Barrow v. General Motors Corp. , 172 Ga. App. 287 ( 1984 )

On Motion for Rehearing.

Counsel for appellant argues that we applied an inappropriate evidentiary test in our decision. That proposition has long ago been decided adversely to such contention. In Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) it was held: “ ‘Rule 56 contemplates a judgment on the merits, and cannot be properly utilized to raise matter in abatement.’ . . . ‘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 . . .’ ” Among the defenses enumerated in Rule 12 (OCGA § 9-11-12) is (b) (3): “Improper venue.” When the trial judge conducts a hearing on the motion to dismiss for improper venue, his findings are tested by that of a trier of fact, to wit — any evidence. See Intl. Indem. Co. v. Blakey, 161 Ga. App. 99, 101 (289 SE2d 303); Kirkpatrick v. Mackey, 162 Ga. App. 876, 877 (293 SE2d 461).

Motion for rehearing denied.