Sullivan Enterprises, Inc. v. Stockton

164 S.E.2d 336, 118 Ga. App. 542, 1968 Ga. App. LEXIS 1453

• Court: Court of Appeals of Georgia
• Decided: September 13, 1968
• Docket: 43796
• Status: Published

Opinions

Jordan, Presiding Judge.

Appellant’s petition seeks to set aside a deed made under power of sale and to enjoin the defendantappellee 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 SE2d 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 SE 858), citing Hamilton v. Stewart, 108 Ga. 472 (34 SE 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 of 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.

Argued July 3, 1968 Decided September 13, 1968 Rehearing denied October 9 and October 25, 1968. George G. Finch, for appellant.

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.

Deen, J., concurs. Pannell, J., concurs specially.