Property Pickup, Inc. v. Morgan, 38390
| Citation | 249 Ga. 239,290 S.E.2d 52 |
| Decision Date | 06 April 1982 |
| Docket Number | No. 38390,38390 |
| Parties | PROPERTY PICKUP, INC., et al. v. Leon MORGAN, et al. |
| Court | Supreme Court of Georgia |
Thomas A. Travis, Jr., Travis & Davidson, Atlanta, for Property Pickup, Inc., et al.
Louis J. Kirby, Zachry & Kirby, P. C., LaGrange, for Leon Morgan et al. GREGORY, Justice.
This appeal is from the grant of the appellees' motion to dismiss appellants' complaint below. In the complaint appellants sought in equity to have appellees' default judgment set aside. The default judgment declared certain deeds null and void and directed they be cancelled of record.
Appellants alleged the following in their complaint: the appellees filed an action on February 2, 1981 seeking to set aside a quitclaim deed and a deed to secure debt. After service of the action on appellants, appellees' attorney assured appellants that the complaint would be dismissed upon the closing of a real estate transaction between the parties regarding the property conveyed in the deeds under attack. Relying on the assurance of appellees' attorney, appellants expended time, effort and money to complete the construction of a house located on the land in question. In spite of the assurances the attorney proceeded to take a default judgment setting the deeds aside. The effect of the deeds being set aside was to vest title to the land on which the house was constructed in appellees. In separate counts of the complaint the appellants contended that a novation and executory contract existed. They contended fraud was present in the action of appellees taken through their attorney. They contended unjust enrichment occurred because appellees then owned land on which was situated the house, constructed at appellants' expense. Relief was sought in the form of a decree setting aside the default judgment or in the alternative an injunction allowing removal by appellants of the house from appellees' land.
Appellees filed a timely motion to dismiss appellants' complaint on the grounds (1) the complaint failed to state a claim upon which relief could be granted, and (2) the appellants caused the default to occur by their own negligence thus rendering equitable relief inappropriate.
Certain affidavits were later filed by appellees which, had they been considered by the trial court, would have converted the motion to dismiss into a motion for summary judgment. It is clear from the record as a whole, despite certain contrary language in the judgment, that the trial court considered the procedure as a motion to dismiss and not as a motion for summary judgment. The affidavits were not considered. We review the judgment of dismissal in the same light. Had the trial court considered the affidavits, an issue as to timeliness of service of the motion (30 days...
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...would not be entitled to relief under any state of facts that could be proved in support of the claim. [Cits.]" Property Pickup v. Morgan, 249 Ga. 239, 240, 290 S.E.2d 52 (1982). Applying the above standard to appellees' complaint, the trial court did not err by denying the motion to dismis......
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Lathem v. Hestley
...would not be entitled to relief under any state of facts that could be proved in support of the claim." Property Pickup v. Morgan, 249 Ga. 239, 240, 290 S.E.2d 52 (1982). The nonmovant's pleadings must be construed most favorably to him and all doubt resolved in his favor. Alford v. Public ......
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Nicholson v. WINDHAM ET AL.
...19. See Clark v. Arras, 212 Ga.App. 695, 696(2), 443 S.E.2d 277 (1994). 20. (Punctuation omitted.) Id. 21. Property Pickup v. Morgan, 249 Ga. 239, 240, 290 S.E.2d 52 (1982). 22. See Smith v. Germania of America, 249 Ga. App. 587, 588(1), 549 S.E.2d 423 (2001). 23. See Yarbray v. Southern Be......
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Day v. Brown
...be entitled to relief under any state of facts which could be proved in support of his general allegations. See Property Pickup v. Morgan, 249 Ga. 239, 240, 290 S.E.2d 52 (1982). Accordingly, the trial court erred by dismissing the entire complaint. Judgment affirmed in part and reversed in......