Thompson v. Abbott
| Citation | 226 Ga. 353,174 S.E.2d 904 |
| Decision Date | 23 April 1970 |
| Docket Number | No. 25579,25579 |
| Parties | Mrs. Sidney Elliott THOMPSON v. Emerson ABBOTT et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Appellant's deposition, taken November 23, 1968, was on file with the court below, and transmitted to this Court by the Clerk. It is, therefore, properly before us for consideration.
2. The evidence in this case shows, as a matter of law, that on the date of the accident in question, the appellant had established a Georgia residence, and was not, therefore, amenable to service under the provisions of Code Ann. § 68-801 ().
3. The appellant was not a 'nonresident' within the terms of Code Ann. § 24-113.1 (Ga.L.1966, p. 343), and it was error to deny her motion to dismiss the third party complaint.
O'Kelley, Hopkins & VanGerpen, H. Lowell Hopkins, Benjamin Landey, Atlanta, for appellant.
Robinson, Thompson, Buice & Harben, Emory F. Robinson, Gainesville, Dunaway, Shelfer, Hass & Newberry, William S. Shelfer, Jr., John A. Dunaway, Atlanta, George H. Carley, Charles H. Hyatt, Decatur, for appellees.
This litigation is the result of a three-car automobile accident which occurred on March 1, 1968, about one-half mile north of the Chamblee-Tucker Road on U.S. Highway I-85.
Subsequently, Joe Scales filed a complaint against Emerson Abbott and Miss Sidney Elliott for damages for injuries which he allegedly sustained in this accident as a result of their negligence. Mr. Scales subsequently dismissed his action against Miss Elliott.
Emerson Abbott, the remaining defendant, then was allowed to file a third party complaint against Miss Elliott who had married and become Mrs. Sidney Elliott Thompson. One of these complaints was served on Mrs. Thompson by mail under the provisions of Code Ann. § 68-801 () (The Non-resident Motorist Act). An identical third party complaint was also served on Mrs. Thompson under the provisions of Code Ann. § 24-113.1 (Ga.L.1966, p. 343) (The so-called 'Long-Arm' Statute).
Mrs. Thompson, the appellant here, made a special appearance for the purpose of offering motions to dismiss both third party complaints on the ground that the court lacked jurisdiction over her person.
This appeal is from the denial of those motions.
1. Appellant contends that her deposition taken November 23, 1968, cannot be considered by this Court in passing on this case. The deposition was part of the record sent up to this Court, but appellant points out that nowhere in the record does it show that the deposition was admitted into evidence at the hearing of the motion to dismiss. Appellant cites in support of this argument the cases of Smith v. Continental Casualty Co. et al., 102 Ga.App. 559, 560, 116 S.E.2d 888, and Jackson v. U.S. Fidelity and Guaranty Co. et al., 119 Ga.App. 111, 166 S.E.2d 426. These cases, both of which concern workmen's compensation, stand for the proposition that though a deposition is part of the file sent to a reviewing court, it cannot be considered by that court unless it was introduced into evidence at the hearing below.
Appellant's contention is not meritorious. The decisive factor here is the nature of the proceedings involved.
Appellant's motion is denominated a motion to dismiss. Yet, for purposes of this decision, it will be treated as a motion for summary judgment. The case of Samara v. United States, 9 Cir., 129 F.2d 594(7, 8) holds that, when a motion to dismiss for lack of jurisdiction is supported by affidavits or other materials which set out matter outside the pleadings, such motion can be considered as a motion for summary judgment. While this holding is not binding on us, we consider the rule salutary and adopt it.
The appellant in this case has supported her motion to dismiss the third party complaint for lack of jurisdiction with an affidavit which controverts allegations made in that complaint. In so doing, she has converted her motion into one for summary judgment.
As was mentioned above, the cases cited by appellant to support her contention were workmen's compensation cases. The case of Hodges v. Fidelity & Casualty Co. et al., 105 Ga.App. 273(1), 124 S.E.2d 435 holds that any award returned by a director, deputy director or board, must be accompanied by a statement of the findings of fact from the evidence in the case. This holding necessarily implies that all awards must be supported by at least some evidence. Thus, in order for materials to be considered at a workmen's compensation hearing, they must be introduced into evidence.
The same is not true on a hearing of a motion for summary judgment. Code Ann. § 81A-156(c) (Ga.L.1967, pp. 226, 238) provides that a summary judgment shall be entered, if, '* * * the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact * * *.' Nowhere in the statute is there any requirement that these items be introduced into evidence. In fact, it seems to us, that due to the harsh nature of the remedy involved, a trial judge should always search the entire record before granting a motion for summary judgment, and should not limit himself to the evidence introduced at the hearing.
The deposition here was on file with the court below, and transmitted to this Court by the Clerk. It is properly before us for consideration, and will be considered.
2. The next question presented for decision is whether or not valid service was effected on the third party defendant according to the terms of Code Ann. § 68-801 () which Code section is known as the Non-resident Motorist Act.
The appellant was served with a third party complaint under the terms of this Act. She filed a motion to dismiss this third party complaint alleging in a supporting affidavit that on March 1, 1968, the date of the accident in question, she was a resident of Chamblee, Georgia. The appellant urges that the court below should have found, as a matter of law, that on the date of the accident she was a resident of Georgia, and should, therefore, have granted her motion to dismiss the third-party complaint.
Both parties agree in their briefs that if the appellant was a resident of Georgia at the time of the accident, even though she was a nonresident at the time of the filing of the third party complaint, any service attempted to be made on her under the provisions of the Non-resident Motorist Act, cited above would be void. Young v. Morrison, 220 Ga. 127, 137 S.E.2d 456.
As was pointed out in the first division of this opinion, appellant's motion to dismiss will be treated as a motion for summary judgment. Under the provisions of Code Ann. § 81A-156(c) (Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238) such motion should be granted only, '* * * if the pleadings, depositions, answers to interrogatories, 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.'
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