In Ogden Equipment Co. v. Talmadge Farms, Inc., 232 Ga. 614 (208 S.E.2d 459), this court overruled Thompson v. Abbott insofar as Thompson indicated that a motion to dismiss for lack of jurisdiction over the person (Code Ann. § 81A-112 (b) (2)) may be raised by or treated as a motion for summary judgment.Summary of this case from Webb v. Oliver
SUBMITTED APRIL 5, 1974.
DECIDED SEPTEMBER 3, 1974.
Question certified by the Court of Appeals of Georgia.
Scheer Elsner, Robert A. Elsner, for appellant.
Swift, Currie, McGhee Hiers, Victor A. Cavanaugh, Lewis N. Jones, for appellees.
The Court of Appeals has certified the question of whether a motion for summary judgment under Code Ann. § 81A-156 or a motion under Code Ann. § 81A-112 (b), which is treated as one for summary judgment, can be granted on matters in abatement.
"Rule 56 contemplates a judgment on the merits, and cannot be properly utilized to raise matter in abatement." 6 Moore's Federal Practice 2437, § 56.15. See also 10 Wright and Miller, Federal Practice and Procedure: Civil 402-403, § 2713. "Since a motion for summary judgment is designed to test the merits of the claim, the defenses enumerated in Rule 12 (b) (1) through Rule 12 (b) (5) and Rule 12 (b) (7) generally are not proper subjects for motions for summary judgment..." 5 Wright and Miller, Federal Practice and Procedure, 676, § 1366. See also 2A Moore's Federal Practice 2312, § 12.09 and Summer-Minter Assoc. v. Giordano, 231 Ga. 601, 606 ( 203 S.E.2d 173). The language to the contrary found in Thompson v. Abbott, 226 Ga. 353, 355 ( 174 S.E.2d 904) and Williams v. Williams, 226 Ga. 734 ( 177 S.E.2d 481) is overruled.
For the proper procedure in disposing of matters in abatement before trial see Code Ann. §§ 81A-112 (d) and 81A-143 (b).
Certified question answered in the negative. All the Justices concur.