Dutton v. Dykes
| Decision Date | 24 June 1981 |
| Docket Number | No. 61522,61522 |
| Citation | 283 S.E.2d 28,159 Ga.App. 48 |
| Parties | DUTTON v. DYKES et al. |
| Court | Georgia Court of Appeals |
Murray M. Silver, Atlanta, for appellant.
Gail C. Flake, Decatur, for appellees.
Appellant Valerie Caldwell Dutton brought this action for malicious arrest against appellees G. R. Dykes, a DeKalb County police investigator, and Walt Russell, Chairman of the DeKalb County Commission at the time of her arrest. Appellant enumerates as error the trial court's grant of appellees' motion for summary judgment and the denial of her "motion to reconsider."
On July 7, 1980 appellees filed a motion to dismiss on the ground that appellant had failed to state a cause of action against them. A hearing on the motion was set for August 8. On August 1 appellees filed the affidavit of G. R. Dykes, and on August 8 a memorandum of law, in support of their motion. After hearing arguments on the motion, the trial court directed each side to submit briefs on the question of whether appellees' affidavit had pierced appellant's pleadings as to the issues of malice and probable cause. On August 12 both sides submitted the requested briefs. Additionally appellees submitted a proposed order; appellant amended her complaint and submitted an affidavit in opposition to the motion. On September 3 the trial court signed appellees' proposed order and on September 4 that order was filed with the clerk of court. On September 10 appellant filed a "motion to set aside" the order of the court; this motion was denied on September 30. Appellant's notice of appeal was filed on October 7.
1. The order granting appellees' motion for summary judgment stated in pertinent part that the trial court's decision was based "upon consideration of the pleadings filed in this case, of all discovery taken in the case, and of the affidavit of [appellee] G. R. Dykes... As grounds in support of her motion to set aside 1 that order appellant set forth: "(1) That the Court, by its order, and on its face failed to consider the affidavit filed by [appellant] contesting the affidavit of ... G. R. Dykes; (2) That on August 11, 1980, [appellant] filed an amendment to [appellees'] motion for summary judgment; (3) That attorneys for [appellees] prepared the within order and forwarded the same to [the trial court] prior to the time that they received [appellant's] brief, etc.; and (4) That [appellant's] affidavit and amendment create a genuine issue of material fact."
The Civil Practice Act provides: "A motion to set aside must be predicated upon some nonamendable defect which does appear upon the face of the record or pleadings..." CPA § 60(d) (Code Ann. § 81A-160(d)). The record in this case shows that appellant's affidavit was filed after the hearing on appellees' motion for summary judgment along with a verified statement by appellant to the effect that she was out of town from August 2 to August 10 and consequently was unavailable to her attorney in order to prepare and file her affidavit in response to appellees' affidavit. "An affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act from consideration as evidence unless the record discloses the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered." Malone v. Ottinger, 118 Ga.App. 778, 779, 165 S.E.2d 660 (1968). The record discloses no request by appellant for enlargment of time within which to file and serve her affidavit nor was there a finding of excusable neglect in failing to serve the affidavit as provided by the CPA. See Wall v. C. & S. Bank of Houston County, 145 Ga.App. 76(2), 243 S.E.2d 271 (1978); see also Jones v. Howard, 153 Ga.App. 137 (1), 264 S.E.2d 587 (1980). Accordingly, the trial court did not err in failing to consider appellant's affidavit.
Moreover, notwithstanding that the order of the court was physically prepared by appellees prior to their receipt of appellant's amendment to her complaint, there is nothing in the record to indicate that the trial court failed to consider that amendment before ruling on appellees' motion for summary judgment. See Rushing v. Ellis, 124 Ga.App. 621 (1), 184 S.E.2d 667 (1971). "The motion not having been based on a nonamendable defect appearing in the record (Code Ann. § 81A-160(b, d)), the court properly...
To continue reading
Request your trial
-
Mazdak Auto Towing v. Midcontinental Group
...OCGA § 9-11-56(c). Untimely filed affidavits are barred unless the trial court permits them to be considered. Dutton v. Dykes, 159 Ga.App. 48, 49(1), 283 S.E.2d 28 (1981). We decline to hold that the trial court abused its discretion in refusing to consider the affidavits when Mazdak's sole......
-
Hayes v. Murray, 66412
...130, 133, 279 S.E.2d 264 (1981). See OCGA §§ 9-11-6(d) (Code Ann. § 81A-106) and 9-11-56(c) (Code Ann. § 81A-156); Dutton v. Dykes, 159 Ga.App. 48(1), 283 S.E.2d 28 (1981); Liberty Nat. Life Ins. Co. v. Houk, 157 Ga.App. 540(1), 278 S.E.2d 120 (1981). Accordingly, the trial court is authori......
-
Williamson v. Sunshine Oil Co., Inc.
...281 S.E.2d 583 (1981). Where he does not in his discretion choose to consider those untimely filed no error appears. Dutton v. Dykes, 159 Ga.App. 48(1), 283 S.E.2d 28 (1981); Oliver v. Thomas, 158 Ga.App. 388, 280 S.E.2d 416 (1981)." Willingham v. Bridges, 165 Ga.App. 35(1), 299 S.E.2d 392.......
-
Circle H Development, Inc. v. City of Woodstock, A92A1004
...before ruling on appellees' motion for summary judgment," we assume the amendment was properly considered. Dutton v. Dykes, 159 Ga.App. 48, 49(1), 283 S.E.2d 28 (1981). Here, appellants' argument at the hearing on the motion for summary judgment focused almost entirely on the claims contain......