Opinion
50811.
ARGUED JUNE 16, 1975.
DECIDED JUNE 25, 1975. REHEARING DENIED JULY 16, 1975.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
Swift, Currie, McGhee Hiers, Glover McGhee, for appellants.
Dennis Fain, Dennis J. Webb, Wade K. Copeland, for appellee.
This is the second appearance of this case. In Rainwater v. Vazquez, 133 Ga. App. 173 ( 210 S.E.2d 380), we held that it was error for the trial court to treat defendant's jurisdictional motion as equivalent to a motion for summary judgment, and we reversed and remanded with direction that the trial court consider the motion in accordance with Code Ann. § 81A-112 (d) and 81A-143 (b). The trial court did so without the intervention of a jury and sustained the motion, and plaintiffs appeal. Held:
1. Enumeration of error 3 complains that the court was required to submit the issue to a jury and erroneously determined the motion itself on conflicting evidence. There is no reason why the trial judge could not determine the motion in this case before trial without submitting the jurisdictional issue to a jury. Code Ann. § 81A-112 (d); Hatcher v. Hatcher, 229 Ga. 249 ( 190 S.E.2d 533); Watts v. Kegler, 133 Ga. App. 231 ( 211 S.E.2d 177); 2A Moore's Federal Practice § 12. 16.
2. Enumeration of error 2 complains that the court erroneously placed the burden of proof upon plaintiffs to show jurisdiction. We do not find that this assertion is sufficiently supported by the record in order to raise a burden of proof issue.
3. The trial court's determination on conflicting evidence will not be disturbed. Watts v. Kegler, 133 Ga. App. 231, supra.
Judgment affirmed. Bell, C. J., and Marshall, J., concur.