Ham v. Ham, 195 S.E.2d 429 (Ga. 1973). · Go Syfert
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Ham v. Ham, 195 S.E.2d 429 (Ga. 1973). Cases Citing This Book View Copy Cite
140 citation events across 2 distinct courts.
Strongest positive: Lane v. Tift County Hospital Authority (gactapp, 1997-09-17)
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discussed Cited as authority (rule) Lane v. Tift County Hospital Authority
Ga. Ct. App. · 1997 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden.” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973); see also Sawgrass Builders v. Key, 212 Ga. App. 138 ( 441 SE2d 99 ) (1994); Huntington v. Fishman, 212 Ga. App. 27, 29-31 ( 441 SE2d 444 ) (1994).
cited Cited as authority (rule) SAWGRASS BUILDERS, INC. v. Key
Ga. Ct. App. · 1994 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden.” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) First Rome Bank v. Reese Oil Co.
Ga. Ct. App. · 1992 · confidence medium
(T)he moving party’s papers are carefully scrutinized, while the [opponent’s] papers, if any, are treated with considerable indulgence.’ Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).” First Union Nat.
discussed Cited as authority (rule) Malak v. First National Bank
Ga. Ct. App. · 1990 · confidence medium
Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973). “ ‘[T]he party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.’ ” Eiberger v. West, 247 Ga. 767, 769 (1) ( 281 SE2d 148 ) (1981).
discussed Cited as authority (rule) Rucker v. Allstate Insurance (2×)
Ga. Ct. App. · 1990 · confidence medium
Under these circumstances, we cannot say as a matter of law that Allstate met its burden of showing that the insureds’ delay in giving notice of the collision “was unjustified and unreasonable.” See Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
discussed Cited as authority (rule) Boss v. Food Giant, Inc.
Ga. Ct. App. · 1989 · confidence medium
Although the burden would be on the appellant to present such evidence at trial in order to establish a prima facia case based on the constructive knowledge theory, “[o]n a motion for summary judgment, the burden of establishing the non-existence of any genuine issue of fact is upon the moving party . . . even as to issues upon which the opposing party would have the trial burden. . . .” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) First Union National Bank v. J. Reisbaum Co. (2×)
Ga. Ct. App. · 1989 · confidence medium
(At the hearing on the summary judgment motion, the appellant attempted to submit an affidavit from Sweats’ president in support of its nonconformity defense, but the court granted a motion by Reisbaum to strike this affidavit as untimely.) Held: “On a motion for summary judgment, the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. . . . [T]he moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” Ham v. H…
discussed Cited as authority (rule) Baldwin County Hospital Authority v. Coney (2×)
Ga. Ct. App. · 1988 · confidence medium
Although it is axiomatic that “[o]n a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant,” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973), exactly what facts the movant must rebut can only be determined by reference to what particular facts have been pleaded or otherwise shown by the record in each individual case.
discussed Cited as authority (rule) Thomas B. Hartley Construction Co. v. Liberty Life Insurance (2×)
Ga. Ct. App. · 1988 · confidence medium
See generally OCGA § 9-11-56; Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973). *854 Moreover, a different result would not be compelled in this case even if the burden of proof were on the appellant, for our holding is based not merely on the appellee's failure to come forward with evidence from which it could be inferred that the earnest money payment reflected a reasonable pre-estimate of the amount of its expected loss in the event of a breach but also upon the appellant's affirmative showing that the appellee actually benefited from the breach.
discussed Cited as authority (rule) Williams v. Crawford (2×)
Ga. Ct. App. · 1988 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) Shiver v. Singletary (2×)
Ga. Ct. App. · 1988 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party's papers are carefully scrutinized, while the opposing party's papers, if any, are treated with considerable indulgence." Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
cited Cited as authority (rule) Gaylor v. Jay & Gene's Chrysler-Plymouth-Dodge, Inc.
Ga. Ct. App. · 1987 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden. . . .” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) Lynch v. Waters (2×)
Ga. Ct. App. · 1986 · confidence medium
"The movant has that burden even as to issues upon which the opposing party would have the trial burden. . . ." Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
cited Cited as authority (rule) Cunningham v. National Service Industries, Inc.
Ga. Ct. App. · 1985 · confidence medium
Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
cited Cited as authority (rule) Bradbury v. Writing Sales, Division of Matex, Inc.
Ga. Ct. App. · 1985 · confidence medium
The mo-vant has that burden even as to issues upon which the opposing party would have the trial burden . . .” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) Whiddon v. O'NEAL
Ga. Ct. App. · 1984 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.’ Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).” Gilbert v. Decker, 165 Ga. App. 11, 12 ( 299 SE2d 65 ) (1983).
discussed Cited as authority (rule) Gregory v. Trupp
Ga. Ct. App. · 1984 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. [Cit.]” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
discussed Cited as authority (rule) Freeman v. Pumpco, Inc.
Ga. Ct. App. · 1983 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.’ [Cit.] Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).” Thebaut v. McCloskey Varnish Co., 162 Ga. App. 651, 652 ( 291 SE2d 398 ) (1982).
cited Cited as authority (rule) Klorer-Willhardt, Inc. v. Martz
Ga. Ct. App. · 1983 · confidence medium
See generally OCGA § 9-ll-56(c) (Code Ann. § 81A-156); Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) Jones v. Rodzewicz
Ga. Ct. App. · 1983 · confidence medium
Since “the opposing party’s papers, if any, are treated with considerable indulgence” (Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 )), and since appellee’s affidavit may provide a sufficient factual basis for the opinion offered by *638 appellant, that opinion, if construed in appellant’s favor, creates a material issue of fact as to appellee’s alleged negligence in his diagnosis and treatment of appellant.
discussed Cited as authority (rule) Gilbert v. Decker
Ga. Ct. App. · 1983 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) Thebaut v. McCloskey Varnish Co. (2×)
Ga. Ct. App. · 1982 · confidence medium
Colonial Stores v. Turner, 117 Ga. App. 331 ( 160 SE2d 672 ).” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
cited Cited as authority (rule) Voliton v. Piggly Wiggly
Ga. Ct. App. · 1982 · confidence medium
Colonial Stores v. Turner, 117 Ga. App. 331 ( 160 SE2d 672 ).” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
cited Cited as authority (rule) Wahlquist v. Lanier Business Products, Inc.
Ga. Ct. App. · 1981 · confidence medium
Lansky v. Goldstein, 136 Ga. App. 607 (1) ( 222 SE2d 62 ); Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
discussed Cited as authority (rule) Chapman v. St. Francis Hospital, Inc.
Ga. Ct. App. · 1980 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence.” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
cited Cited as authority (rule) Bress v. Keep-Safe Industries, Inc.
Ga. Ct. App. · 1980 · confidence medium
See Lansky v. Goldstein, 136 Ga. App. 607 (1) ( 222 SE2d 62 ); Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ); Holland v. Sanfax Corporation, 106 Ga. App. 1 ( 126 SE2d 442 ).
cited Cited as authority (rule) Brooks v. Douglas
Ga. Ct. App. · 1980 · confidence medium
See also Lansky v. Goldstein, supra; Colonial Stores, Inc. v. Turner, 117 Ga. App. 331 ( 160 SE2d 672 ) (1968); Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) Ingram v. Baldwin County
Ga. Ct. App. · 1979 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. [Cit.]” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) Danny's Cabinet Shop, Inc. v. G & M Fire Extinguisher Sales & Service, Inc.
Ga. Ct. App. · 1979 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. [Cit.]' Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).” Crymes v. Ryland Group, Inc., 143 Ga. App. 436, 437 ( 238 SE2d 764 ) (1977).
discussed Cited as authority (rule) Leake v. City of Atlanta
Ga. Ct. App. · 1978 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. [Cit.]” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited as authority (rule) Hip Pocket, Inc. v. LEVI STRAUSS & COMPANY
Ga. Ct. App. · 1978 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. [Cits.]” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
discussed Cited as authority (rule) Goodwin v. Trust Co.
Ga. Ct. App. · 1978 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. [Cit.]’ Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429)." Lansky v. Goldstein, 136 Ga. App. 607 (1) (222 SE2d *790 62).
discussed Cited as authority (rule) Parnell v. Etowah Bank
Ga. Ct. App. · 1978 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. [Cit.]” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
cited Cited as authority (rule) Farris v. Sneed
Ga. Ct. App. · 1978 · confidence medium
Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
cited Cited as authority (rule) Craig Mortgage Co. v. Lanier Hospital, Ltd.
Ga. Ct. App. · 1977 · confidence medium
Colonial Stores v. Turner, 117 Ga. App. 331 ( 160 SE2d 672 ).” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
cited Cited as authority (rule) Cochran v. Mother's Small Loan Co.
Ga. Ct. App. · 1977 · confidence medium
Colonial Stores v. Turner, 117 Ga. App. 331 ( 160 SE2d 672 ).” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
cited Cited as authority (rule) Crymes v. Ryland Group, Inc.
Ga. Ct. App. · 1977 · confidence medium
Colonial Stores v. Turner, 117 Ga. App. 331 ( 160 SE2d 672 ).” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
cited Cited as authority (rule) Stephens v. Stephens
Ga. · 1977 · confidence medium
Colonial Stores v. Turner, 117 Ga. App. 331 (160 SE2d 672).” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
cited Cited as authority (rule) E. K. Wright Construction Co. v. Dixie Metal Co.
Ga. Ct. App. · 1977 · confidence medium
Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
cited Cited as authority (rule) Lansky v. Goldstein
Ga. Ct. App. · 1975 · confidence medium
Colonial Stores v. Turner, 117 Ga. App. 331 (160 SE2d 672).” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
cited Cited as authority (rule) Wheeler v. Rowell
Ga. · 1975 · confidence medium
Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
cited Cited as authority (rule) Black v. Hamilton
Ga. Ct. App. · 1975 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden. . .” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ). 4.
discussed Cited as authority (rule) Helmer v. Hegidio (2×)
Ga. Ct. App. · 1974 · confidence medium
The movant has that burden even as to issues upon which the opposing party would have the trial burden.” Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ).
discussed Cited "see" Clay v. Department of Transportation (2×)
Ga. Ct. App. · 1990 · signal: see · confidence high
See generally Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973); First of Ga. Ins.
discussed Cited "see" Best v. Dublin Eye Associates (2×)
Ga. Ct. App. · 1988 · signal: see · confidence high
See Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973); Henderson v. Atlanta Transit Sys., 133 Ga. App. 354, 356 ( 210 SE2d 845 ) (1974).
discussed Cited "see" Morrow v. State (2×)
Ga. Ct. App. · 1988 · signal: see · confidence high
See generally Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited "see" Gerdes v. Dziewinski (2×)
Ga. Ct. App. · 1987 · signal: see · confidence high
See generally Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
examined Cited "see" Atkinson v. Kirchoff Enterprises, Inc. (4×)
Ga. Ct. App. · 1986 · signal: see · confidence high
See generally Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973).
discussed Cited "see" McNair v. GOLD KIST, INC. (2×)
Ga. Ct. App. · 1983 · signal: see · confidence high
See Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ); Hamlet v. Mr. Zippy, Inc., 163 Ga. App. 865 ( 294 SE2d 671 ).
discussed Cited "see" Hamlet v. Mr. Zippy, Inc. (2×)
Ga. Ct. App. · 1982 · signal: see · confidence high
See Ham v. Ham, 230 Ga. 43, 45 ( 195 SE2d 429 ) (1973); Burnette Ford, Inc. v. Hayes, 227 Ga. 551 ( 181 SE2d 866 ) (1971).
HAM Et Al.
v.
HAM
27392.
Supreme Court of Georgia.
Jan 5, 1973.
195 S.E.2d 429
Allen, Edenfield, Brown & Franklin, Charles H. Brown, John R. Harvey, Alfred Dan Fears, for appellants., Sullivan & Hawkins, Rudolph Sullivan, Ashley Hawkins, for appellee.
Gunter.
Cited by 68 opinions  |  Published
GUNTER, Justice.

The appellants-defendants made a motion for summary judgment below which was denied by the trial judge. However, a certificate for immediate review was granted.

The sole issue for decision on appeal is the correctness or incorrectness of the judgment denying the motion for summary judgment.

This case involves a contest between the executors of the estates of two brothers, V.H. Ham who died November 17, 1966 and N. L. Ham who died May 4, 1970. The contest involves the ownership of two tracts of land in Butts County, Georgia. It is conceded that record title to the two tracts of land is in N. L. Ham.

In 1971, the executor of the estate of V. H. Ham brought an action against the executors of the estate of N. L. Ham (appellants-defendants) seeking ejectment and a decree placing title to the two tracts of land in the executor of the estate of V. H. Ham.

Appellants filed responsive pleadings and their motion for summary judgment.

The summary-judgment evidence in support of N. L. Ham’s ownership of the two tracts in question consisted of facts taken from the real estate records of Butts County showing all real estate transactions made by N. L. Ham during his lifetime, and showing that at the time of his death record title to the two tracts in question was vested in him; also supporting N. L. Ham’s ownership was an authenticated statement of V. H. Ham furnished on January 6, 1961 to agents of the Compliance and Investigation Division, Commodity Stabilization Service, U. S. Department of Agriculture which, in part, read as follows: "In[*44] addition to my duties as Sheriff I operate a Butts County farm which consists of acreage that I personally own and acreage owned by my brother N. L. Ham of Pembroke, Georgia. My brother has never lived or farmed in Butts County and he is principally occupied as a Chevrolet dealer in Pembroke. I have farmed and operated my brother’s acreage within my own farm and all farm income derived from the entire farming operation above expenses is used to pay for the initial costs of the farmland and to buy additional farmland. My brother does own and furnish an automobile and a truck for my use in connection with the farming activities but I personally am in charge of all the farming that is done on the farm.”

The summary-judgment evidence in support of V. H. Ham’s ownership was as follows: V. H. Ham paid the total purchase price for both tracts of land in question; while N. L. Ham was the grantee in the deeds to both tracts, V. H. Ham retained possession of both deeds during his lifetime; the executor of the estate of V. H. Ham still has possession of said deeds; V. H. Ham farmed the two tracts during his lifetime, retained all income from the two tracts as his own, did not pay any of the income or profits from the two tracts to N. L. Ham, and V. H. Ham did not pay any rent for the use of the two tracts to N. L. Ham; V. H. Ham paid all real estate taxes on the two tracts during his lifetime, and after his death his executor continued to pay real estate taxes on the two tracts; N. L. Ham did not receive any income from the two tracts of land during his lifetime, nor did N. L. Ham attempt to exercise control over or possession of the two tracts of land during his lifetime.

Appellants contend that the record title being in N. L. Ham to the two tracts at the time of his death plus V. H. Ham’s written statement made during his lifetime that he farmed acreage in Butts County owned by his[*45] brother, N. L. Ham, are sufficient to eliminate any fact issue as to ownership between the two parties. We do not agree. Having reviewed this record, we concur with the trial judge that the evidence submitted created an issue of fact with respect to ownership of the two tracts, and that fact issue is for determination by a jury.

Argued September 12, 1972 Decided January 5, 1973.

On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party’s papers are carefully scrutinized, while the opposing party’s papers, if any, are treated with considerable indulgence. Colonial Stores v. Turner, 117 Ga. App. 331 (160 SE2d 672).

Code § 108-116 says: "As between . . . brothers . . . , payment of purchase money by one, and causing the conveyance to be made to another, shall be presumed to be a gift; but a resulting trust in favor of the one paying the money may be shown and the presumption rebutted.”

In the case of Stevens v. Stevens, 204 Ga. 340 (3) (49 SE2d 895) (1948) this court said: "The fact that LeRoy Stevens paid the purchase-price of the land and caused the conveyance to be made to his brother, Morgan Stevens, Jr., would be presumed to be a gift, but this presumption may be rebutted. [Cits.]”

Under the evidence in this case submitted in support of and in opposition to the motion for summary judgment, whether there was a gift in favor of N. L. Ham or a resulting trust in favor of V. H. Ham is a fact issue for determination by a jury. The trial judge properly denied the appellants’ motion for summary judgment.

Judgment affirmed.

All the Justices concur. [*46] Allen, Edenfield, Brown & Franklin, Charles H. Brown, John R. Harvey, Alfred Dan Fears, for appellants. Sullivan & Hawkins, Rudolph Sullivan, Ashley Hawkins, for appellee.