Federal Ins. Co. v. Oakwood Steel Co., 47290

CourtUnited States Court of Appeals (Georgia)
Citation191 S.E.2d 298,126 Ga.App. 479
Docket NumberNo. 3,No. 47290,47290,3
Decision Date14 June 1972

Syllabus by the Court

In a summary judgment action an attack upon a supporting affidavit on the premise that it fails to show the requisite of personal knowledge of the material facts will not be considered unless the point is raised in the trial court.

Greer, Sartain & Carey, J. Nathan Deal, Gainesville, for appellant.

Telford, Stewart & Stephens, J. Douglas Stewart, Gainesville for appellees.

CLARK, Judge.

We have for determination in a summary judgment proceeding an attack upon a supporting affidavit because it fails to meet the requirement of showing that it was based upon personal knowledge which point was not raised in the trial court. Is this permissible? Our answer is in the negative.

The general rule is that '. . . one is limited in his appeal to grounds of objection which he properly presented to the trial court; he cannot make them for the first time on appeal.' H. W. Ivey Construction Co., Inc. v. Transamerica Ins. Co., 119 Ga.App. 794(2), 168 S.E.2d 855. Although we find no Georgia case squarely upon this question we have a directional guide in Georgia Highway Express, Inc. v. W. D. Alexander Co., 124 Ga.App. 143, 183 S.E.2d 215 where this court passed upon the reverse of our case: the objection as to failure to show personal knowledge there was raised in the trial court. Although reversing the trial court because of the defect, this court said '. . . '(T)echnicalities have no place in the summary judgment procedure' and . . . objections to 'formal defects' should be made in the trial court or else they are waived.'

There this court was called upon to consider an objection first made on appeal that an affidavit should not have been considered because it violated the 'best evidence rule,' we declined because '. . . the objection should have been raised in the trial court prior to the ruling on the motion for summary judgment. (Citation).' Planters Rural Tel. Coop. v. Chance, 108 Ga.App. 146, 147, 132 S.E.2d 90, 92.

Because our summary judgment procedure as codified in Code Ann. § 81A-156 is similar to Section 56 of the Federal Rules of Civil Procedure, including the requirement that the affidavits 'shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein' it is proper for us to consider the Federal rulings. Moore v. Atlanta Transit System, 105 Ga.App. 70, 123 S.E.2d 693; Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442; Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115. The Federal courts have required that the defects be pointed out in the trial court in order to be considered on appeal. Auto Drive Away Co. v. I.C.C. (CA 5 1966), 360 F.2d 446; Noblett v General Electric Credit Corp. (CA 10 1968), 400 F.2d 442; United States for Use and Benefit of Austin v. Western Elec. Co. (CA 9 1964), 337 F.2d 568. These rulings are in accord with the authoritative Moore on Federal Procedure which states 'An affidavit that does not measure up to the standards of 56(e) is subject to a motion to strike; and formal defects are waived in the absence of such a motion or other objection.' 6 Moore's Federal Practice, (2d Ed.) Par. 56.22(1), p. 2817.

The wisdom of imposition of this requirement that such alleged defect must be raised in the trial court is illustrated in the case at bar. The trial judge, C. Winfred Smith, was called upon to decide two summary judgment motions, one being made by plaintiff and the other by defendant. In doing so he rendered two separate opinions. In each he divided his opinion into three parts: (1) a statement of facts, (2) citation and discussions, and (3) findings and conclusions. In his six-page scholarly order ruling against appellant from which this appeal is taken, he refers specifically to recitals contained in the affidavit that is now being attacked. Obviously, it would be unfair to the trial jurist for this court to be permitted to consider this appeal without consideration of the same record including this affidavit sub judice which the trial judge recognized as creating a factual issue. Furthermore, to disregard the affidavit now under attack would call upon us to consider the case on a completely different basis from that presented below and this would be contrary to the line of cases cited in H. W. Ivey Construction Co. v. Transamerica Ins. Co., supra, holding 'He must stand or fall upon the position taken in the...

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  • Pfeiffer v. Georgia Dept. of Transp., S01G1656.
    • United States
    • Supreme Court of Georgia
    • 26 d2 Novembro d2 2002
    ...421, 105 S.E.2d 224 (1958). 8. Bell v. Sellers, 248 Ga. 424, 426, 283 S.E.2d 877 (1981), quoting Federal Ins. Co. v. Oakwood Steel Co., 126 Ga.App. 479, 191 S.E.2d 298 9. See, e.g., Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 87 L.Ed. 645 (1943) (fairness to trial court requires obj......
  • Alexander v. Boston Old Colony Ins. Co., 47218
    • United States
    • United States Court of Appeals (Georgia)
    • 4 d1 Dezembro d1 1972
    ...Pugmire Lincoln-Mercury, Inc., 124 Ga.App. 414, 417, 184 S.E.2d 56; and the concurring opinion in Federal Ins. Co. v. Oakwood Steel Co., 126 Ga.App. 479, 481, 191 S.E.2d 298. Even assuming the validity of the affidavit and the attached copy, or the plaintiff's waiver of its invalidity, howe......
  • Sun First Nat. Bank of Orlando v. Gainesville 75, Ltd., 59677
    • United States
    • United States Court of Appeals (Georgia)
    • 26 d4 Junho d4 1980
    ...scrutinized, while the opposing party's affidavits are treated with considerable indulgence. See Federal Ins. Co. v. Oakwood Steel Co., 126 Ga.App. 479, 480, 191 S.E.2d 298 (1972); Sanfrantello v. Sears, Roebuck & Co., 118 Ga.App. 205, 206, 163 S.E.2d 256 (1968). While the proof offered by ......
  • Chapman v. McClelland, 37959
    • United States
    • Supreme Court of Georgia
    • 6 d3 Janeiro d3 1982
    ...ruling on motions for summary judgment. Bell v. Sellers, 248 Ga. 424(1), 283 S.E.2d 877 (1981); Federal Ins. Co. v. Oakwood Steel Co., 126 Ga.App. 479, 191 S.E.2d 298 [248 Ga. 727] 3. The heirs' argument that the suit is barred by the statute of frauds [Code Ann. § 20-401(4) ], is also with......
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