Frost v. Gasaway, 27268

• Citation: 190 S.E.2d 902,229 Ga. 354
• Decision Date: 28 June 1972
• Docket Number: No. 27268,27268
• Parties: Ruby Brown FROST v. Daniel F. GASAWAY et al.
• Court: Georgia Supreme Court

Page 902

190 S.E.2d 902

229 Ga. 354

Ruby Brown FROST v. Daniel F. GASAWAY et al.

No. 27268.

Supreme Court of Georgia.

June 28, 1972.

Rehearing Denied July 27, 1972.

Spivey & Carlton, Milton A. Carlton, Charles B. Merrill, Jr., Swainsboro, for appellant.

John A. Darsey, Commerce, Erwin, Epting, Gibson & Chilivis, Nickolas P. Chilivis, Athens, H. W. Davis, Davis & Davidson, Jefferson, Heyman & Sizemore, Atlanta, W. Dan Greer, Richardson, Chenggis & Constantinides, Platon P. Constantinides, Chamblee, for appellees.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

This appeal is from the following judgment of the trial court: 'The within and foregoing case coming on regularly and to be heard on plaintiff's motion for summary judgment and it being agreed by counsel for all parties that the court consider the defenses of defendants Daniel F. Gasaway and Administrator of Veterans Affairs of failure to state a claim and res judicata, and the parties having stipulated certain evidence concerning these defenses, after hearing argument of counsel, the stipulation of the parties and evidence, it is hereby considered ordered and adjudged as follows: 1. The first and third defenses of defendants Gasaway and Administrator of Veterans Affairs are hereby sustained. . . .' Held:

The trial court's judgment showed that he considered 'the stipulation of the parties and the evidence.' Therefore the motion to dismiss for failure to state a claim was converted into a motion for summary judgment. Code Ann. § 81A-112(b) (Ga.L.1966, pp. 609, 622; 1967, pp. 226, 231). The record does not contain the stipulation of the parties or the evidence. This court is unable to review the ruling on the motion for summary judgment since we do not have before us the facts which were considered by the trial court. Smith v. Smith, 223 Ga. 795(2), 158 S.E.2d 679; Herring v. Herring, 228 Ga. 492, 186 S.E.2d 538.

In a supplemental brief filed in this court the appellant contends that he requested the trial court clerk to forward to this court all of the record and the depositions of the witnesses. Attached to his brief is a copy of a letter from the trial court clerk seeking direction on whether certain 'sealed' depositions should be forwarded to this court. A copy of a letter from the trial court judge to the clerk states that counsel for the appellant 'made a statement of fact to the court and counsel for each of the other parties made brief statements and all agreed that there was no dispute between them concerning the facts and the court based its decision upon the agreed statement of facts presented by counsel. I, therefore, respectfully request that the depositions not be made a part of the record as they were not considered by the court when it made its decisions.'

Judgment affirmed.

All the Justices concur.

HAWES, J., concurs specially.

HAWES, Justice (concurring specially).

I concur in the judgment of affirmance in this case solely because, as noted in the majority opinion, the record as transmitted to this court is insufficient to enable us to determine whether the judgment of the trial court is correct or not. However, the record does reveal from the pleadings that Mrs. Frost held a deed to secure debt executed by a remote grantor of the defendants. That deed which was executed in October of 1958 was duly and properly recorded in the office of the Clerk of the Superior Court of Jackson County. In February of 1964, a cancellation of that deed was entered on the face of the record. Thereafter, in July of 1964, the maker of the deed to secure debt executed a warranty deed to a Mrs. Wilson who, in September of 1967, conveyed the property by warranty deed to the defendant Gasaway. On the same date, Gasaway transferred the property to the Veterans Administration as security for a loan. The record shows that after the cancellation of the original security deed to Mrs. Frost was entered on the record, the debtor continued to pay annual instalments of interest due on the deed up until his death, and even after he had conveyed the property to Mrs. Wilson. It seems to be beyond dispute that the cancellation on the record of the security deed to Mrs. Frost was a fraudulent cancellation. If does not appear that the clerk of the superior court is able to throw any light on the matter...