Hemphill v. Con-Chem, Inc.

• Decision Date: 02 March 1973
• Docket Number: CON-CHE,INC,No. 47877,No. 3,47877,3
• Citation: 197 S.E.2d 457,128 Ga.App. 590
• Parties: H. E. HEMPHILL v
• Court: Georgia Court of Appeals

Page 457

197 S.E.2d 457

128 Ga.App. 590

H. E. HEMPHILL v. CON-CHEM, INC.

No. 47877.

Court of Appeals of Georgia, Division No. 3.

March 2, 1973.

Rehearing Denied March 22, 1973.

Hudson & Montgomery, Jim Hudson, David R. Montgomery, Athens, for appellant.

Erwin, Epting, Gibson & Chilivis, Eugene A. Epting, Athens, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

H. E. Hemphill brought suit in the Superior Court of Madison County against Con-Chem, Incorporated, a nonresident having its office and principal place of business in Los Angeles, California. The complaint was apparently served on defendant under the provisions of the 'Long Arm Statute' (Ga.L.1966, p. 343, as amended; Code Ann. § 24-113.1). Defendant filed its 'Plea to the Jurisdiction,' alleging that it had not transacted any business or committed any other act in Madison County which would give that court jurisdiction over its person.

An affidavit and interrogatories and answers thereto were filed. The trial court considered and ruled upon the plea to the jurisdiction as a motion for summary judgment, taking these papers into consideration. On this basis the court ruled that it had no jurisdiction over defendant, sustained the motion for summary judgment, and dismissed the complaint. Held:

The only question which we deem necessary to consider is whether a jurisdictional type motion is within the scope of the summary judgment procedure. 'The tenor of Rule 56 indicates that the summary judgment procedure deals with the merits; and that if granted in favor of a claimant it affirmatively adjudges the merits of the claim and if in favor of the defendant the judgment is in bar and not in abatement . . . Matter in abatement . . . only results in a dismissal of the action without prejudice; or, if the action is not then dismissed, temporarily stays the prosecution thereof or results in a transfer to another forum. The following illustrate matter in abatement: lack of jurisdiction over the subject matter; lack of jurisdiction over the person; improper venue; insufficiency of process; insufficiency of service of process . . . A dismissal on any one or more of these defenses does not bar a subsequent action in a court of competent jurisdiction . . . The important thing is that a judgment, which is not on the merits, be correctly denominated as one without prejudice . . . In ruling on a motion for summary judgment the court should not resolve any material factual issue.' 6 Moore's Federal Practice § 56.03 (Emphasis supplied.)

Hence in Knight v. United States Fidelity & Guaranty Co., 123 Ga.App. 833(1), 182 S.E.2d 693, where a defendant moved for summary judgment on the ground of insufficiency of service of process, we held: 'The defenses enumerated in § 12(b) of the Civil Practice Act except (6), failure to state a claim upon which relief can be granted, are matters in abatement that are not within the scope of the summary judgment procedure, as a motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement. Code Ann. § 81A-112(b). Lamex v. Sterling Extruder Corp., 109 Ga.App. 92, 135 S.E.2d 445; Heyward v. Public Housing Administration, 5 Cir., 238 F.2d 689; 6 Moore's Federal Practice, p. 2034, § 56.02(3). The objection to the service of process falls within the category of the defense of insufficiency of service of process under § 12(b)(5) of the Civil Practice Act. Consequently, the court would not be authorized to grant the motion for summary judgment on this ground.'

More recently, in Boyd Motors, Inc. v. Radcliff, 128 Ga.App. 15, 195 S.E.2d 291, we held that 'both...