Boyd Motors, Inc. v. Radcliff, 195 S.E.2d 291 (Ga. Ct. App. 1973). · Go Syfert
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Boyd Motors, Inc. v. Radcliff, 195 S.E.2d 291 (Ga. Ct. App. 1973). Cases Citing This Book View Copy Cite
29 citation events (4 in the last 25 years) across 2 distinct courts.
Strongest positive: Larwin Mortg. Investors v. Delta Equities, Inc., 201 S.E.2d 187 (Ga. Ct. App. 1973)
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1973 1999 2026
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128 Ga. App. at 16 Distinguishing matters in abatement from matters in bar1 citing caseArgued November 7, 1972 Decided January 30, 1973. Landau, Davis & Farkas, Leonard J. Spooner, for appellant. Anthony May, Burt, Burt & Rentz, H. P. Burt, for…opening of page *16 (no citing court says what it cites this page for)
  • Larwin Mortg. Investors v. Delta Equities, Inc., 201 S.E.2d 187 (Ga. Ct. App. 1973).published
    The trial court did not err in denying summary judgment to defendant-appellant.” Boyd Motors v. Radcliff 128 Ga. App. 15, 16 ( 195 SE2d 291 ); Hemphill v. Con-Chem, 128 Ga. App. 590 ( 195 SE2d 291 ). 2.
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Boyd Motors, Inc.
v.
Radcliff
47609.
Court of Appeals of Georgia.
Jan 30, 1973.
Published opinion
195 S.E.2d 291
1973 Ga. App. LEXIS 1365
Landau, Davis & Farkas, Leonard J. Spooner, for appellant., Anthony May, Burt, Burt & Rentz, H. P. Burt, for appellee.
Pannell, Hall, Quillian.
Cited by 14 opinions  |  Published
Pannell, Judge.

The defendant-appellant, a Georgia corporation with its principal office in Terrell County, Georgia, which, on June 11, 1971, operated the Albany Speedway in Dougherty County, Georgia, where the cause of action arose, appeals the denial of its motion for summary judgment.

The appeal alleges error in denying summary judgment, averring (1) the appellant is not subject to the jurisdiction of this court on the grounds of improper venue and the lack of jurisdiction over the defendant-appellant; and (2) this defendant-appellant has not been properly served with process even if this court should find that this appellant is subject to the jurisdiction of the Superior Court of Dougherty County, Georgia.

In Knight v. U. S. Fidelity &c. Co., 123 Ga. App. 833 (1) (182 SE2d 693) this court held: "The defenses enumerated in § 12 (b) of the Civil Practice Act except (6), failure to state a claim upon which relief can be granted, are matters in abatement which are not within the scope of the summary judgment procedure, as a motion for summary judgment applies to the merits of the claim or to matters in bar but not to matters in abatement. Code Ann. § 81A-112 (b). Lamax v. Sterling Extruder Corp., 109 Ga. App. 92 (135 SE2d 445); Heyward v. Public Housing Adm., 238 F2d 689; 6 Moore’s Federal Practice, p. 2034, § 56.02 [3]. The objection to the service of process falls within the category of the defense of insufficiency of service of process under § 12 (b) (5) of the Civil Practice Act. Consequently, the court would not be authorized to grant the motion for summary judgment on this ground.”

[*16] Argued November 7, 1972 Decided January 30, 1973. Landau, Davis & Farkas, Leonard J. Spooner, for appellant. Anthony May, Burt, Burt & Rentz, H. P. Burt, for appellee.

In the instant case, both grounds alleged on appeal as a basis for the claim to summary judgment are matters in abatement and not matters in bar; and therefore, are not within the scope of the summary judgment procedure, as a motion for summary judgment applies to the merits of the claim or to matters in bar, but not to matters in abatement. The trial court did not err in denying summary judgment to defendant-appellant.

Judgment affirmed.

Hall, P. J., and Quillian, J., concur.