Opinion
51129, 51405.
ARGUED SEPTEMBER 10, 1975.
DECIDED OCTOBER 24, 1975. REHEARING DENIED NOVEMBER 18, 1975.
Action for damages. DeKalb Superior Court. Before Judge Norvell.
A. Ed Lane, Robert J. NeSmith, J. Max Davis, for appellants.
Serby Mitchell, Louis C. Parker, III, for appellees.
1. "On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party's papers are carefully scrutinized, while the opposing party's papers, if any, are treated with considerable indulgence. Colonial Stores v. Turner, 117 Ga. App. 331 ( 160 S.E.2d 672)." Ham v. Ham, 230 Ga. 43, 45 ( 195 S.E.2d 429).
Accordingly, where the resident-movant had filed both an original answer — admitting jurisdiction and ownership, operation and control of the apartment house in which the plaintiff tenant sustained injuries caused by the alleged negligence of the defendants — and an amended answer denying such ownership, operation and control, doubts were raised which authorized the denial of the motion for summary judgment. See generally Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783 ( 195 S.E.2d 277) and cits.
It is well settled that where a plea both admits and denies a particular issue, the admission, and not the denial, must prevail. See City of Moultrie v. Schofield's Sons, Inc., 6 Ga. App. 464 (1) ( 65 S.E. 315); Taylor v. Crawford, 119 Ga. App. 262, 264 (3) ( 167 S.E.2d 404). The principle is particularly applicable on motions for summary judgment, where all inferences that can be drawn from the pleadings and evidence are construed against the movant. Holland v. Sanfax Corp., 106 Ga. App. 1 ( 126 S.E.2d 442). Accordingly, the motion for summary judgment was properly denied. Nothing herein should be construed as holding that the foregoing issue of fact could not be resolved on summary judgment upon the submission of sufficient relevant, competent evidence.
2. Where the co-defendants were served in this action, the trial judge did not err in denying their motion to dismiss on the grounds of lack of jurisdiction over their persons or improper venue, because all the defendants, as joint tortfeasors, may be sued together in the county in which any one resides. Ga. Constitution, Art. VI, Sec. XIV, Par. IV (Code Ann. § 2-4904); Albany Coca-Cola Bottling Co. v. Shiver, 63 Ga. App. 755, 758 (1) ( 12 S.E.2d 114); Akin v. Randolph Motors, 95 Ga. App. 841, 847 ( 99 S.E.2d 358); Gilson v. Mitchell, 131 Ga. App. 321 ( 205 S.E.2d 421). Thus, the court acquired jurisdiction over the nonresident defendants.
The only time the defense of lack of jurisdiction over the person of the nonresident defendants because of their nonresidency would be valid in this action is in the event of a judgment in favor of the resident joint defendant, whereby the court would lose jurisdiction as to the nonresident joint defendants unless they expressly or impliedly waive this defense. Burger v. Noble, 81 Ga. App. 759 ( 59 S.E.2d 761). Therefore, the default of the nonresident defendants, which otherwise would have constituted a waiver of the defense specified in Code Ann. § 81A-112 (h) (1) (Ga. L. 1966, pp. 609, 622, as amended) ( Aiken v. Bynum, 128 Ga. App. 212 (2) ( 196 S.E.2d 180)), was irrelevant to the issue of jurisdiction of the nonresident defendants, and would not estop them from asserting the fact of their nonresidency in the event of a judgment in favor of the resident defendant.
3. The failure of the trial judge to specifically deny the motion to dismiss for the reason of movants' alleged waiver of the defense of lack of jurisdiction over their persons, enumerated as error in the plaintiffs' cross appeal, was not error for the reasons set forth in Division 2 hereinabove.
4. The issue, raised by the cross appeal, of whether the trial judge properly refused to admit in opposition to the motion for summary judgment a certified tax plat tendered by the plaintiffs at the hearing on the motion — on the ground that it had not been served at least one day prior thereto, as is required for opposing affidavits (Code Ann. § 81A-106 (d) (Ga. L. 1966, pp. 609, 617; 1967, pp. 226, 229, 230); Malone v. Ottinger, 118 Ga. App. 778 (3) ( 165 S.E.2d 660)) — has been rendered moot by our affirmance of the denial of the summary judgment motion in Division 1 hereinabove.
Judgments affirmed on the main and cross appeals. Deen, P. J., and Evans, J., concur.