Home/Supreme Court of Georgia/Ogden Equipment Co. v. Talmadge Farms, Inc.

Ogden Equipment Co. v. Talmadge Farms, Inc.

208 S.E.2d 459, 232 Ga. 614, 1974 Ga. LEXIS 1028
CourtSupreme Court of Georgia
DecidedSeptember 3, 1974
Docket28790
StatusPublished
Cited by84 cases

This text of 208 S.E.2d 459 (Ogden Equipment Co. v. Talmadge Farms, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ogden Equipment Co. v. Talmadge Farms, Inc., 208 S.E.2d 459, 232 Ga. 614, 1974 Ga. LEXIS 1028 (Ga. 1974).

Opinion

Hall, Justice.

The Court of Appeals has certified the question of *615 whether a motion for summary judgment under Code Ann. § 81A-156 or a motion under Code Ann. § 81A-112 (b), which is treated as one for summary judgment, can be granted on matters in abatement.

Submitted April 5, 1974 Decided September 3, 1974. Scheer & Eisner, Robert A. Eisner, for appellant. Swift, Currie, McGhee & Hiers, Victor A. Cavanaugh, Lewis N. Jones, for appellees.

"Rule 56 contemplates a judgment on the merits, and cannot be properly utilized to raise matter in abatement.” 6 Moore’s Federal Practice 2437, § 56.15[8]. See also 10 Wright and Miller, Federal Practice and Procedure: Civil 402-403, § 2713. "Since a motion for summary judgment is designed to test the merits of the claim, the defenses enumerated in Rule 12 (b) (1) through Rule 12 (b) (5) and Rule 12 (b) (7) generally are not proper subjects for motions for summary judgment... ” 5 Wright and Miller, Federal Practice and Procedure, 676, § 1366. See also 2A Moore’s Federal Practice 2312, § 12.09 and Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 606 (203 SE2d 173). The language to the contrary found in Thompson v. Abbott, 226 Ga. 353, 355 (174 SE2d 904) and Williams v. Williams, 226 Ga. 734 (177 SE2d 481) is overruled.

For the proper procedure in disposing of matters in abatement before trial see Code Ann. §§ 81A-112 (d) and 81A-143 (b).

Certified question answered in the negative.

All the Justices concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Donna Andrews, as the Administrator of the Estate of Johnny L. Fleak v. Blue Ridge Nh Associates, LLC
Court of Appeals of Georgia, 2019
American Radiosurgery, Inc. v. Bruce Rakes
Court of Appeals of Georgia, 2013
American Radiosurgery, Inc. v. Rakes
751 S.E.2d 898 (Court of Appeals of Georgia, 2013)
Patricia Ann Deberry v. Georgia Ann K. Johnson
Court of Appeals of Georgia, 2013
Deberry v. Johnson
747 S.E.2d 886 (Court of Appeals of Georgia, 2013)
Joself Freeman v. Styles Holdings, LLC
Court of Appeals of Georgia, 2012
Shropshire v. Alostar Bank of Commerce
724 S.E.2d 33 (Court of Appeals of Georgia, 2012)
Hawkins v. DeKalb Medical Center, Inc.
721 S.E.2d 131 (Court of Appeals of Georgia, 2011)
City of College Park v. Georgia Interlocal Risk Management Agency
721 S.E.2d 97 (Court of Appeals of Georgia, 2011)
Scanlan v. TATE SUPPLY CO., INC.
692 S.E.2d 684 (Court of Appeals of Georgia, 2010)
First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc.
655 S.E.2d 605 (Supreme Court of Georgia, 2008)
Bryson v. State
638 S.E.2d 181 (Court of Appeals of Georgia, 2006)
Forest City Gun Club v. Chatham County
633 S.E.2d 623 (Court of Appeals of Georgia, 2006)
Davis v. City of Forsyth
621 S.E.2d 495 (Court of Appeals of Georgia, 2005)
Conrad v. Conrad
597 S.E.2d 369 (Supreme Court of Georgia, 2004)
Department of Transportation v. Dupree
570 S.E.2d 1 (Court of Appeals of Georgia, 2002)
Navarro v. Atlanta Casualty Co.
552 S.E.2d 508 (Court of Appeals of Georgia, 2001)
Clark v. BOARD OF REGENTS, UNIV. OF GA.
552 S.E.2d 445 (Court of Appeals of Georgia, 2001)
Georgia Ports Authority v. Harris
533 S.E.2d 404 (Court of Appeals of Georgia, 2000)
Osofsky v. Board of Mayor & Commissioners
515 S.E.2d 413 (Court of Appeals of Georgia, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
208 S.E.2d 459, 232 Ga. 614, 1974 Ga. LEXIS 1028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogden-equipment-co-v-talmadge-farms-inc-ga-1974.