Opinion
44236.
SUBMITTED FEBRUARY 3, 1969.
DECIDED FEBRUARY 20, 1969.
Trover. Fulton Civil Court. Before Judge Bradford.
Wilkinson, Nance Head, A. Mims Wilkinson, Jr., Virginia A. Bonner, for appellant.
Jack K. Bohler, for appellee.
The trial court erred in granting the defendant's motion for judgment on the pleadings, which was based merely upon the complaint and an answer, the allegations of which were not admitted, hence deemed denied.
SUBMITTED FEBRUARY 3, 1969 — DECIDED FEBRUARY 20, 1969.
On May 29, 1968, GMAC instituted a trover action against Paul R. Jackson to recover the value of an automobile, to which it held title by virtue of a conditional sale contract and which the defendant allegedly converted on or about January 12, 1967, by transferring it to a third party subsequently to the plaintiff's refusal to accept or approve of such transfer. Defendant filed an answer to the complaint, alleging the following four defenses thereto: (1) a general denial of indebtedness, (2) a plea of discharge in bankruptcy, (3) a former adjudication of the same case in the Civil Court of Fulton County, and (4) a final adjudication of the issue of wilful conversion in the Bankruptcy Court. Copies of the pleadings and judgments in the two former cases were attached as exhibits to the answer. The defendant subsequently filed a motion for judgment on the pleadings. The court granted the motion, based upon the third and fourth defenses, and dismissed the complaint, from which judgment the plaintiff appeals.
"Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided." Ga. L. 1966, pp. 609, 619, as amended ( Code Ann. § 81A-108 (d)). No responsive pleading is required to an answer. Ga. L. 1966, pp. 609, 618, as amended ( Code Ann. § 81A-107 (a)). "Judgment on the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment. Hence, a defendant may not obtain a judgment on the pleadings on the basis of the allegations in his answer where no reply is required, since under Rule 8 (d) [ Code Ann. § 81A-108 (d), supra] these allegations are deemed denied." 2A Moore's Federal Practice (2d Ed.) 2269, § 12.15.
Here, there was no admission by the plaintiff of the truth of the allegations of the answer; therefore they are deemed denied. The uncertified copies of the judicial proceedings in other courts were not evidence, but part of the pleadings which were deemed denied; therefore, they could not be considered by the trial court in ruling on the motion for judgment on the pleadings.
Accordingly, the trial court erred in its judgment granting the defendant's motion for judgment on the pleadings.
Judgment reversed. Pannell and Quillian, JJ., concur.