International Systems, Inc. v. City of Jackson

• Court: Georgia Court of Appeals
• Writing for the Court: McMURRAY; QUILLIAN, C. J., and POPE
• Citation: International Systems, Inc. v. City of Jackson, 288 S.E.2d 344, 161 Ga.App. 423 (Ga. App. 1982)
• Decision Date: 26 February 1982
• Docket Number: No. 62530,62530
• Parties: INTERNATIONAL SYSTEMS, INC. v. CITY OF JACKSON.

Page 344

288 S.E.2d 344

161 Ga.App. 423

INTERNATIONAL SYSTEMS, INC. v. CITY OF JACKSON.

No. 62530.

Court of Appeals of Georgia.

Feb. 26, 1982.

J. Ralph McClelland, III, Marietta, for appellant.

Robert E. Flournoy, III, Marietta, for appellee.

McMURRAY, Presiding Judge.

This action began in this state as one to domesticate a foreign judgment obtained in the State of Tennessee, the parties plaintiff and defendant being the same in that state. Attached to the pleadings was a copy of the foreign judgment. However, it was not duly authenticated. The defendant, International Systems, Inc., answered, inter alia, denying the claim, the failure to plead the statutory law of the foreign jurisdiction, the judgment was void inasmuch as the contract on which it was based was executed in the State of Georgia and the lex loci was in the State of Georgia, hence the foreign judgment is null and void and unenforceable on its face due to the lack of jurisdiction of the parties, and therefore, it is not entitled to the full faith and credit as a foreign judgment in this state.

Plaintiff, City of Jackson, then moved for judgment on the pleadings, and the trial court entered an order that plaintiff "having introduced documents outside the pleadings" the same was converted to a motion for summary judgment, and the defendant was given 30 days to file documents in opposition to same. Defendant then moved for summary judgment, and the case came on for a hearing on September 9, 1980, as recited in the final order of the trial court dated December 15, 1980, in which the trial court held there was no genuine issue of material fact and the plaintiff was entitled to judgment as a matter of law, thereby granting plaintiff's motion and denying defendant's. Defendant appeals. Held :

1. This case is somewhat similar to City of Buford v. International Systems, Inc., 158 Ga.App. 682, 282 S.E.2d 165, with reference to the type of contract but not as to the issue involved in the case sub judice.

We find no evidence introduced with the motion for judgment on the pleadings. However, after the record and transcript were filed in this court a supplemental transcript of evidence was presented for consideration with reference to the exemplified copy of the Tennessee proceedings and the Tennessee statutes, the trial court stating in its order to complete the record that same was "provided by the Plaintiff ... at the hearing of the Motion for Summary Judgment in the above styled case on September 9, 1980, and accepted by the Court." This order was dated July 20, 1981, and filed for record on the same date. Attention is here called to the fact that the purpose of summary judgment is set forth in Code Ann. § 81A-156 (Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759) which provides that the motion shall be served at least 30 days before the time fixed for the hearing, the adverse party allowed to serve opposing affidavits at least one day prior to the hearing, and the judgment thereon should be rendered forthwith, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no general issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Under the circumstances it would appear that the evidence which the trial court seeks to have this court consider, that is, the exemplified copy of the Tennessee proceedings and the statutes were "provided," as recited in the trial court's order, on the date of the hearing of the motion for summary judgment and filed for the first time in the trial court on July 20, 1981, after the record was forwarded to this court, hence could not be considered as a basis for the granting of the motion for summary judgment. See in this connection Gunter v. National City Bank, 239 Ga. 496, 497, 238 S.E.2d 48; Culwell v. Lomas & Nettleton Company, 148 Ga.App. 478, 479, 251 S.E.2d 579; Ravan v. Stephens, 243 Ga. 289, 253 S.E.2d 753; Victor v. First Trust & Deposit Company, 154 Ga.App. 97, 267 S.E.2d 639; Jones v. Howard, 153 Ga.App. 137, 264 S.E.2d 587. Consequently, this court cannot consider the supplemental transcript filed in the trial court as ordered by it on July 20, 1981, the case having been already docketed in this court on June 15, 1981, particularly since the trial court stated that this evidence was "provided" (which word "provided" was substituted for the word "introduced") at the hearing on motion for summary judgment and has never been a part of the record until July 20, 1981.

All of the enumerations of error here are concerned with alleged errors in the grant of the motion for summary judgment as containing the Tennessee judgment and proceedings sued upon which were not properly certified nor placed in evidence in this case, contending same was not properly introduced and also contending the trial court erred in denying the motion for summary judgment of the defendant as well. On motion for summary judgment the burden of proof is on the moving party and does not shift to the respondent until a prima facie right to such judgment is shown. See Columbia Drug Company v. Cook, 127 Ga.App. 490, 194 S.E.2d 286; Stephens County v. Gaines, 128 Ga.App. 661(1), 197 S.E.2d 424; Ramseur v. American Management Association, 155 Ga.App. 340, 270 S.E.2d 880. The attempt to perfect the record and prove the judgment sued upon after the appeal was...