Opinion
26140.
SUBMITTED OCTOBER 13, 1970.
DECIDED DECEMBER 3, 1970.
Cancellation. Troup Superior Court. Before Judge Knight.
H. J. Thomas, James E. Weldon, for appellants.
John Wyatt, Millard C. Farmer, for appellee.
The grant of the summary judgment in favor of the plaintiff was error.
SUBMITTED OCTOBER 13, 1970 — DECIDED DECEMBER 3, 1970.
Leroy Erwin Brown filed a complaint in Troup Superior Court against Robert (R. W.) Winkles, Virginia Winkles and Yvonne Brown, alleging: (1) that on the 6th day of May, 1969, judgment was entered against Robert Winkles in a suit then pending and which was pending at the time of the conveyances sought to be set aside, and that execution therein was issued May 15, 1969, and recorded as #1091 in General Execution Docket, Troup County, Docket 14, page 219; (2) that on April 15, 1969, Robert Winkles conveyed to his wife, Virginia Winkles, certain real estate located in Troup County, Georgia, as described in a copy of the deed attached as an exhibit to the complaint, designated Exhibit "A"; (3) that on April 15, 1969, Robert Winkles deeded to Yvonne Brown certain real estate located in Troup County described in a deed attached to the complaint designated as exhibit "B"; (4) that in March, 1969, the dwelling house owned and occupied by R. W. Winkles burned and as a result thereof he was paid the proceeds of the fire insurance covering the dwelling and that he gave his wife Virginia Winkles approximately seven thousand ($7,000) dollars of this money, which money has been used to purchase a mobile home located on that tract of land shown in exhibit "A"; (5) that the result of said conveyances and gift was to render defendant Robert Winkles, a/k/a R. W. Winkles, insolvent as to plaintiff creditor herein; (6) that said conveyances and gift were made with the intention to delay or defraud plaintiff herein and such intention was known to the defendants Yvonne Brown and Virginia Winkles; (7) that such conveyances and gift were voluntary and not for a valuable consideration and Robert Winkles, a/k/a R. W. Winkles, was rendered insolvent thereby; (8) that said deeds and gift were made and delivered with intention on the part of Robert Winkles, a/k/a R. W. Winkles, to prevent the lien of judgment above referred to from becoming a lien on said property, which intention was known to said Virginia Winkles and Yvonne Brown.
The complaint prayed that said deeds and gifts be decreed to be null and void as to plaintiff and be set aside and canceled. The defendants denied the material allegations of the complaint and alleged that the conveyances were for good and valuable considerations. They also alleged that they were neither served with notice nor otherwise notified, and that the case of the plaintiff against Robert Winkles and Randy Crews, a tort action involving unliquidated damages, had been placed on the trial calendar of Troup Superior Court, which showed that the case was to be tried on May 6, 1969, and it was prayed that the judgment rendered in said tort case be set aside. The plaintiff filed a motion for a summary judgment, which was granted. The defendants appeal from that judgment.
1. Mr. Millard C. Farmer, Jr., deposed by affidavit: that he was employed by Mr. Leroy Erwin Brown to represent him in a claim against Randy Crews and Robert Winkles; that the case was filed in the Superior Court of Troup County; that no answer was filed by either defendant; that "a letter was written" to the Clerk of the Superior Court of Troup County on April 2, 1969, requesting that the said case be placed on the calendar for jury trial for the May term of the superior court; that a copy of said letter was deposited in the United States Post Office with adequate postage and addressed to Robert Winkles and Randy Crews; that the case was tried on May 6, 1969, at which time neither defendant appeared; and that no answer was filed to the suit. The foregoing matter shown in the affidavit of Mr. Farmer, was not sufficient to show that the two defendants in the tort case received notice that Mr. Farmer would request that the case be placed on the jury calendar for the May, 1969, term of Troup Superior Court, since what the contents of the alleged letter to the clerk of the court were, does not appear. "The best evidence which exists of the fact sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." Code § 38-203. "Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." Code Ann. § 81A-156(e) (Ga. L. 1966, pp. 609, 660; as amended, Ga. L. 1967, pp. 226, 238). Hence, this affidavit does not set forth such facts as would be admissible in evidence, as the letter is the highest and best evidence. See Green v. Wright, 225 Ga. 25 (1) ( 165 S.E.2d 843). Nor does it appear that the one letter addressed to both Robert Winkles and Randy Crews was received by either. Moreover, the affidavit does not show that Mr. Farmer wrote the letter to the clerk or that he mailed it or that any particular person mailed it. The defendants denied by either deposition or affidavit that any of them received the notice described in Mr. Farmer's affidavit. Every inference will be indulged the defendants and all doubts resolved against the plaintiff movant as against the motion for a summary judgment as to the receipt of such notice. Code Ann. § 81A-156 (c); Sprague v. Vogt (CCA 8), 150 F.2d 795; mf'd, 164 F.2d 312; Parmelee v. Chicago Eye Shield Co. (CCA 8), 157 F.2d 582 (168 ALR 1130); Gonzales v. Tuttman (DC-NY), 59 F. Supp. 858; Standard Rolling Mills v. National Mineral Co. (DC NY), 2 FRD 236; Wittlin v. Giacalone ( 81 App. D.C. 20) 154 F.2d 20.
2. The plaintiff does not show, on his motion for summary judgment, that there is no genuine issue of material fact to be decided by a jury on the question whether Virginia Winkles and Yvonne Brown paid value for the property deeded them, as they swore they did. Credibility in this case, including that of the defendants, is crucial, and summary judgment becomes improper and a trial indispensable. Arnstein v. Porter (CCA 2), 154 F.2d 464, 68 U.S.P.Q. (United States Patent Quarterly) 288, mod'g 66 U.S. P.Q. 281. The same is true as to whether Virginia Winkles and Yvonne Brown knew that the tort action was pending or that it had gone to judgment. The fact that Robert Winkles stated on deposition that his wife and Yvonne Brown knew of the pendency of the tort action, does not, in view of their denials, authorize the grant of the summary judgment, since all doubts and inferences must be resolved against the movant. See citations to this effect in Division 1, hereinabove.
The trial court erred in granting the summary judgment in favor of the plaintiff.
Judgment reversed. All the Justices concur.