Planters Rural Tel. Co-op., Inc. v. Chance
| Decision Date | 02 July 1963 |
| Docket Number | No. 39825,No. 1,39825,1 |
| Citation | 132 S.E.2d 90,108 Ga.App. 146 |
| Parties | PLANTERS RURAL TELEPHONE COOPERATIVE, INC. v. K. J. CHANCE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
An affidavit considered on motion for summary judgment must show that the affiant has personal knowledge of facts stated in affidavit, and must contain evidentiary matter which, if affiant were in court and testified on the witness stand, would be admissible as part of his testimony.
The plaintiff (defendant in error) sued the defendant (plaintiff in error) for $5,000 allegedly due for services rendered by plaintiff to defendant. The defendant filed an answer. The plaintiff filed a motion for summary judgment. The defendant assigns error on the judgment of the trial court granting summary judgment for the plaintiff. For a more detailed statement of the case see Planters Rural Telephone Co-op., Inc. v. Chance, 107 Ga.App. 116, 129 S.E.2d 384; 105 Ga.App. 270, 124 S.E.2d 300.
W. Colbert Hawkins, Sylvania, for plaintiff in error.
Harold W. Hollingsworth, Sylvania, for defendant in error.
1. The judgment of this court in Planters Rural Telephone Co-op. v. Chance, 107 Ga.App. 116, 129 S.E.2d 384 having been reversed by the Supreme Court of Georgia in Chance v. Planters Rural Tel. Co-Op., 219 Ga. 1, 131 S.E.2d 541, the judgment of this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.
2. It is the law of this case that the petition, as amended, sets forth a cause of action. Planters Rural Tel. Co-op. v. Chance, 105 Ga.App. 270, 124 S.E.2d 300. The question here on summary judgment is whether or not there is a genuine issue as to any material fact alleged in the petition. In support of his motion for summary judgment, the plaintiff submitted his affidavit stating that 'of my own knowledge, and being in position to know the truth thereof, I hereby state that each and every allegation set forth in plaintiff's petition and in amendment to plaintiff's petition is true.'
Holland v. Sanfax Corporation, 106 Ga.App. 1, 5, 126 S.E.2d 442, 446. While the affidavit is no place for ultimate facts and conclusions of law, if it contains relevant material facts, although these are intermingled with conclusions of law, the court may disregard the conclusions of law and consider the rest of the affidavit. William J. Kelly Co. v. Reconstruction Finance Corp., 172 F.2d 865 (1st Cir.). The policy of Code Ann., § 110-1205 is to allow the affidavit to contain all evidentiary matter, which, if the affiant were in court and testifying on the witness stand, would be admissible under the rules of evidence as part of his testimony. American Securit Co. v. Hamilton Glass Co., 254 F.2d 889, 893 (7th Cir.).
The defendant contends in its brief that the testimony of the plaintiff regarding a resolution of the board of directors of the defendant corporation cannot be considered on motion for summary judgment because of 'the best evidence rule,' Code 38-203. The fallacy of this contention is that secondary evidence, while not the best evidence, and while inadmissible on proper objection unless it be shown that the primary evidence is unavailable, will nevertheless support a verdict where it is admitted without objection. Morgan v. Bell, 189 Ga. 432, 439, 5 S.E.2d 897; Cummings v. State of Ga., 84 Ga.App. 698(1), 67 S.E.2d 156. In order for this court to consider an objection to the plaintiff's affidavit based on the 'best evidence' rule, the objection should have been raised in the trial court prior to the ruling on the motion for summary judgment. Burns v. Great A. & P. Tea Co., 105 Ga.App. 823(1), 125 S.E.2d 687.
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Chandler v. Gately, s. 44075
...were in court and testified on the witness stand, would be admissible as part of his testimony.' Planters Rural Telephone Cooperative, Inc. v. Chance, 108 Ga.App. 146, 132 S.E.2d 90. 'An affidavit which shows on its face that it is not made on the personal knowledge of the affiant is insuff......
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