Studstill v. Aetna Cas. & Sur. Co., 38168

• Decision Date: 06 June 1960
• Docket Number: No. 1,No. 38168,38168,1
• Citation: Studstill v. Aetna Cas. & Sur. Co., 115 S.E.2d 374, 101 Ga.App. 766 (Ga. App. 1960)
• Court: Georgia Court of Appeals
• Parties: J. T. STUDSTILL v. AETNA CASUALTY & SURETY COMPANY

Page 374

115 S.E.2d 374

101 Ga.App. 766

J. T. STUDSTILL v. AETNA CASUALTY & SURETY COMPANY.

No. 38168.

Court of Appeals of Georgia, Division No. 1.

June 6, 1960.

Syllabus by the Court

1. Remedial statutes are not inoperative, although of a retrospective nature, provided they do not impair contracts, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.

2. The purpose of the Summary Judgment Act is to afford to either party litigant, upon motion, to a judgment forthwith if the record shows there is not a genuine issue existing between the parties, but only after each party has had opportunity to make out his case, or establish his defense, as the case may be, and where, as in this case, if plaintiff in error, at the time of the hearing on the motion for summary judgment, had any valid defenses, it was his duty to present same at that time.

On February 20, 1959, Aetna Casualty & Surety Company filed suit to recover the balance due on a promissory note, as transferee, in the amount of $8,942.27, against J. T. Studstill, d/b/a Americus Provision Company. On February 24, 1959, the defendant filed his answer denying said indebtedness and the plaintiff filed a garnishment, affidavit and bond naming J. T. Studstill, d/b/a Americus Provisions Company, as defendant and Citizens Bank of Americus as garnishee. The defendant then filed a garnishment dissolution bond in the amount of 8,942.27. On April 23, 1959, the plaintiff filed its motion for summary judgment based on its petition, its and the defendant's depositions and affidavits and other documentary evidence. On May 12, 1959, the plaintiff offered an amendment to its petition which was allowed by the court and subsequently filed in the clerk of the superior court's office on May 14, 1959. On June 6, 1959, the defendant offered and filed with the approval of the court, subject to demurrer, an amendment, and on the same date a hearing was had on the plaintiff's motion for summary judgment and evidence by affidavit and depositions was offered by both parties in support of and in opposition to said motion. On October 8, 1959, after having heard evidence in the form of affidavits and depositions by both plaintiff and defendant, as well as arguments of counsel for all parties, the trial court did enter an order granting summary judgment in favor of the plaintiff in the amount sued for on the note.

To said order and judgment of the trial court defendant excepts, assigns error on same and brings the case here for review.

Hollis Fort, Americus, for plaintiff in error.

H. B. Williams, Americus, H. P. Burt, Burt & Burt, Albany, for defendant in error.

NICHOLS, Judge.

1. The plaintiff in error contends that the trial court erred in granting the motion for summary judgment since the original petition was filed on February 20, 1959, which was some 25 days prior to the approval of the Summary Judgment Act, Code, § 110-1208, on March 17, 1959, and the Summary Judgment Act could not be applicable in the case at bar, but rather the case can only proceed under the laws of procedure as they existed as of February 20, 1959. 'The rule with reference to retrospective statutes has been repeatedly held by this court to be limited to substantive rights and not to the remedy. In Knight v. Lasseter, 16 Ga. 151, 153, it was held: 'For the purpose of operating on the remedy only, the legislature may, undoubtedly, pass retrospective acts; and for such purposes, they are not unconstitutional.' In Searcy v. Stubbs, 12 Ga. 437, 439, it was held : 'Remedial statutes are not inoperative, although of a retrospective nature, provided they do not impair contracts, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations'.' Walker Elec. Co. v. Walton, 203 Ga. 246, 46 S.E.2d 184, 187. The Summary Judgment Act being remedial in nature is not, although retrospective, inoperative, and clearly falls within the purview of the above-quoted authority. This contention of the plaintiff in error is therefore without merit.

2. The plaintiff in error in his brief argues that there are genuine issues of fact between the parties that should be submitted to a jury. He contends that under the record in the case, and particularly in defendant's (plaintiff in error here) own deposition he states 'that part of his payments were to go for insurance premiums,' and he asserts further in his brief that he 'could prove same, while the depositions of Mr. Apfel witness for plaintiff in the trial court) states definitely that the defendant did not pay any part of this premium.' Section 3 of the Summary Judgment Act, Code, § 110-1203, provides: 'The motion shall be served at least thirty days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, but nothing in this Act shall be construed as denying to any party the ritht to...