Pugh v. Jones, 49094
| Decision Date | 17 April 1974 |
| Docket Number | No. 1,No. 49094,49094,1 |
| Citation | 206 S.E.2d 650,131 Ga.App. 600 |
| Parties | Nelle PUGH v. T. Ruben JONES et al |
| Court | Georgia Court of Appeals |
Howard, Wiggins & Smith, James C. Howard, Jr., Atlanta, Swertfeger, Scott, Pike & Simmons, M. H. Blackshear, Jr., Richard P. Decker, Decatur, for appellant.
Powell, Goldstein, Frazer & Murphy, Jerry B. Blackstock, Robert M. Travis, Atlanta, for appellees.
Syllabus Opinion by the Court
When a lawyer 1 has the problem of preparing affidavits to be used in support of or for contesting motions, how should he proceed in determining what should be contained in such document? What are the requisites to be satisfied in order for the factual assertions placed therein to be admissible for consideration by the judge in ruling upon the motions? These are the principal questions presented in this appeal by a plaintiff from a judgment sustaining two motions made by defendant: (1) motion to strike plaintiff's affidavits; and (2) motion to dismiss plaintiff's complaint for lack of jurisdiction of the person and for improper venue.
Plaintiff, a licensed real estate broker, sued jointly two landowners, T. Ruben Jones and B. M. Jones, making claim in two counts for commissions allegedly due for breach of contract. Count 1 sought $810,000 damages while the second count pleaded the ad damnum to be $900,000. The suit was filed in Fulton County Superior Court. With respect to jurisdiction and venue, the complaint alleged defendant T. Ruben Jones to be a resident of Fulton County and that the co-defendant, B. M. Jones, was a resident of Paulding County.
Defendants jointly filed defensive pleadings. One of these was a motion pursuant to Code Ann. § 81A-112(b) for dismissal of plaintiff's complaint and entry of judgment in favor of defendants 'on the ground that jurisdiction and venue is improper in Fulton County.' (R. 11). Additionally, in their answer defendants expressly denied the allegation as to the residence of T. Ruben Jones being in Fulton County and asserted as their third defense that (R. 16).
In support of the dismissal motion defendant T. Ruben Jones filed his affidavit wherein he swore that he was a 'resident of and domiciled in Paulding County' on that date and during his life and 'was not a resident of or domiciled in Fulton County' at any time relevant to this litigation. The affiant also recites 'that he resides at Route 4, Dallas, Paulding County, Georgia and that he has his home and permanent legal residence at that location,' which is now and had been for at least five years his permanent mailing address. The affidavit also states he receives his mail at this address, which is also the address 'shown as his permanent legal residence and domicile' on all federal and state income tax returns. Additionally, the affiant swears he is and always has been registered to vote, and did vote, in Paulding County including the 1972 elections, and that he purchased his automobile license tags in that county. The affidavit concludes that it was and has been his continuous intention (R. 18, 19).
In opposition plaintiff submitted two affidavits, one being from herself and the other by her attorney. Plaintiff averred that she has known T. Ruben Jones since 1959, that he has been since 1959 and is now a resident of Fulton County. She details purchases of specific residences in Fulton County negotiated by her wherein he had resided during that period and further stated that defendant presently resides in Fulton County. The affidavit of plaintiff's lawyer set forth that as an attorney with considerable experience in real estate transactions he was familiar with and understood land records. He avers that at plaintiff's instance he made an examination of the Fulton County records involving defendant T. Ruben Jones. This personal examination disclosed T. Ruben Jones filed and claimed homestead exemptions for Fulton County properties from 1966 through 1973. No certified copy of any record is attached nor made a part of this affidavit.
These affidavits were the subject of defendants' motion to strike on the grounds that they were 'conclusory and without basis,' and did not meet the requirements necessary by law to be admissible as evidence.
After a hearing the trial court ordered '. . . that the defendants' motion to strike affidavits is granted, that the defendants' motion to dismiss based upon lack of jurisdiction and improper venue is granted and the plaintiff's complaint is dismissed.' (R. 45). This appeal followed.
1. We first consider whether the trial court erred in dismissing the two affidavits submitted by plaintiff. As to the plaintiff's affidavit there is a fatal flaw in the absence of any denial dealing with defendant's domicile. Whereas defendant's affidavit avers that he is both a resident of and domiciled in Paulding County, the affidavit of plaintiff limits its assertion to the claim that the defendant T. Ruben Jones has his residence in Fulton County.
Odom v. Beard, 114 Ga.App. 364, 151 S.E.2d 468. The affidavit of plaintiff, therefore, is insufficient to rebut the defendant's affidavit in that it does not dispute his domicile recitals.
2. A study of the affidavit of the plaintiff's attorney shows that it does not meet the mandate of Code § 38-203 which provides that...
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Smiley v. Davenport, 52251
...that 'the question of domicile is a mixed question of law and fact, and is ordinarily one for a jury . . .' Pugh v. Jones, 131 Ga.App. 600, 604(4), 206 S.E.2d 650, 653. 2. Petitioner was born and reared in the State of Pennsylvania. There he attended grade and high school, college and medic......
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Dozier v. Baker
...evidence establishes a plain and palpable case. Webb v. Oliver, 133 Ga.App. 555, 557(3), 211 S.E.2d 605 (1974); Pugh v. Jones, 131 Ga.App. 600, 604(4), 206 S.E.2d 650 (1974). Commissioner Baker testified by deposition that his intention in 2003 was to make District Two his permanent residen......
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Webb v. Oliver
...could legally be determined only by the jury. . . . " We recently dealt with this same contention and language in Pugh v. Jones, 131 Ga.App. 600, 604(4), 206 S.E.2d 650. There we pointed out that this does not apply to instances where the evidence clearly establishes a plain and palpable ca......
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Sorrells v. Sorrells, 36634
...legal residence for the purpose of being sued in this state is generally the same county as his or her domicile. See Pugh v. Jones, 131 Ga.App. 600(1), 206 S.E.2d 650 (1974); Code Ch. 79-4; see also Campbell v. Campbell, 231 Ga. 214(1), 200 S.E.2d 899 (1973). " 'There must be a concurrence ......