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American National Bank Trust Company v. Davis

Supreme Court of Georgia
May 17, 1978
245 S.E.2d 291 (Ga. 1978)

Summary

reversing trial court order dismissing complaint against grantee for failure to state a claim because a grantee is a necessary and indispensable party

Summary of this case from State of New Jersey Department of Environmental Protection v. Caldeira

Opinion

33493.

SUBMITTED APRIL 14, 1978.

DECIDED MAY 17, 1978.

Cancellation, etc. Catoosa Superior Court. Before Judge Painter.

Brown, Harriss, Hartman Ruskaup, Robert J. Harriss, for appellant.

John W. Love, Jr., William M. Phillips, Carter School-field, for appellees.


This is an action to set aside a deed for fraud upon a creditor. The trial court granted a motion to strike the defendant grantee for failure to state a claim against her. This is tantamount to dismissing the action because the grantee is an indispensable party. Czyz v. Czyz, 240 Ga. 806 ( 242 S.E.2d 585) (1978). We reverse.

A motion to dismiss a complaint should not be granted for failure to state a claim unless the complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim. Here the plaintiff seeks to set aside a deed from the defendant son to the defendant mother. It is alleged that the plaintiff was a creditor of the son, he was insolvent at the time of the conveyance, the conveyance was voluntary, and the conveyance was fraudulent, and the mother had reasonable grounds of suspicion that the conveyance was fraudulent. These allegations state a claim. Code Ann. § 28-201. Mercantile Nat. Bank v. Aldridge, 233 Ga. 318 ( 210 S.E.2d 791) (1974).

The record here does not authorize the motion to dismiss to be treated as a motion for summary judgment. Appellee contends the trial judge based his decision upon certain stipulations but appellant disputes this and no such stipulations appear of record nor is reference made thereto in the trial court's judgment.

Judgment reversed. All the Justices concur.


SUBMITTED APRIL 14, 1978 — DECIDED MAY 17, 1978.


Summaries of

American National Bank Trust Company v. Davis

Supreme Court of Georgia
May 17, 1978
245 S.E.2d 291 (Ga. 1978)

reversing trial court order dismissing complaint against grantee for failure to state a claim because a grantee is a necessary and indispensable party

Summary of this case from State of New Jersey Department of Environmental Protection v. Caldeira
Case details for

American National Bank Trust Company v. Davis

Case Details

Full title:AMERICAN NATIONAL BANK TRUST COMPANY OF CHATTANOOGA v. DAVIS et al

Court:Supreme Court of Georgia

Date published: May 17, 1978

Citations

245 S.E.2d 291 (Ga. 1978)
245 S.E.2d 291

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