American National Bank & Trust Company of Chattanooga v. Davis

241 Ga. 333 (1978)

245 S.E.2d 291

AMERICAN NATIONAL BANK & TRUST COMPANY OF CHATTANOOGA v. DAVIS et al.

33493.

Supreme Court of Georgia.

Submitted April 14, 1978.

Decided May 17, 1978.

Brown, Harriss, Hartman & Ruskaup, Robert J. Harriss, for appellant.

John W. Love, Jr., William M. Phillips, Carter School-field, for appellees.

UNDERCOFLER, Presiding Justice.

This is an action to set aside a deed for fraud upon a creditor. The trial court granted a motion to strike the defendant grantee for failure to state a claim against her. This is tantamount to dismissing the action because the grantee is an indispensable party. Czyz v. Czyz, 240 Ga. 806 (242 SE2d 585) (1978). We reverse.

A motion to dismiss a complaint should not be granted for failure to state a claim unless the complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be *334 proved in support of the claim. Here the plaintiff seeks to set aside a deed from the defendant son to the defendant mother. It is alleged that the plaintiff was a creditor of the son, he was insolvent at the time of the conveyance, the conveyance was voluntary, and the conveyance was fraudulent, and the mother had reasonable grounds of suspicion that the conveyance was fraudulent. These allegations state a claim. Code Ann. § 28-201. Mercantile Nat. Bank v. Aldridge, 233 Ga. 318 (210 SE2d 791) (1974).

The record here does not authorize the motion to dismiss to be treated as a motion for summary judgment. Appellee contends the trial judge based his decision upon certain stipulations but appellant disputes this and no such stipulations appear of record nor is reference made thereto in the trial court's judgment.

Judgment reversed. All the Justices concur.