Cochran v. Southern Business University, Inc.
| Decision Date | 19 November 1964 |
| Docket Number | No. 1,No. 40833,40833,1 |
| Citation | 110 Ga.App. 666,139 S.E.2d 400 |
| Parties | H. M. COCHRAN, by next friend, v. SOUTHERN BUSINESS UNIVERSITY, INC |
| Court | Georgia Court of Appeals |
Phillips, Johnson & Daniel, William W. Daniel, Atlanta, for plaintiff in error.
Huie, Etheridge & Harland, Harry L. Cashin, Jr., Atlanta, for defendant in error.
Syllabus Opinion by the Court
1. When the defendant has made a motion for a summary judgment under the provisions of Code Ann. Ch. 110-12, which motion is supported by affidavits, depositions, or other evidentiary matter showing a prima facie right on the part of the defendant to have a summary judgment rendered in his favor, the duty is cast upon the plaintiff to produce rebuttal evidence at the hearing thereof, by the introduction of depositions or affidavits, sufficient to show to the court that there is a genuine issue of fact to be decided by the jury. Scales v. Peevy, 103 Ga.App. 42, 47, 118 S.E.2d 193.
2. In such a case the depositions or affidavits offered in support of the plaintiff's case and in opposition to the defendant's motion for a summary judgment must affirmatively show that the plaintiff's case is provable by competent evidence. Moore v. Atlanta Transit System, 105 Ga.App. 70, 72(1), 123 S.E.2d 693. Section 5 of the Act approved March 17, 1959 (Ga.L. 1959 pp. 234, 235), provides in part: 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated [t]herein.' Code Ann. § 110-1205. (Emphasis ours). An affidavit which shows on its face that it is not made on the personal knowledge of the affiant is insufficient to show to the court that there is a genuine dispute for the jury to decide.
3. Where, as in this case, the defendant pleads in defense of the plaintiff's action of debt and for money had and received that the sum which the plaintiff seeks to recover was paid under a written contract, a copy of which was attached as an exhibit to the defendant's answer, which contract, apparently binding on its face, provides that the money consideration recited as having been paid by the plaintiff to the defendant, would be refunded only on the happening of certain specified contingencies; and where plaintiff, by failing to answer the defendant's request for admissions, admitted execution of the contract, the part...
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Chandler v. Gately, s. 44075
...affiant is insufficient to show to the court that there is a genuine dispute for the jury to decide.' Cochran v. Southern Business University, Inc., 110 Ga.App. 666(2), 139 S.E.2d 400. And see Bussie v. Wilson, 114 Ga.App. 298, 151 S.E.2d (b) 'In considering depositions and affidavits in su......
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Federal Ins. Co. v. National Distributing Co., Inc.
...evidence on this point. Consequently, National was entitled to summary judgment on this issue. See Cochran v. Southern Business Univ., 110 Ga.App. 666(1), 139 S.E.2d 400 (1964). National is now entitled to recover the $1 million in payment of principal under the settlement agreement, and th......
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Hodge Residential, Inc. v. Bankers First Federal Sav. & Loan Ass'n
...evidence to cast upon defendants the burden to present evidence showing a genuine issue of triable fact. Cochran v. Southern Bus. Univ., 110 Ga.App. 666(1), 139 S.E.2d 400 (1964). They failed, and plaintiff was entitled to judgment as a matter of law. Southeastern Fidelity Ins. Co. v. Tesle......
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Nipper v. Crisp County, 53315
...is a genuine issue of fact to be decided by the jury. Scales v. Peevy, 103 Ga.App. 42, 47, 118 S.E.2d 193; Cochran v. Southern Business University, 110 Ga.App. 666, 139 S.E.2d 400; Bussie v. Wilson, 114 Ga.App. 298, 151 S.E.2d 186." Stephens County v. Gaines, 128 Ga.App. 661(1), 197 S.E.2d ......