Avco Financial Services Leasing Co. v. Mullins

152 Ga. App. 120 | Ga. Ct. App. | 1979

Birdsong, Judge.

This case is before us based upon the grant of an interlocutory appeal. Appellant Avco Financial Services Leasing Co. has urged two grounds as the basis of its motion. The first argues that it was error for the trial court to consider certain admissions filed in response to a request for admissions because the admissions were signed by counsel for the appellee Mullins rather than by Mullins himself. This argument is not meritorious inasmuch as admissions may be signed by either the party or his counsel. Hilton Hotels Corp. v. Withrow Travel Service, 150 Ga. App. 435 (258 SE2d 59).

Submitted September 12, 1979 — Decided November 1,1979. Sam Johnson, for appellant. Robert L. Collins, Jr., for appellee.

The second ground urged by Avco is that it was error for the trial court to deny Avco’s motion for summary judgment. In his fifth defensive answer, Mullins asserted the defense of fraud in that Avco was aware of a change in law that would render the leased equipment obsolete, failed to inform Mullins of that change, and in effect "unloaded” obsolete equipment on Mullins. This asserted defense of fraud has not been pierced in any way by Avco by its own amended pleadings or affidavits. It was not error for the trial court to deny Avco’s motion for summary judgment where issues of fact remain for determination. Saunders v. Vikers, 116 Ga. App. 733, 734 (158 SE2d 324), Scales v. Peevey, 103 Ga. App. 42, 46 (118 SE2d 193).

In view of the foregoing, it is concluded that the grant by this court of the interlocutory appeal was improvident. The appeal is dismissed and the case returned to the trial court for disposition.

Appeal dismissed.

Quillian, P. J., and Smith, J., concur.