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Lawskills.com Georgia Caselaw
SIGNAL KNITTING MILLS, INC. v. ROOZEN.
57879.
UNDERWOOD, Judge.
Guaranty. Fulton State Court. Before Judge Camp.
1. Although fraud is required to be pleaded with particularity (Code Ann. 81A-109 (b)), the failure to do so renders the complaint vulnerable to motion for more definite statement pursuant to CPA 12 (e) (Code Ann. 81A-112 (e)), but not, as an initial matter, to a Section 12 (b) (6) motion to dismiss. Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974); Canal Ins. Co. v. Cambron, 240 Ga. 708, 711 (2) (242 SE2d 32) (1978).
2. Defendant cites no authority, and we know of none, which supports the view that a notary who breaches his duty can be held liable only to the one who employs him. While we need not here determine the outer reaches of responsibility (see 1 AmJur2d 530, Acknowledgements, 124), we have no hesitancy in holding that liability clearly extends to the creditor named in the guaranty who was induced to extend credit in reliance upon the guaranty and its attestation.
3. Whether or not plaintiff has produced papers in support of the allegations of the complaint is irrelevant since this is a decision of a Section 12 (b) (6) motion (Code Ann. 81A-112 (b) (6)), the court did not consider matters outside the pleadings 50 as to convert the motion to one for summary judgment (CPA 12 (b); Code Ann. 81A-112 (b)), and indeed could not have done so without affording plaintiff 30-day notice as required by statute. Atlanta Associates v. Westminster Properties, 242 Ga. 462 (249 SE2d 252) (1978).
Cotton, Katz, White & Palmer, J. Timothy White, Kenneth T. Gartlir, for appellant.
SUBMITTED MAY 3, 1979 -- DECIDED JULY 3, 1979.
Friday May 22 03:02 EDT


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