Kidd v. Unger

• Decision Date: 15 January 1993
• Docket Number: No. A92A1721,A92A1721
• Citation: 427 S.E.2d 82,207 Ga.App. 109
• Parties: KIDD v. UNGER.
• Court: Georgia Court of Appeals

Page 82

427 S.E.2d 82

207 Ga.App. 109

KIDD v. UNGER.

No. A92A1721.

Court of Appeals of Georgia.

Jan. 15, 1993.

Michael O. Horgan, Washington, for appellant.

Jean W. Pierce, Washington, for appellee.

JOHNSON, Judge.

Tommy M. Kidd, "legatee/devisee/creditor" of the estate of Lena E. Kidd filed the following documents with the probate court of Wilkes County: "Notice of Claim of Tommy M. Kidd as Creditor Based Upon Contributions to the Estate and Partnership in a Business Enterprise"; "Petition to Compel Executor to Give Sufficient Bond"; "Petition for Immediate Inventory and Appraisement"; "Notice of Intent to Harvest Timber"; and a "Notice of Ejectment." William Unger, executor of the estate of Lena Kidd did not file responses to these documents but was represented at a hearing regarding these issues. The probate court dismissed Kidd's claim as a creditor, notice to harvest timber and notice of ejectment for lack of jurisdiction. The petitions for bond and inventory were denied.

Kidd filed a notice of appeal to the superior court. Unger filed a motion to dismiss the appeal only with respect to the claim of Kidd as a creditor, asserting that the probate court did not have subject matter jurisdiction over that claim. Prior to receiving a response to the motion to dismiss, the superior court convened a hearing on the issue and dismissed the entire appeal.

1. In this appeal, Kidd contends that the trial court erred in granting Unger's motion to dismiss because he has an absolute right to appeal a ruling of the probate court to the superior court, a right which includes a de novo review and trial by jury. In the appeal filed in the superior court, the court was asked to consider the issue of subject matter jurisdiction with respect to Kidd's claim as a creditor. "Jurisdiction of a court to afford the relief sought is a matter which should be decided preliminarily, at the outset. Jurisdiction either exists or does not exist without regard to the merit of the case. (Cit.)" Whitlock v. Barrett, 158 Ga.App. 100, 103(4), 279 S.E.2d 244 (1981).

The probate court correctly refused to entertain Kidd's claim as a creditor against the estate. "In a proceeding between a representative of the estate and an alleged creditor, the probate court has no jurisdiction to decide an issue as to an alleged indebtedness. [Cits.]" Wausau Ins. Co. v. King, 191 Ga.App. 329, 330, 381 S.E.2d 574 (1989). Even though an action by a creditor against an estate could have been initiated in the superior court, the scope of subject matter jurisdiction is not enlarged upon the appeal of the case to the superior court. Knowles v. Knowles, 125 Ga.App. 642, 645(1), 188 S.E.2d 800 (1972); Walton v. State, 197 Ga.App. 263, 264(1), 398 S.E.2d 221 (1990). Therefore, the superior court did not err in dismissing Kidd's claim as a creditor without conducting a full hearing on the merits of the case.

2. Kidd asserts that the superior court erred in considering the motion to dismiss the appeal without allowing the 30 days anticipated by Uniform Superior Court Rule (USCR) 6.2 for a response to be filed to expire and without citation to supporting authority. USCR 6.2 states that: "Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion." (Emphasis supplied.) The presence of the conditional language in the rule clearly gives the trial judge discretion regarding the period of time by which a party must respond to a motion in a civil case.

In this case it is clear that defendant's motion to dismiss was premised solely on the issue of subject matter jurisdiction, a matter contained wholly within the purview of the pleadings. Since there is no evidence that any matters outside the pleadings were presented, converting the motion to dismiss to a motion for summary judgment, the trial court did not err in failing to allow the 30 days to lapse prior to ruling. See Cohen v. William Goldberg & Co., 202 Ga.App. 172, 182(6), 413 S.E.2d 759 (1991) (in which it was noted that even entry of summary judgment without allowing the full 30 days to respond is not per se reversible error, citing Leverich v. Roddenberry Farms, 253 Ga. 414, 321 S.E.2d 328 (1984); Hart v. Sullivan, 197 Ga.App. 759, 399 S.E.2d 523 (1990)). Similarly, Unger's failure to set forth citations of supporting authorities in...