Hendryx v. Hendryx

149 Ga. App. 672 | Ga. Ct. App. | 1979

Shulman, Judge.

In this appeal from an action to domesticate a judgment, both parties concede that the trial court erred in granting the summary judgment without considering a deposition on file. The point is well taken. As the trial court could not have determined that no genuine issue of material fact existed, the summary judgment could not have been properly entered in favor of either party. Realty Contractors, Inc. v. C & S Nat. Bank, 146 Ga. App. 69 (245 SE2d 342); Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612 (3) (247 SE2d 197). See also, Mathis v. R. H. Smallings & Sons, 125 Ga. App. 810 (189 SE2d 122), holding that inconsistencies in the testimony of the same party may preclude summary judgment.

Argued February 13, 1979 — Decided April 19,1979. Clein & Heimanson, Neil L. Heimanson, for appellant. Bates, Baum & Landey, Benjamin Landey, for appellee.

Judgment reversed and remanded.

Deen, C. J., and McMurray, P. J., concur.