Brer Rabbit Mobile Home Sales, Inc. v. Perry

7 Citing cases

  1. Leggett v. Benton Bros. c. Co.

    138 Ga. App. 761 (Ga. Ct. App. 1976)   Cited 20 times

    The statute of limitation defense is good. Brer Rabbit Mobile Homes Sales v. Perry, 132 Ga. App. 128 ( 207 S.E.2d 578). 4.

  2. Milburn v. Nationwide Ins. Co.

    228 Ga. App. 398 (Ga. Ct. App. 1997)   Cited 8 times   1 Legal Analyses

    In the place of "John Doe", the renewal action substituted a known defendant who had not been served within the two-year statute of limitation. Where a defendant is designated as an unknown "John Doe" and not served in an action, and in a subsequent renewal of the action, the defendant is named, substituted in place of "John Doe" and served after the expiration of the statute of limitation, the provisions of OCGA § 9-11-15 (c) govern whether the known defendant may be named and served in the renewal action after the limitation period has expired. Sims v. American Cas. Co., 131 Ga. App. 461, 481-482 ( 206 S.E.2d 121) (1974); Brer Rabbit Mobile Home Sales v. Perry, 132 Ga. App. 128 ( 207 S.E.2d 578) (1974); see Collier v. Marsh, 203 Ga. App. 322, 323 ( 416 S.E.2d 849) (1992), overruled on other grounds, 209 Ga. App. 855, 858 ( 434 S.E.2d 748) (1993), reinstated, 264 Ga. 359, 361 n. 3 ( 444 S.E.2d 322) (1994). Section 9-11-15 (c) provides that the substitution of the known defendant relates back to the date of the original pleadings if, within the limitation period, the defendant (1) "has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

  3. Larson v. C. W. Matthews Contracting Company, Inc.

    356 S.E.2d 35 (Ga. Ct. App. 1987)   Cited 6 times
    Nothing that the substitution of a newly found defendant for a fictitious defendant in personal injury action did not relate back to the filing of the original complaint, where said defendant did not become aware of institution of action until receiving letter from plaintiff's attorney four months after the expiration of two-year statute of limitations.

    Therefore, appellants' substitution of appellee for John Doe did not relate back to the date of the filing of the original complaint, and the personal injury action filed by appellants against appellee was properly disposed of in favor of appellee. See Moulden Supply Co. v. Rojas, supra; Brer Rabbit Mobile Home Sales v. Perry, 132 Ga. App. 128 ( 207 S.E.2d 578) (1974); Sims v. American Cas. Co., 131 Ga. App. 461 (6) ( 206 S.E.2d 121) (1974). 3. Appellants argue that the four-year statute of limitation for injury to personalty (OCGA § 9-3-31) is applicable to their lawsuit. If it is, the prerequisites to effect the relation back portion of 9-11-15 (c) have been met since appellee received notice of the action prior to the expiration of the four-year period of limitation. Appellants alleged in their complaint that they were injured in an automobile accident and had suffered "severe injuries."

  4. Vaughn v. Collum

    136 Ga. App. 677 (Ga. Ct. App. 1975)   Cited 11 times
    Holding that an uninsured motorist carrier had the right to notice of suit on the same basis as though a defendant and must be served as prescribed by statute within the applicable statute of limitation

    Subsection (d) thereof provides in part: "In cases where the owner or operator of any vehicle causing injury or damages be known, and either or both be named as defendants in any action for such injury or damages, a copy of such action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though such insurance company were actually named as a party defendant ... In any case herein where service upon an insurance company is prescribed, the clerk of the court in which the action is brought shall have same accomplished by issuing a duplicate original copy for the sheriff or marshal to place his return of service in the same form and manner as prescribed by law for a party defendant." In Moulden Supply Co. v. Rojas, 135 Ga. App. 229 ( 217 S.E.2d 468), Brer Rabbit Mobile Homes Sales v. Perry, 132 Ga. App. 128 ( 207 S.E.2d 578), and Sims v. American Cas. Co., 131 Ga. App. 461, 481 ( 206 S.E.2d 121), this court construed Code Ann. § 81A-115 (c) (relation back of amendments) in cases involving "John Doe" or unknown defendants as allowed by Code Ann. § 81A-110 (a), where there was no service on the entity intended prior to the running of the statute of limitation, holding that the limitation plea was good unless there has been prior notice of the institution of the action or its equivalent so as to bring the case within the exception stated within Code Ann. § 81A-115 (c) and that, in the absence of such in the record, the statute of limitation plea should be sustained. However, the situation in this case, while analogous, does not present precisely the same legal issue.

  5. Moulden Supply Co. v. Rojas

    135 Ga. App. 229 (Ga. Ct. App. 1975)   Cited 6 times

    " P. 483. See also Brer Rabbit Mobile Home Sales v. Perry, 132 Ga. App. 128 ( 207 S.E.2d 578). Judgment reversed. Deen, P. J., concurs. Evans, J., concurs in the judgment only.

  6. Moore v. Michelin Tire Company, Inc.

    1999 S.D. 152 (S.D. 1999)   Cited 28 times
    Determining that the accident date is when the injury became known and the cause of action accrued

    Cook v. Superior Court of Maricopa County, 658 P.2d 801 (Ariz. 1983); see also Meyer v. Kelsey-Hayes Corp., 613 P.2d 628, 629 (Ariz.Ct.App. 1980) ("[w]here fictitious defendants have no notice of suit until service of an amended complaint containing their actual names, the amended complaint is foreclosed by the statute of limitations which runs in the interim and does not relate back to the original complaint"); Lunn v. American Maintenance Corp., 618 P.2d 343, 345 (Nev 1980) (fictitious party rule is to be read in conjunction with the notice requirements of Rule 15(c) to determine whether the amendment related back to the time of the original complaint); Sims v. American Casualty Co., 206 S.E.2d 121 (Ga.Ct.App.), aff'd 209 S.E.2d 61 (GA 1974); Brer Rabbit Mobile Home Sales, Inc., v. Perry, 207 S.E.2d 578, 579 (Ga.Ct.App. 1974) (where a complaint is filed against a John Doe, but no service is made within the limitation period, the limitation defense is a good one unless the equivalent of Rule 15(c) has been met); Gould v. Tibshraeny, 517 P.2d 104, 106 (Ariz.Ct.App. 1973) (recognizing fundamental purpose of the statutes of limitation); Hartford Ins. Group v. Beck, 472 P.2d 955 (Ariz.Ct.App. 1970). [¶ 28] The court in Chacon v. Sperry Corp., 723 P.2d 814 (Idaho 1986) interpreted this issue in a slightly different manner.

  7. Vincent v. Edwards

    184 Mont. 92 (Mont. 1979)   Cited 5 times

    As in the present case, the requirements of Rule 15(c) had not been satisfied because the defendants did not have notice or knowledge of the action within the period of limitations. See also Brer Rabbit Mobile Home Sales, Inc., v. Perry (1974), 132 Ga. App. 128, 207 S.E.2d 578, and Annot., 85 A.L.R.3d 130, 146-148, § 7(a). In summary a plaintiff may utilize the fictitious name statute and may amend a complaint to substitute the true name of the defendant when discovered.