Peoples Financial Corp. of Rome v. Jones
| Decision Date | 28 April 1975 |
| Docket Number | Nos. 50003,50004,No. 2,s. 50003,2 |
| Citation | 215 S.E.2d 711,134 Ga.App. 649 |
| Parties | PEOPLES FINANCIAL CORPORATION OF ROME v. Chester G. JONES. PEOPLES LOAN & FINANCE CORPORATION OF ROME v. McCLELLAN |
| Court | Georgia Court of Appeals |
Maley & Crowe, M. Douglas Mann, Atlanta, for appellants.
W. Ben Ballenger, Summerville, for appellees.
Syllabus Opinion by the Court
The instant appeals involving the same point of law shall be referred to in the singular and with reference to 50003. The plaintiff brought an action on a contract seeking recovery of principal, interest, attorney fees and court costs. After defendant answered, plaintiff filed a motion for summary judgment on May 1, 1974. Affidavits supporting such motion and in opposition thereto were filed.
Insofar as the record reveals, no hearing was held on this motion. On July 19, 1974, the defendant moved for summary judgment. On August 6, 1974, the trial judge entered a judgment which recited: 'The defendant's motion for summary judgment is, after argument and consideration thereof, hereby granted.' Appeal was then taken to this court. Held:
The parties have stipulated 'that no oral argument was ever heard on any aspect of this case.' The plaintiff argues the judgment was invalid because of the failure to comply with CPA § 56(c) (Code Ann. § 81A-156(c); Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238). That section provides:
Rule 56(c) of Federal Rules of Civil Procedure is identical except 10 days instead of 30 days is specified. As pointed out by cases cited in 6 Moore's Federal Practice 2255, § 56.14(1), it is error to grant a motion for summary judgment without affording the opposite side the time provided or without giving notice or the opportunity to be heard. See Bowdidge v. Lehman, 6 Cir., 252 F.2d 366; Enochs v. Sisson, 5 Cir., 301 F.2d 125; Scott v. Courtesy Inns, Inc., 5 Cir., 472 F.2d 563; Mustang Fuel Corp. v. Youngstown Sheet and Tube Co., 10 Cir., 480 F.2d 607. Since this so obviously comports with the spirit of the Civil Practice Act, we unhesitatingly adopt this interpretation.
Here in a brief filed after the grant of the motion plaintiff's attorney recited: 'At a pretrial hearing counsel for both parties agreed that the question to be decided in this case was the effect of the Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) line of cases on peaceful self-help repossession of personal property pursuant to a contract; and that briefs would be submitted on this question and that the...
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Segrest v. Intown True Value Hardware, Inc.
...opportunity to be heard.' " (Emphasis supplied.) Dixon v. Midland Ins. Co., 168 Ga.App. 319(2), 309 S.E.2d 147; Peoples Fin. Corp. v. Jones, 134 Ga.App. 649, 650, 215 S.E.2d 711; see Leverich, supra; Ga.Prac. & Proc. (5th ed.), Judgments § 23-15. And judgment rendered under such conditions ......
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Wall v. Citizens and Southern Bank of Houston County
...226 S.E.2d 54 (1976)), or 30 days prior to the granting of summary judgment if no hearing is held. Peoples Financial Corp. of Rome v. Jones, 134 Ga.App. 649, 215 S.E.2d 711 (1975). Following the counterpart federal rules it has been flatly held that Rules 56 and 6(d) leave no room for judic......
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Dixon v. Midland Ins. Co.
...affording the opposite side the time provided or without giving notice or the opportunity to be heard." Peoples Financial Corp. v. Jones, 134 Ga.App. 649, 650, 215 S.E.2d 711. Midland argues that appellants must show harm resulting from the trial court's failure to comply with the mandate o......
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Sentry Ins. v. Echols
...have been filed before the deadline, defined in OCGA § 9-11-56(c) as "prior to the day of hearing." Cf. Peoples Financial Corp. v. Jones, 134 Ga.App. 649, 651, 215 S.E.2d 711 (1975). Thus, even though appellant asserts harm as a result of the substantive ruling on its motion, it has offered......