Wall v. Citizens and Southern Bank of Houston County

• Decision Date: 09 February 1978
• Docket Number: No. 55141,No. 2,55141,2
• Citation: 243 S.E.2d 271,145 Ga.App. 76
• Court: Georgia Court of Appeals
• Parties: T. H. WALL, III v. CITIZENS & SOUTHERN BANK OF HOUSTON COUNTY

Page 271

243 S.E.2d 271

145 Ga.App. 76

T. H. WALL, III v. CITIZENS & SOUTHERN BANK OF HOUSTON COUNTY.

No. 55141.

Court of Appeals of Georgia, Division No. 2.

Feb. 9, 1978.

Rehearing Denied Feb. 28, 1978.

Thomas Hylmon Wall, III, pro se.

Cowart, Varner & Harrington, Pamela M. Richards, Warner Robins, for appellee.

WEBB, Judge.

Thomas H. Wall, III appeals from a grant of summary judgment in favor of the bank in its suit against him on a promissory note. We agree with certain rulings of the trial court as indicated in division 1 but, for reasons stated in division 2, we reverse the grant of summary judgment to the movant bank.

1. The bank had taken no action to collect or accelerate the balance due until the instant suit was filed, and we must reject Wall's contention that the statute of limitation began to run upon the entire claim at his default in paying the first installment. Slaten v. College Park Cemetery Co., 54 Ga.App. 451, 188 S.E. 257 (1936); Glass v. Grant, 46 Ga.App. 327, 328(2), 167 S.E. 727 (1933). Accordingly, we do not disturb the various rulings of the trial court disallowing the defense of the statute of limitation as a bar to the action.

2. But we must reverse the grant of summary judgment to the bank because the trial court erroneously allowed in support of the motion a paper entitled "SUPPLEMENTAL AFFIDAVIT TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT" which was not filed or served until the hearing on the motion. It is conceded that Wall objected to this affidavit as not being timely submitted, and accordingly no issue as to waiver of error is involved here. See Clayton McLendon, Inc. v. McCarthy, 125 Ga.App. 76, 77(1), 186 S.E.2d 452 (1971); Wakefield v. A. R. Winter Co., Inc., 121 Ga.App. 259, 264, 174 S.E.2d 178 (1970). Nor does the doctrine of harmless error apply since, pretermitting the question of whether summary judgment would have been proper had the affidavit been timely submitted, it is clear that summary judgment would be improper without its consideration because otherwise Wall's defenses were not negated. See Hurston v. Dealer Service Plan, 141 Ga.App. 148(2), 232 S.E.2d 641 (1977) and cases cited.

We thus come to the question of whether a "supplemental" affidavit in support of a motion for summary judgment may, over objection, be submitted at the hearing, a question noteworthy for its novelty. While there is express statutory authority under CPA § 6(d) (Code Ann. § 81A-106(d)) for the opposing party to serve counter-affidavits one day before the hearing or, with permission of the court, "at some other time," meaning the day of the hearing (Sasser & Co. v. Griffin, 133 Ga.App. 83, 88(3a), 210 S.E.2d 34 (1974)), there is no similar "day of the hearing" provision for the movant's affidavits. And although CPA § 56(e) (Code Ann. § 81A-156(e)) does provide that "(t)he court may permit affidavits to be supplemented or opposed by . . . further affidavits," it is silent as to when the supplemental affidavits may be submitted or the conditions under which they may properly be received. In principle we see no distinction between "original" and "supplemental" affidavits insofar as timeliness is concerned, since in either case the value to be served is the opposite party's opportunity to respond and resist final judgment being rendered against himself on the merits ¹; and, no sufficient reason to do otherwise having been made to appear, we treat this "supplemental" affidavit as if it were an "original" affidavit governed by CPA §§ 56(a) and (c), and 6(b) and (d) (Code Ann. §§ 81A-156(a), (c); 106(b), (d)).

The first two of those subsections provides that a party may "move with . . . supporting affidavits for a summary judgment" which "shall be served at least 30 days before the time fixed for the hearing." Additionally, § 6(d) specifically provides: "When a motion is supported by affidavit, the affidavit shall be served with the motion . . . " which in the case of a motion for summary judgment is "at least 30 days before the time fixed for the hearing" (CPA § 56(c), supra; Davis v. American Acc. Corp., 119 Ga.App. 265, 167 S.E.2d 222 (1969); Riverhill Community Assn. v. Cobb County Bd. of Commr's, 236 Ga. 856, 859(6), 226 S.E.2d 54 (1976)), or 30 days prior to the granting of summary judgment if no hearing is held. Peoples Financial Corp. of Rome v. Jones, 134 Ga.App. 649, 215 S.E.2d 711 (1975). Following the counterpart federal rules it has been flatly held that Rules 56 and 6(d) leave no room for judicial discretion and require the striking of a supporting affidavit not served along with a timely-filed motion for summary judgment. Canning v. Star Publishing Co., 19 F.R.D. 281 (D.C.Del., 1956).

We are of the view, however, that the requirement of simultaneous filing of the motion and supporting affidavits is not absolute but that CPA § 6(b) (Code Ann. § 81A-106(b)) would, in a proper case, authorize the trial court to extend the period for filing movant's affidavits. That section provides: "When . . . an act is required or allowed to be done at or within a specified time, . . . the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period extended if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect . . . .

A counterpart of this section was considered in relation to summary judgment procedure in Nationwide Mut. Ins. Co. v. Chantos, 21 N.C.App. 129, 203 S.E.2d 421 (1974), reversing a grant of summary judgment where movant's affidavits were improperly allowed at the hearing. We find that case persuasive and we adopt it here as follows: Rule 6(d) specifically provides: "When a motion is supported by affidavit, the affidavit shall be served with the motion." This provision of Rule 6(d) applies to affidavits in support of a Rule 56 motion for summary judgment.

"Our ruling upon this question is supported by recognized authors on the subject of the federal rules after which our rules are patterned.

" 'The moving party should serve his supporting affidavits, if any, with his motion; and normally the adverse party should serve his opposing affidavits, if any, prior to the day of hearing.' 6 Moore's Federal Practice, 2d ed., p. 2820. 'If the party seeking summary judgment desires to use affidavits, he should serve supporting affidavits that meet the testimonial requirements of Rule 56(e) with his motion.' Id., p. 2256. 'According to Rule 6(d), any affidavits in support of the summary judgment motion also should be served at the time the motion is served, unless the court exercises its discretion under Rule 6(b) and permits later service.' 10 Wright and Miller,...