Hayes v. Superior Leasing Corp., 51069

• Decision Date: 09 October 1975
• Docket Number: No. 51069,No. 3,51069,3
• Citation: 220 S.E.2d 86,136 Ga.App. 98
• Parties: Nancy HAYES v. SUPERIOR LEASING CORPORATION
• Court: Georgia Court of Appeals

Page 86

220 S.E.2d 86

136 Ga.App. 98

Nancy HAYES v. SUPERIOR LEASING CORPORATION.

No. 51069.

Court of Appeals of Georgia, Division No. 3.

Oct. 9, 1975.

Syllabus by the Court

On July 22, 1974, appellee filed its complaint in which appellant was named as defendant. Appellant was a resident of Georgia at the time of the automobile accident which was the basis for the suit but had allegedly moved to New York by the time service was made upon her mother, a Georgia resident, on September 9, 1974. Appellant answered on October 8, 1974, and included in her answer the defenses of lack of jurisdiction over the person, improper venue and improper service of process. Appellant subsequently moved for summary judgment, later amended to motion to dismiss, on the three grounds included in her answer. The trial judge denied the motion for the reason that it was not timely filed under Code Ann. § 81A-112(b). Appellant appeals from this order pursuant to a certificate of immediate review.

Neely, Freeman & Hawkins, Richard P. Schultz, Atlanta, for appellant.

William O. Green, Jr., Austell, Luther, Anderson, Ruth & Cleary, Samuel R. Anderson, Chattanooga, Tenn., Brown, Harriss & Hartman, Rossville, Rogers, Magruder & Hoyt, Rome, for appellee.

DEEN, Presiding Judge.

Under Code Ann. § 81A-112(b) every defense to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if one is required, except that certain specified defenses may be raised by motion. Included among these motion defenses are the three urged by appellant. Code Ann. § 81A-112(b)(2), (3) and (5). The only limitation on raising these defenses by motion is that they must be made before or at the time of pleading if a further pleading is permitted; there the applicable time limit is within the 30 days given to serve the answer. Code Ann. § 81A-112(a). Of course the pleader may choose at his option to forgo the opportunity to raise his defenses by motion and to include them in his responsive pleading; here the responsive pleading was the answer, which was due within 30 days from the time of service of the complaint and summons. Code Ann. § 81A-112(a). Whether the defendant wishes to raise his defense by motion or by answer, he is given 30 days within which to do so. If he fails to do either, he may waive his defense under the applicable rules of Code Ann. § 81A-112(g) and (h). Appellant did not waive her defenses; she chose to include them in her answer rather than to raise them by a preanswer motion. Later, after the pleadings were closed, the motion to dismiss was made. The question here therefore is whether the defenses enumerated in Code Ann. § 81A-112(b) when included in the answer may be subsequently raised by a motion to dismiss.

The choice of whether to raise the § 81A-112(b) defenses by motion or by answer is entirely at the option of the pleader. If the choice is to proceed by motion, it must be made before or at the time of the responsive pleading. The applicable time limit here is the 30-day period before the answer was due. After that 30 days the pleadings were closed and any motion to dismiss thereafter would not have been made 'before or at the time of pleading.' In the case sub judice appellant had 30 days in which to make her motion to dismiss; she allowed that time to elapse without making her motion, choosing to raise her defenses in her answer, as she was permitted to do. However the time having passed within which a motion might have been made, appellant cannot now bring such a motion under Code Ann. § 81A-112(b). The proper procedure to be followed when the defense is made by answer is application for a preliminary hearing and determination under Code Ann. § 81A-112(d). Howland v. Weeks, 133 Ga.App. 843(3), 212 S.E.2d 487.

Nothing in Southern Concrete Company v. Carter Construction Company, Inc., 121 Ga.App. 573, 174 S.E.2d 447, relied upon by appellant, is contrary to what we hold here. That case deals with waiver and notes that Code Ann. § 81A-112(h) makes the defenses of failure to state a claim, failure to join an indispensable party and failure to state a legal defense to a claim unwaiverable, whether or not they were raised by motion or by answer. All we hold here is that when the choice is made to make the enumerated defenses of Code Ann. § 81A-112(b) by answer, a motion to dismiss on the same grounds cannot thereafter be brought but that the proper procedure is application for a preliminary hearing under Code Ann. § 81A-112(d).

We are aware of the interpretation of the comparable federal rule in Majerus v. Walk, 275 F.Supp. 952 (D.Minn.1967) which reaches a different result than we do here. That case however holds that the literal wording of the statute appears to prohibit a motion to dismiss which is made subsequent to the filing of an answer which contains the same defenses. It is true that in interpreting our Civil Practive Act federal cases, while not binding precedent, will be considered as persuasive authority. Poole v. City of Atlanta, 117 Ga.App. 432(2), 160 S.E.2d 874. We are persuaded however by the commentators that this case fails to take into account the provision for preliminary hearings, found in our Code Ann. § 81A-112(d), and that the result we reach here is the preferred interpretation. 2A Moore's Fed. Practice, 2245 § 12.05.

We would be...