Hamby v. Hamby

• Court: Georgia Court of Appeals
• Writing for the Court: NICHOLS
• Citation: Hamby v. Hamby, 129 S.E.2d 561, 107 Ga.App. 255 (Ga. App. 1963)
• Decision Date: 24 January 1963
• Docket Number: No. 2,No. 39876,39876,2
• Parties: Lawrence HAMBY v. Thomas G. HAMBY

Page 561

129 S.E.2d 561

107 Ga.App. 255

Lawrence HAMBY v. Thomas G. HAMBY.

No. 39876.

Court of Appeals of Georgia, Division No. 2.

Jan. 24, 1963.

Syllabus by the Court

Where as here it is established as the law of the case that the evidence adduced on the trial demands a verdict for the defendant and the defendant then makes a motion for a summary judgment based on the premise that under such evidence no genuine issue exists and that no other evidence will be presented on another trial, and where the plaintiff fails to take advantage of his opportunity to show that other evidence would be introduced on another trial, the defendant is entitled to a summary judgment.

This is the fourth appearance of this case before this court. See Hamby v. Hamby, 99 Ga.App. 808, 110 S.E.2d 133; 101 Ga.App. 681, 115 S.E.2d 411 and 103 Ga.App. 826, 121 S.E.2d 169. On the first appearance it was held that the evidence demanded a verdict for the defendant and that the trial court erred in overruling his motion for new trial on the usual general grounds. On the second appearance the judgment sustaining the defendant's general demurrer to the petition was reversed. This demurrer was filed before the first trial but was not ruled upon until after the first appearance of the case before this court. On the third appearance of the case before this court it was held that the evidence adduced on the second trial did not authorize a verdict for the plaintiff, and the judgment overruling the defendant's motion for new trial on the usual general grounds was reversed. Thereafter, the defendant filed a motion for summary judgment attaching thereto as exhibits the briefs of evidence adduced on the first two trials and reciting the judgments of this court to the effect that under such evidence a verdict for the plaintiff was not authorized. The motion for summary judgment was also based on the premise that on a third trial the evidence would be no different from that adduced on the first two trials. The trial court, after issuance of a rule nisi and hearing, sustained the motion for summary judgment and the plaintiff assigns error on such judgment adverse to him.

J. Paxson Amis, James Maddox, Rome, for plaintiff in error.

Pittman & Kinney, H. E. Kinney, Dalton, Charles Pannell, Chatsworth, for defendant in error.

NICHOLS, Presiding Judge.

The motion for summary judgment was based on the pleadings and the evidence adduced on the prior trials, the judgments of this court and the affidavit of counsel for the defendant that the evidence on another trial would be no different from that adduced on the first two trials. On the hearing of the ...