Davis v. American Acceptance Corp., supra at 267 (1). See also Myers v. McLarty, 150 Ga. App. 432, 434 ( 258 S.E.2d 56) (1979). However, the 30-day notice could "of course be waived if it [was] not desired."
Thus, the trial court may hear evidence to determine the defense in abatement or may defer such determination until trial. OCGA § 9-11-12 (d); Hardy v. Arcemont, 213 Ga. App. 243 ( 444 S.E.2d 327) (1994); Myers v. McLarty, 150 Ga. App. 432, 433 ( 258 S.E.2d 56) (1979); Marvin L. Walker Assoc. v. A. L. Buschman, Inc., 147 Ga. App. 851, 852 (1) ( 250 S.E.2d 532) (1978). Likewise, the trial court must determine such factual issues as to jurisdiction in a motion to set aside judgment.
Thus, the trial court may hear evidence to determine the defense in abatement or may defer such determination until trial. OCGA § 9-11-12 (d); Hardy v. Arcemont, 213 Ga. App. 243 ( 444 S.E.2d 327) (1994); Myers v. McLarty, 150 Ga. App. 432, 433 ( 258 S.E.2d 56) (1979); Marvin L. Walker Assocs., Inc. v. A. L. Buschman, Inc., 147 Ga. App. 851, 852(1) ( 250 S.E.2d 532) (1978). Likewise, the trial court must determine such factual issues as to jurisdiction in a motion to set aside judgment.
In doing so, Montgomery raised an issue of fact properly disposed of by motion for summary judgment rather than by motion to dismiss for failure to state a claim. See American Car Rentals v. Walden Leasing, 215 Ga. App. 621, 622 ( 451 S.E.2d 537) (1994); Sibley v. City of Atlanta, 152 Ga. App. 723, 724 (4) ( 263 S.E.2d 698) (1979); Myers v. McLarty, 150 Ga. App. 432, 433-434 ( 258 S.E.2d 56) (1979). Plaintiffs' complaint alleged that the accident occurred on March 27, 1997.
Such practice denies the respondent notice and opportunity to submit evidence on a timely motion for summary judgment. See American Car Rentals v. Walden Leasing, 215 Ga. App. 621, 622 ( 451 S.E.2d 537) (1994); Sibley v. City of Atlanta, 152 Ga. App. 723, 724 (4) ( 263 S.E.2d 698) (1979); Myers v. McLarty, 150 Ga. App. 432, 433-434 ( 258 S.E.2d 56) (1979). Absent the transcript of the proceedings in the superior court, the trial court would not be authorized to grant the motion to dismiss or judgment on the pleadings, because a motion to dismiss with prejudice "should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim."
The effect of the trial court's ruling was to avoid its responsibility to decide the jurisdictional question. OCGA §§ 9-11-12 (d) and 9-11-43 (b); Ogden Equip. Co., supra; Montgomery, supra at 190; Myers v. McLarty, 150 Ga. App. 432, 433 ( 258 S.E.2d 56) (1979). We do not construe the ruling as an order that the determination be deferred until trial under OCGA § 9-11-12 (d) ( Sherwood Mem. Park v. Bryan, 142 Ga. App. 664 ( 236 S.E.2d 903) (1977)), because no further ruling on the issue was ever made. It was left unresolved.
A motion to dismiss for lack of personal jurisdiction is a motion in abatement and not a motion in bar. Hemphill v. Con-Chem, 128 Ga. App. 590, 591-592 ( 197 S.E.2d 457); see Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 ( 208 S.E.2d 459); Myers v. McLarty, 150 Ga. App. 432, 433 ( 258 S.E.2d 56). Thus, motions to dismiss for lack of personal jurisdiction cannot be disposed of as motions for summary judgment. Id. The proper procedure in disposing of matters in abatement before trial is found in OCGA §§ 9-11-12 and 9-11-43.
Considering the record in its entirety, we are satisfied the summary judgment hearing held under the authority of OCGA § 9-11-12 discloses there is no genuine issue of any material fact and thus no error in the denial of summary judgment to Hilde nor grant to U.S. Fire in the guise of a dismissal. Myers v. McLarty, 150 Ga. App. 432 ( 258 S.E.2d 56). Judgment affirmed. Deen, P. J., and Pope, J., concur.
In such circumstances "the evidence must demand a finding that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law." Myers v. McLarty, 150 Ga. App. 432, 434 ( 258 S.E.2d 56) (1979). Moreover, there must be timely notice of a motion for summary judgment.
See Mayor of Savannah v. Savannah Cigarette & Amusement Svcs., 267 Ga. 173, 174, 476 S.E.2d 581 (1996) (the action was an attempt to circumvent the requirement to exhaust available administrative remedies and so was procedurally barred); Effingham County Bd. of Commrs. v. Effingham County Indus. Dev. Auth., 286 Ga.App. 748, 749, 650 S.E.2d 274 (2007) (in absence of justiciable controversy, trial court lacked power to rule on declaratory judgment claim). “Generally, when a motion to dismiss involves a factual issue as to a question of abatement, that is, lack of jurisdiction, improper venue, insufficiency of process, insufficiency of service of process or failure to join a party, the trial court is authorized under [OCGA § 9–11–12(d) ] to hear and determine these defenses before trial without a jury on application of any party.” Myers v. McLarty, 150 Ga.App. 432, 433, 258 S.E.2d 56 (1979). In this case, the trial court held a motions hearing at which it heard evidence, and it then issued an order denying Marietta Properties' motion for an interlocutory injunction and granting the City's motion to dismiss and plea in abatement.