enforcement of rights by way of counterclaim and cross-claim, provided that the final date allowed by such limitations for the commencement of such actions shall not have expired prior to filing of the main action.
(Ga. L. 1964, p. 165, § 1; Ga. L. 1967, p. 226, § 37.)
Cross references.- Counterclaims and cross-claims generally, § 9-11-13.
Law reviews.- For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act," see 3 Ga. St. B.J. 383 (1967).
JUDICIAL DECISIONS
Counterclaim timely filed.
- Counterclaim was timely if filed within the time that a party was obligated to answer the main action as long as the limitations period for the counterclaim had not expired before the main action was filed. When both the main action against a truck driver and the truck driver's third party complaint against an injured person were filed within the two year statute of limitations period, the injured person's personal injury counterclaim against the truck driver was not barred even though it was filed beyond the two year period, and the trial court erred in dismissing the counterclaim. Harpe v. Hall, 266 Ga. App. 340, 596 S.E.2d 666 (2004).
Meaning of "main action."- Word "main" means most important in size or extent and, by definition, only one "main action" in a case can exist. American Credit Corp. v. United States Cas. Co., 49 F.R.D. 314 (N.D. Ga. 1969).
Counterclaim asserting a violation of the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq., is subject to the limitations period of O.C.G.A. § 9-3-97. Vikowsky v. Savannah Appliance Serv. Corp., 179 Ga. App. 135, 345 S.E.2d 621 (1986).
When plaintiff recommences an action under former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61), the defendant, who previously merely interposed defenses to an original action, may not for the first time seek to affirmatively recover damages by counterclaim, third-party complaint, or cross-claim, when the period provided by the statute of limitation for recovery of such damages has expired. Champion v. Wells, 139 Ga. App. 759, 229 S.E.2d 479 (1976).
Stipulated extension of time to file an answer did not extend the defendant's time for filing a counterclaim. Gibson v. Casto, 233 Ga. App. 403, 504 S.E.2d 705 (1998).
Stipulated extension of time within which to file an answer and defensive pleadings also extends the time to file a compulsory counterclaim which would otherwise be time-barred. Gibson v. Casto, 271 Ga. 667, 523 S.E.2d 564 (1999), disapproving construction of this section as set out in Division 1 of Gibson v. Casto, 233 Ga. App. 403, 504 S.E.2d 705 (1998).
Cited in Gunnells v. Seaboard Airline R.R., 130 Ga. App. 677, 204 S.E.2d 324 (1974); Hodges v. Community Loan & Inv. Corp., 133 Ga. App. 336, 210 S.E.2d 826 (1974); Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981); Equitable Bank v. Brown, 177 Ga. App. 776, 341 S.E.2d 300 (1986).
RESEARCH REFERENCES
Am. Jur. 2d.
- 51 Am. Jur. 2d, Limitation of Actions, §§ 124 et seq., 246.
C.J.S.- 54 C.J.S., Limitations of Actions, §§ 62, 263, 299, 360.
ALR.
- Right to dismissal of action for delay in prosecution as affected by filing of, or as affecting, cross complaint, counterclaim, intervention, and the like, 90 A.L.R. 387.
Commencement of action as suspending running of limitation against claim which is subject of setoff, counterclaim, or recoupment, 127 A.L.R. 909.
Pleading or attempting to prove by way of setoff, counterclaim, or recoupment, related claim barred by statute of limitations, as waiver of defendant's plea of limitation against plaintiff's claim, 137 A.L.R. 324.
Claim barred by limitation as subject of setoff, counterclaim, recoupment, cross bill, or cross action, 1 A.L.R.2d 630.
Tort claim against which period of statute of limitations has run as subject of setoff, counterclaim, cross bill, or cross action in tort action arising out of same accident or incident, 72 A.L.R.3d 1065.