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Injunction. Fulton Superior Court. Before Judge Etheridge.
NICHOLS, Justice.
1. The trial court did not err in treating the defendants' motions to dismiss as motions for summary judgment when matters outside the pleadings were considered.
2. Where the record showed without dispute the gravamen of the plaintiff's complaint was the conversion of corporate stock and the alleged conversion took place more than four years before the action was instituted, it was not error to grant the defendants' motions to dismiss upon the ground of laches.
James O. Clark filed an equitable complaint in which he sought to enjoin the defendants (individuals and a corporation) from discontinuing the corporation's operation and from disposing of or concealing the corporate assets. He also sought the appointment of a receiver, a decree as to his ownership of corporate stock. an audit and accounting, and a money judgment. The defendants filed answers in which they denied the material allegations of the plaintiff's complaint and defenses in which they raised, among other defenses, the question of laches. Thereafter, treating the motions to dismiss as motions for summary judgment, the trial court granted such motions on the ground of laches and dismissed the plaintiff's complaint. It is from this judgment that the plaintiff appeals.
1. Under authority of Sec. 12 (b) of the Civil Practice Act (Ga. L. 1966, p. 609; Code Ann. 81A-112 (b)), the trial court properly treated the motion to dismiss as a motion for summary judgment where depositions, etc., had been filed and were considered upon the hearing of the motion. See also Parks v. Fort Oglethorpe State Bank, 225 Ga. 54 (4) (166 SE2d 27), as to the correctness of such procedure.
2. The record in this case shows without dispute that the basis of the plaintiff's complaint is the alleged wrongful conversion of corporate stock, and that any cause of action arose more than four years before the present action was instituted, and that the judgment of the trial court granting the defendants' motions (treated as motions for summary judgment), was not error for any reason enumerated. Code 3-1003; Hill v. Fourth Nat., Bank of Macon, 156 Ga. 704 (120 SE 1). Compare also O'Callaghan v. Bank of Eastman, 180 Ga. 812 (180 SE 847).
Judgment affirmed. All the Justices concur.
Marvin P. Nodvin, for appellee.
Grace W. Thomas, for appellant.
ARGUED APRIL 14, 1971 -- DECIDED MAY 6, 1971.
Friday May 22 15:40 EDT

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