Newsrack Supply, Inc. v. Heinle
| Decision Date | 22 January 1973 |
| Docket Number | No. 47538,No. 2,47538,2 |
| Citation | 195 S.E.2d 193,127 Ga.App. 843 |
| Parties | NEWSRACK SUPPLY, INC. v. Carl HEINLE, Jr |
| Court | Georgia Court of Appeals |
Robert W. Allen, Covington, for appellant.
Syllabus Opinion by the Court
1. On the hearing on the motion to dismiss the complaint because of failure to state a claim, evidence was introduced and admitted by the court, converting the motion to dismiss to one of summary judgment. Kell v. Georgia Power Co., 124 Ga.App. 237, 183 S.E.2d 511; Daylight Industries, Inc. v. Allen, 123 Ga.App. 69, 179 S.E.2d 542. The overruling of the motion, therefore, was the overruling of a motion for summary judgment and there being (a) no direct appeal from that judgment, nor (b) a proper certificate for review, this court is without jurisdiction to pass upon the enumeration of error complaining of such denial. Moulder v. Steele, 118 Ga.App. 87(3), 162 S.E.2d 785; State Highway Dept. v. Kirchmeyer, 123 Ga.App. 185, 187, 179 S.E.2d 693; Rustin Oldsmobile, Inc. v. Kendrick, 123 Ga.App. 679(1), 182 S.E.2d 178.
2. There is no right to a certificate of review to the overruling of a motion for summary judgment. Whether or not such certificate be granted rests solely with the trial judge, and his refusal is not reviewable by this court.
3. An enumeration of error that the court erred (after directing a verdict against plaintiff's claim for attorneys fees and damages based upon alleged bad faith and stubborn litigiousness on the part of the defendant, and against the defendant on his counterclaim for storage of items purchased after an alleged rescision of the purchase by the defendant) 'in not directing a verdict in this case for appellant, the evidence showing that a judgment could not be legally had by the appellee under the appellate decisions of this State,' cannot be considered, there having been no motion made to direct a verdict in favor of the appellant as against the plaintiffs action for the purchase price of certain machinery, nor can such enumeration of error on the failure of the court to direct a verdict be considered an enumeration of error that the evidence does not authorize a verdict, nor can it be considered an enumeration of error that the judgment entered on the verdict was unauthorized for lack of evidence to support the verdict. And there being no such enumeration of error, we do not rule upon the sufficiency of the evidence to support the verdict.
4. There were two major issues in this, (a) whether the sale by the plaintiff of certain machinery to an individual for a consideration partly cash to be paid and partly in stock of a corporation (the defendant) to be subsequently formed was rescinded by the individual purchaser, and (b) whether the corporation subsequently formed by melting' with the former trade name business did subsequently ratify and affirm the contract for the purchase of certain machinery. The trial judge in charging the jury assumed that if a contract...
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Mullins v. Belcher
...to one for summary judgment. Compare Levine v. First Bank of Savannah, 154 Ga.App. 730 (1), 270 S.E.2d 20; Newsrack Supply, Inc. v. Heinle, 127 Ga.App. 843, 195 S.E.2d 193. The attachment of an exhibit to the brief in response to the motion to dismiss did not convert that motion to one for ......
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Thrift v. Maxwell, 63261
...motion to dismiss for failure to state a cause of action) as in actuality a grant of a motion for summary judgment. Newsrack Supply v. Heinle, 127 Ga.App. 843, 195 S.E.2d 193. 2. The trial court properly granted summary judgment as to Count 1. Thrift brought his action based upon a personal......
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...Morgan, 235 Ga. 1(I), 218 S.E.2d 764; Unigard Ins. Co. v. Kemp, 141 Ga.App. 698(4), 234 S.E.2d 539. See also Newsrack Supply, Inc. v. Heinle, 127 Ga.App. 843(1), 195 S.E.2d 193. Since plaintiff has not asserted on appeal (nor did she complain below) that she was not timely served with a mot......
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Levine v. First Bank of Savannah
...evidence was introduced and admitted by the court. This converted the motion to a motion for summary judgment. Newsrack Supply v. Heinle, 127 Ga.App. 843, 195 S.E.2d 193. The counterclaim asserted a breach of contract but there was absolutely no evidence before the court of anything more th......