Bell v. Sellers
| Decision Date | 05 November 1981 |
| Docket Number | No. 37886,37886 |
| Citation | 248 Ga. 424,283 S.E.2d 877 |
| Parties | Mary Ann BELL v. J. W. SELLERS et al. |
| Court | Georgia Supreme Court |
J. L. Jordan, Atlanta, for Mary Ann Bell.
Thomas G. Sampson, Donald P. Edwards, John L. Kennedy, Linwood R. Slayton, Jr., Thomas, Kennedy, Sampson & Edwards, Atlanta, for J. W. Sellers et al.
Mary Ann Bell, a tenant in an apartment owned by J. H. Sellers, allegedly was injured due to the negligent maintenance of the premises. In January, 1978, Bell sued Sellers, who was then 103 years old and (unknown to Bell) in a nursing home. Service of the suit was made on February 1 by leaving a copy with Sellers' wife at their home.
On April 17, 1978, Mrs. Sellers filed an application in the Fulton County Probate Court for appointment of a guardian for her husband as a mentally ill or incompetent person. Hearing was set for May 2, at which time an examining committee was appointed, the examiners found in favor of the application, and Mrs. Sellers was appointed her husband's guardian, all on May 2. Because Mrs. Sellers was 77 years of age and unable to manage her husband's affairs, J. M. Richardson was substituted as Mr. Sellers' guardian in August.
The damage suit being in default, Bell obtained a jury verdict for $30,000 on September 28, 1978. On October 27, Mr. Sellers' guardian made a motion to set aside the judgment on the ground of lack of jurisdiction of the person of the incompetent defendant. See Code Ann. § 81A-160(d). In support of this motion the guardian submitted two affidavits, one from Mr. Sellers' personal physician and one from the nursing home physician stating that based upon personal knowledge Mr. Sellers became incompetent in 1975 and remained so continuously to the present time. The motion to set aside was overruled because the defect did not appear upon the face of the record or pleadings. On appeal, Sellers v. Bell, 151 Ga.App. 440, 260 S.E.2d 538 (1979), the Court of Appeals affirmed, noting that the proper procedure would be by complaint in equity under Code Ann. § 81A-160(e).
Sellers, by his guardian, filed his complaint in equity on November 15, 1979, seeking to set aside the judgment in the damage suit. After filing the affidavits of the two doctors identified above, Sellers moved for a summary judgment setting aside the judgment in the damage suit. The trial court entered findings of fact and conclusions of law finding that Sellers was in fact physically and mentally incompetent at all material times, although not declared legally incompetent until May 2, 1978; that no service had been perfected upon him personally or upon a duly appointed guardian; and that a judgment rendered against a person incapable of managing his affairs was voidable under Collins v. Collins, 217 Ga. 143, 121 S.E.2d 18 (1961), and Keith v. Byram, 225 Ga. 678, 171 S.E.2d 120 (1969). The court granted summary judgment setting aside the judgment in the damage suit and allowed Sellers to answer that suit upon payment of costs.
1. On appeal, Ms. Bell argues that it was error for the trial court to grant summary judgment based upon the opinions of the doctors contained in their affidavits, citing Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969). But see Howard v. Walker, 242 Ga. 406, 249 S.E.2d 45 (1978); Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981). However, we find no objection made to the trial court's consideration of these affidavits.
In Federal Ins. Co. v. Oakwood Steel Co., 126 Ga.App. 479, 191 S.E.2d 298 (1972), the Court of Appeals held that an attack on an affidavit opposing a motion for summary judgment, on the ground that the affidavit does not show the requisite personal knowledge, will not be considered on appeal unless the objection to the affidavit was made in the trial court. The Court of Appeals reasoned as follows (126 Ga.App. at 481, 191 S.E.2d 298): ...
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