Ogden Equipment Co. v. Talmadge Farms, Inc.

232 Ga. 614 (1974) 208 S.E.2d 459

OGDEN EQUIPMENT COMPANY
v.
TALMADGE FARMS, INC. et al.

28790.

Supreme Court of Georgia.

Submitted April 5, 1974. Decided September 3, 1974.

Scheer & Elsner, Robert A. Elsner, for appellant.

Swift, Currie, McGhee & Hiers, Victor A. Cavanaugh, Lewis N. Jones, for appellees.

HALL, Justice.

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[8]. 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 SE2d 173). The language to the contrary found in Thompson v. Abbott, 226 Ga. 353, 355 (174 SE2d 904) and Williams v. Williams, 226 Ga. 734 (177 SE2d 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.