Continental Ins. Co. v. Higdon

• Decision Date: 15 June 1983
• Docket Number: 65562,Nos. 65561,s. 65561
• Citation: 167 Ga.App. 231,306 S.E.2d 20
• Parties: CONTINENTAL INSURANCE COMPANY v. HIGDON. BOOZER v. HIGDON.
• Court: Georgia Court of Appeals

Page 20

306 S.E.2d 20

167 Ga.App. 231

CONTINENTAL INSURANCE COMPANY v.HIGDON.

BOOZER v.HIGDON.

Nos. 65561, 65562.

Court of Appeals of Georgia.

June 15, 1983.

Rehearing Denied June 30, 1983. In Case No. 65562.

Certiorari Granted Oct. 31, 1983.

John W. Hinchey, M. Michael Egan, Jr., C. James Jessee, Jr., Karen W. Rowles, Atlanta, Max D. Kaley, Marietta, for appellant.

J. Eugene Wilson, College Park, for appellee.

SHULMAN, Chief Judge.

Appellee brought suit against appellants and others for damages arising from alleged mismanagement of appellee's estate during a period when she was incompetent.Appellant Boozer is appellee's sister and was guardian of her person and property for the period from which the controversy arose.Continental was surety on Boozer's guardian's bond.Appellee alleged in her complaint that her estate was mismanaged by Boozer and others, that Boozer had taken commissions not due her, and that Boozer had defrauded her by expending appellee's funds for the support of their mother.This appeal is from the grant of summary judgment against these appellants.The enumerations of error of both appellants, though lengthy, raise only two questions: whether there was a question of fact concerning the existence of a trust purportedly created by the will of appellee's late husband for the support of appellee's mother, and whether the trial court should have abated this suit or at least denied summary judgment on the ground that there was a prior suit pending or that there had been a prior adjudication of the issues here involved.

1.Appellee has moved to dismiss these appeals on the ground that summary judgment was actually entered several months before the entry of the order from which these appeals were taken.However, since the first order granted summary judgment against less than all the defendants and did not have the finality language of OCGA § 9-11-54(b)(Code Ann. § 81A-154), the time for filing a notice of appeal did not begin to run upon the entry of the first summary judgment order.Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641.It was not until the entry of the order specified in the notice of appeal that the time for filing the notice of appeal began to run.The notices of appeal were filed within 30 days of that order and were, therefore, timely.The motion to dismiss is denied.

2.Boozer raised defensively the pendency of another action between the same parties in another court and later asserted the existence of a prior adjudication of the issues in this case.However, she failed to support her assertions with sufficient evidence to successfully maintain either defense.

In support of the pendency claim, copies of various pleadings and of correspondence between the parties were submitted as attachments to an affidavit.None of the documents was certified as a record of any court.In an effort to raise the defense of res judicata, a certified copy of a judgment of a probate court was filed.However, the judgment was not accompanied by any of the pleadings or other documents of record from that case.

"For the plea or motion [based on the pendency or adjudication of a previous action] to...