Stratton & McLendon, Inc. v. Cameron-Brown Co.

• Court: Georgia Court of Appeals
• Writing for the Court: CLARK; BELL, C.J., and STOLZ
• Citation: Stratton & McLendon, Inc. v. Cameron-Brown Co., 231 S.E.2d 447, 140 Ga.App. 430 (Ga. App. 1976)
• Decision Date: 12 November 1976
• Docket Number: CAMERON-BROWN,No. 1,No. 53006,53006,1
• Parties: STRATTON & McLENDON, INC., et al. v.COMPANY

Page 447

231 S.E.2d 447

140 Ga.App. 430

STRATTON & McLENDON, INC., et al. v. CAMERON-BROWN COMPANY.

No. 53006.

Court of Appeals of Georgia, Division No. 1.

Nov. 12, 1976.

Calhoun A. Long, Atlanta, for appellants.

Arnall, Golden & Gregory, James B. Mowry, Jr., Atlanta, for appellee.

CLARK, Judge.

Plaintiff sued the maker and two endorsers to recover on three promissory notes. Defendants in their joint answer set up the affirmative defenses of substitution of debtors and novation. Thereafter plaintiff moved for summary judgment which the trial court granted. Defendants have taken this appeal from that judgment.

Neither plaintiff's motion nor supporting affidavits addressed defendants' affirmative defenses. Defendants filed an affidavit in opposition to the motion.

On a motion for summary judgment the burden is on the movant to establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Code Ann. § 81A-156(c). The plaintiff has failed to carry its burden by not piercing nor even addressing the affirmative defenses raised by defendants. See Smith v. First American Bank & Trust Co., 139 Ga.App. 292, 228 S.E.2d 227; C. K. Security Systems, Inc. v. Hartford Accident & Indemnity Co., 137 Ga.App. 159, 223 S.E.2d 453; Barker v. Gold Kist, Inc., 135 Ga.App. 224, 217 S.E.2d 195; Commercial Credit Plan, Inc. v. Mills, 134 Ga.App. 908, 216 S.E.2d 628; Price v. B-Line Systems, Inc., 129 Ga.App. 34(3), 198 S.E.2d 328.

Our ruling is that plaintiff has not met its procedural burden under Code Ann. § 81A-156 and 'does not necessarily mean that defendants are entitled to finally prevail (cit.), nor does it necessarily fix the law of the case. (Cits.).' Roberson v. Evergreen & Associates, Inc., 134 Ga.App. 881, 216 S.E.2d 693. We intimate no opinion as to the relative merits or lack thereof of the claims or defenses raised by the parties...