Weaver v. Whaley , 233 Ga. 635 ( 1975 )

233 Ga. 635 (1975) 212 S.E.2d 812

WEAVER
v.
WHALEY et al.

29386.

Supreme Court of Georgia.

Submitted November 15, 1974. Decided February 5, 1975.

J. L. Jordan, for appellant.

Hutcheson & Kilpatrick, Lee Hutcheson, J. Norwood Jones, Jr., for appellees.

GUNTER, Justice.

This is an appeal from a judgment that denied plaintiff appellant's motion for summary judgment against a third-party defendant, the appellee. The trial judge certified the judgment for review.

The judgment appealed from held that the appellee had not been served with the third-party complaint, had not appeared and pleaded or waived service, and "it further appearing to the court that there is a genuine issue as to one or more material facts and that the plaintiff is not entitled to judgment against the named third-party defendant as a matter of law, it is ordered that the motion of the plaintiff is hereby denied."

The only enumerated error is: The trial court erred in denying plaintiff's motion for summary judgment because (A) the appellee third-party defendant appeared and pleaded to the action without having reserved objections to the alleged lack of service, and (B) the appellee did not file and serve a legal defense to the claim.

It is thus seen that the appellant contends that the appellee "appeared and pleaded," but that the appellee did not file and serve a legal defense to the claim.

Assuming for the sake of argument that the appellee did appear and plead to the action by answering interrogatories, though he had never been served with the third-party complaint, it does not follow that the appellant is entitled to summary judgment for failure of appellee to serve and file an answer to the third-party complaint.

We can only interpret the trial court's judgment denying the motion for summary judgment to mean that the appellee was not served and had not waived service, but even if his answers to the plaintiff's interrogatories constituted a "general appearance" in the case, material issues of fact remained, and plaintiff was not entitled to a summary judgment against the appellee.

We cannot escape the holding of the trial judge that material issues of fact remain to be determined, and since there is no enumerated error contesting this legal conclusion contained in the judgment, the denial of appellant's motion for summary judgment must be affirmed.

Judgment affirmed. All the Justices concur.