Sullivan Enterprises, Inc. v. Stockton
| Decision Date | 13 September 1968 |
| Docket Number | No. 43796,No. 3,43796,3 |
| Citation | 118 Ga.App. 542,164 S.E.2d 336 |
| Parties | SULLIVAN ENTERPRISES, INC. v. C. O. STOCKTON, Sr |
| Court | Georgia Court of Appeals |
George G. Finch, Atlanta, for appellant.
No appearance for appellee.
Syllabus Opinion by the Court
Appellant's petition seeks to set aside a deed made under power of sale and to enjoin the defendant-appellee Stockton from transferring or alienating the property described therein. Stockton denied all the material allegations of the petition including the allegations that notice as to attorney's fees required by Code Ann. § 20-506 was not given to appellant. The only issue at this stage of the litigation is whether or not the trial court erred in denying the appellant's motion for summary judgment as to its liability for attorney's fees. See opinion of the Supreme Court transferring the case to this Court. Sullivan Enterprises v. Stockton, 224 Ga. 357, 162 S.E.2d 396.
Supporting the motion for summary judgment on this issue is the affidavit of the president and secretary of the corporation that no such notice was received by either of them either prior to the foreclosure and sale on May 2, 1967, or since. Opposing this is the affidavit of the attorney for the appellee Stockton to the effect that such notice in compliance with the statute was given to appellant by a letter dated March 24, 1967, and placed in the U.S. mail to appellant's address with correct postage thereon (a copy of such letter being attached to appellee's answer), following attempts personally and by telephone to collect the instalment due on said note.
Proof that a letter was duly mailed with proper address gives rise to presumption that it was received by the addressee. This is, of course, a rebuttable presumption. Cassel v. Randall, 10 Ga.App. 587, 73 S.E. 858, citing Hamilton v. Stewart, 108 Ga. 472, 34 S.E. 123.
Whether the testimony of two officers of the corporation that such notice was not received by either of them rebuts the presumption that the notice was received by the corporation to whom the notice was addressed is clearly a matter for a jury. Testimony by two officers of the corporation that such notice was not received by either of them is not testimony that the corporation did not receive the notice.
It is of course elementary, as pointed out at length in the special concurrence, that the burden is on the movant for summary judgment to show that there is no issue of material fact for a jury.
The evidence submitted by the defendant clearly shows that the notice was placed in the mail in a letter 'addressed to Sullivan Enterprises Inc., Post Office Box 280, College Park, Georgia, 30022', with correct postage thereon. This vital and material fact is in no way contradicted or refuted by the plaintiff-movant. The burden resting upon movant at this point was to show that this was not the correct address to the corporation or that, if it was the correct address, neither the corporation nor any of its officers or agents ever received the notice. This they utterly failed to do. Since the pleadings and evidence present a substantial issue of fact as to the giving and receipt of the notice, the trial judge did not err in denying the appellant's motion for summary judgment on this issue.
Judgment affirmed.
On motion for rehearing, the appellant have convinced me that the opinion as written is based upon a false premise, not supported by the evidence, and which, if standing unchallenged, would permit the trial of this case upon an erroneous theory as to the presumptions arising from the evidence adduced. Under these circumstances, while I agree with the affirmance, I feel impelled to dissent from the rulings made.
The majority opinion is based upon the premise that the notice of attorney's fees was mailed, properly addressed and directed to the plaintiff corporation generally. Such is not borne out by the facts. There is absolutely no evidence that the address on the envelope in which the notice was mailed is the address of the plaintiff corporation. There must be such proof of the fact before any presumption can arise based upon it. The majority ruling, therefore, is based upon the pure assumption that the mailing address on the envelope was the correct mailing address of the plaintiff corporation. I agree that if this fact had been proven, the only way the presumption of delivery and receipt could have been completely overcome would have been for all of the officers and authorized employees to have testified that no such notice was received, or possibly have had the officers and employees whose duty it was to receive the mail at the particular address to testify that no such mail was received. We do not have that situation here, but we do have a situation where a presumption arose that the notice of attorney's fees was delivered to and received by the secretary of the plaintiff corporation. Paragraph 6 of the defendant's answer alleged: ...
To continue reading
Request your trial
-
Crenshaw v. Georgia Underwriting Ass'n, s. A91A1948
...which like OCGA § 5-6-48(c) requires that action be taken only after actual receipt of the required notice. Sullivan Enterprises v. Stockton, 118 Ga.App. 542, 164 S.E.2d 336 (1968). The clerk's affidavit was sufficient evidence to establish the elements necessary to create a rebuttable pres......
-
Chrysler Credit Corp. v. Barnes
...she mailed a check for the payment on November 10, and Chrysler's position that it did not receive it (see Sullivan Enterprises, Inc. v. Stockton, 118 Ga.App. 542, 164 S.E.2d 336; Watkins Products, Inc. v. England, 123 Ga.App. 179(1), 180 S.E.2d 265, and further pretermitting the effect of ......
-
Watkins Products, Inc. v. England
...25 Ga.App. 20(1), 102 S.E. 358; Ninth District A & M v. Wofford Power Co., 37 Ga.App. 271(3), 139 S.E. 916; Sullivan Enterprises v. Stockton, 118 Ga.App. 542, 546, 164 S.E.2d 336. Next, although movant had not shown that it had given the defendant a notice of his right to return salable mer......
-
Vines v. Citizens Trust Bank
...to the bank. The bank, relying upon Edmondson v. Air Service Co., 123 Ga.App. 263(2), 180 S.E.2d 589; Sullivan Enterprises, Inc. v. Stockton, 118 Ga.App. 542, 164 S.E.2d 336; Canal Ins. Co. v. Tate, 111 Ga.App. 377, 384, 141 S.E.2d 851, contends that a legal presumption arises that the lett......