Supreme Oil Co., Inc. v. Brock

• Decision Date: 10 October 1973
• Docket Number: No. 48341,No. 2,48341,2
• Citation: Supreme Oil Co., Inc. v. Brock, 201 S.E.2d 659, 129 Ga.App. 863 (Ga. App. 1973)
• Parties: SUPREME OIL COMPANY, INC. v. Ledford BROCK
• Court: Georgia Court of Appeals

Page 659

201 S.E.2d 659

129 Ga.App. 863

SUPREME OIL COMPANY, INC. v.Ledford BROCK.

No. 48341.

Court of Appeals of Georgia, Division No. 2.

Oct. 10, 1973.

Boney & Boney, F. H. Boney, Summerville, for appellant.

Rogers, Magruder & Hoyt, Wade C. Hoyt, III, Rome, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This is an appeal from denial of defendant's motion for summary judgment accompanied by the requisite review certificate.In addition to presenting the usual dispute between the attorneys as to existence of genuine issues concerning material facts warranting submission to a jury, we are called upon to rule as to the timeliness of the filing of plaintiff's response affidavit.

1.Appellant's advocate argues in behalf of defendant that the trial judge should not have considered the contents of plaintiff's rebuttal affidavit because it was not filed until the date of the hearing.The record discloses this point was not raised in the trial.Since appellant's counsel permitted contents of this affidavit to be considered by the judge without objection, we hold there was a waiver of the provisions of Code Ann. § 81A-156(c) which provides for filing of opposing affidavits 'prior to the day of hearing.'The identical provision appears in Code Ann. § 110-1203 and was passed on in Simmons v. State Farm, etc., Ins. Co., 111 Ga.App. 738, raised in the trial court.Since appellant's page 739, 143 S.E.2d at page 56 that 'There may be situations where a failure to serve the opposing affidavits prior to the day of hearing will result in the trial court refusing with propriety to allow them to be filed, or situations where the court may allow them to be filed but in such event grant a motion for continuance.'This statement was based upon the 'large discretion' placed in the judge hearing the motion.Therefore, even if the question of timeliness had been raised below, the trial court could in the exercise of its discretion have permitted the affidavit to be made a part of the record in undertaking to decide the summary judgment motion.See alsoHester v. Wilson, 117 Ga.App. 435(4), 160 S.E.2d 859andWakefield v. A. R. Winter Co., Inc., 121 Ga.App. 259, 264, 174 S.E.2d 178.It was pointed out in this latter case that Malone v. Ottinger, 118 Ga.App. 778, 165 S.E.2d 660, which is relied upon by appellant, is not a binding precedent for the reason it was only a two-judge opinion.See alsoHarrington v. Frye, 116 Ga.App. 755, 159 S.E.2d 84.

2.Although two affidavits were filed by defendant, the single affidavit filed by plaintiff presented evidence sufficient to create a genuine issue as to material facts.Code Ann. § 81A-156(c);Holland v. Sanfax Corporation, 106 Ga.App. 1, 126 S.E.2d 442.Additionally, there is presented a question of credibility of the witnesses which cannot be decided in a summary judgment proceeding.Columbia Drug Co. v. Cook, 127 Ga.App. 490, 194 S.E.2d 286 and citations therein.Among these material...