Omark Industries, Inc. v. Alewine

Court of Appeals of Georgia

Omark Industries, Inc. v. Alewine

298 S.E.2d 259, 164 Ga. App. 397, 1982 Ga. App. LEXIS 2811

CourtCourt of Appeals of Georgia

DecidedNovember 15, 1982

Docket65084

StatusPublished

Cited by4 cases

This text of 298 S.E.2d 259 (Omark Industries, Inc. v. Alewine) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Omark Industries, Inc. v. Alewine, 298 S.E.2d 259, 164 Ga. App. 397, 1982 Ga. App. LEXIS 2811 (Ga. Ct. App. 1982).

Pincite

Opinion

Banke, Judge.

We granted an interlocutory appeal in this products liability case to review the denial of the defendants’ motion for summary judgment. The plaintiff alleged in his complaint that he was injured as the proximate result of a defect in a hydraulic loader manufactured by the defendants. It appears from the briefs and from a reference in an affidavit contained in the record that the plaintiff died subsequent to filing suit but prior to the denial of the motion for summary judgment. However, no suggestion of death has been formally entered upon the record, and no one has been substituted to pursue the action in the plaintiffs place. Held:

The death of a party to a pending action automatically suspends the action as to that party until someone is substituted for him; and, until such substitution occurs, further proceedings in the case are void as to that party. South DeKalb &c. YMCA v. Frazier, 236 Ga. 903, 905 (225 SE2d 890) (1976); Eubank v. Barber-Colman Co., 115 Ga. App. 217 (1) (154 SE2d 638) (1967); Tarpley v. Hawkins, 144 Ga. App. 598 (241 SE2d 480) (1978). See generally Code Ann. §§ 3-501; 3-508; 81A-125 (a). It appearing that the plaintiff was not living at the time the motion for summary judgment was ruled on, the trial court’s order is vacated, and the case is remanded for clarification of the plaintiffs status.

Judgment vacated and case remanded.

McMurray, P. J., and Birdsong, J., concur.

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Banke, Judge.

We granted an interlocutory appeal in this products liability case to review the denial of the defendants’ motion for summary judgment. The plaintiff alleged in his complaint that he was injured as the proximate result of a defect in a hydraulic loader manufactured by the defendants. It appears from the briefs and from a reference in an affidavit contained in the record that the plaintiff died subsequent to filing suit but prior to the denial of the motion for summary judgment. However, no suggestion of death has been formally entered upon the record, and no one has been substituted to pursue the action in the plaintiffs place. Held:

The death of a party to a pending action automatically suspends the action as to that party until someone is substituted for him; and, until such substitution occurs, further proceedings in the case are void as to that party. South DeKalb &c. YMCA v. Frazier, 236 Ga. 903, 905 (225 SE2d 890) (1976); Eubank v. Barber-Colman Co., 115 Ga. App. 217 (1) (154 SE2d 638) (1967); Tarpley v. Hawkins, 144 Ga. App. 598 (241 SE2d 480) (1978). See generally Code Ann. §§ 3-501; 3-508; 81A-125 (a). It appearing that the plaintiff was not living at the time the motion for summary judgment was ruled on, the trial court’s order is vacated, and the case is remanded for clarification of the plaintiffs status.

Judgment vacated and case remanded.

McMurray, P. J., and Birdsong, J., concur.

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298 S.E.2d 259, 164 Ga. App. 397, 1982 Ga. App. LEXIS 2811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omark-industries-inc-v-alewine-gactapp-1982.

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