Citizens and Southern Nat. Bank of Ga. v. Baumgartner

• Court: Georgia Court of Appeals
• Writing for the Court: PANNELL; BELL; EVANS; EVANS
• Citation: Citizens and Southern Nat. Bank of Ga. v. Baumgartner, 181 S.E.2d 519, 123 Ga.App. 462 (Ga. App. 1971)
• Decision Date: 11 March 1971
• Docket Number: 3,Nos. 45763-45765,Nos. 1,2,s. 45763-45765,s. 1
• Parties: CITIZENS & SOUTHERN NATIONAL BANK OF GEORGIA et al. v. E. H. BAUMGARTNER. CITIZENS & SOUTHERN NATIONAL BANK OF GEORGIA v. R. H. PADGETT. CITIZENS & SOUTHERN NATIONAL BANK OF GEORGIA v. J. E. PADGETT

Page 519

181 S.E.2d 519

123 Ga.App. 462

CITIZENS & SOUTHERN NATIONAL BANK OF GEORGIA et al. v. E. H. BAUMGARTNER.

CITIZENS & SOUTHERN NATIONAL BANK OF GEORGIA v. R. H. PADGETT.

CITIZENS & SOUTHERN NATIONAL BANK OF GEORGIA v. J. E. PADGETT.

Nos. 45763-45765.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 11, 1971.

Bennet, Gilbert, Gilbert & Whittle, Richard M. Scarlett, Wallace E. Harrell, Brunswick, for appellants.

Alton D. Kitchings, Savannah, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

Where motions for summary judgment by defendants as to a two-count petition are overruled and an appeal by the defendants is entered to such ruling and pending the appeal another motion for summary judgment based upon additional evidence, together with the same evidence as presented on the prior motions, is presented by these same defendants and other defendants and is sustained as to the first count of the petition and overruled as to the second count, and an appeal is entered by the defendants as to the overruling of the motion for summary judgment as to the second count of the petition, case numbers 45908, 45910 and 45912, and cross appeals are entered by the complainant, case numbers 45909, 45911 and 45913, as to the ruling sustaining the motions for summary judgment as to the first count of the petition, the appeals entered to the first motions for summary judgment have become moot. Accordingly, these appeals must be dismissed.

Appeals dismissed.

BELL, C.J., JORDAN and HALL, P. JJ., and DEEN and WHITMAN, JJ., concur.

EVANS, J., dissents.

EBERHARDT and QUILLIAN, JJ., disqualified.

EVANS, Judge (dissenting).

I dissent from the majority opinion because I do not believe these cases are moot. Where a defendant files a motion for summary judgment against a plaintiff, and then files another motion for summary judgment against the same plaintiff, and both motions for summary judgment grow out of the same case in the same court, if either motion for summary judgment is moot I believe it is the second motion and not the first.

Here three suits for damages were filed by separate plaintiffs against one defendant in the lower court. The defendant filed separate motions for summary judgment against each plaintiff. These motions were heard in the lower court and denied as to the second count of each complaint, and defendant, by timely permission of the trial court, then appealed to this court. Before this court decided these three motions for summary judgment, the defendant filed a second motion for summary judgment against each plaintiff, and after a hearing in the trial court, the defendant again, by permission of the trial court, appealed the last three cases to this court.

I cannot agree with the majority in its conclusion that the first cases are moot. I find no law that suggests one party may bring a motion for summary judgment against his adversary, and while said motion is pending, bring another motion for summary judgment against the same adversary in the same case. It would constitute harassment of a party if his opponent could bombard him with separate motions for summary judgment each time he desired to raise a new point, and thus require such opponent to defend against multiple motions for summary judgment at the same time. Nor is there much excuse for allowing a second motion for summary judgment by the same party, even after the first motion has been decided unfavorably, although there are certain prescribed conditions under which such second motion may be brought after termination of the first motion.

In 6 Moore's Federal Practice, 2103, § 56.08 it is stated that:

'The court may deny a defendant's motion for summary judgment without prejudice to its renewal at trial.'

And in § 56.14(2) it is stated: 'And in the exercise of a sound discretionary power the court, in a proper case, may deny a motion for summary judgment without prejudice to a later renewal-even to a renewal at trial; * * *' Citing the foregoing authority, this court, in Suggs v. Brotherhood of Locomotive Firemen, &c., 106...