This is an appeal from a judgment in favor of plaintiff-appellee, Marsh & McLennan, Inc., against the defendant-appellant, Skylark Enterprises, Inc., in the amount of $576. The judgment is based on a complaint alleging that the defеndant was indebted to the plaintiff on open account in the amount of $1,396.50, due for aviation insurance allegedly purchased from the plaintiff as an insurance agent. The defendant answered, denying any indebtedness. Thereafter, two separate motions for summary judgment in favor of the plaintiff wеre filed, heard, and denied; and the case proceeded to trial before the judge sitting without a jury. The evidence contains numerous documents, such as correspondence, bills, policies of insurance, a bindеr, and information relative to an additional binder, as well as conflicting tеstimony of the' parties in reference to the inquiry, negotiation for, and the alleged issuance of binders and insurance policy, including an application therefor. The defendant filed a motion for new trial which was later amended, heard, and overruled. Error is enumerated on the earliеr rulings on the motions for summary judgment, the judgment, and on the overruling of the amended motion for new trial. The cross appeal is from the same judgment alleging еrror in that the court failed to render judgment for the full amount sought in the trial court. Held:
1. The motion for summary judgment being a summary proceed
*236
ing, under
Code Ann.
§ 6-701 (4) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073) and
Code Ann.
§ 81A-156 (h) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238), is not subject “to review by direct appeal or оtherwise,” unless the requirements that the lower court certify it for direct aрpeal are met. It cannot be reviewed under
Code Ann.
§ 6-701 (a-2) or (b) but can only bе considered on appeal under
Code Ann.
§ 6-701 (a-4). Under the present law, this cоurt, after a trial, cannot go back of the same, and, based on anсillary rulings on motion for summary judgment, consider them. See
Moulder v. Steele,
2. Since the evidence here is conflicting, there is no merit in the general or special grounds of the amended motion for new trial, all of which are grounded in thе complaint that the evidence is insufficient to support the verdict. Frоm the letters, correspondence, oral testimony and exhibits, including bills, policies of insurance, application and binders, the court, acting without the intervention of a jury, found for the plaintiff in its suit for insurance premiums, a definitе sum, based on approximately 40 days of insurance coverage by reason of the binders issued, holding the policy was never validly issued and accepted by the parties to the contract. The errors enumerated in the main appeal are not meritorious.
3. While the court, acting аs a jury, could have found for the plaintiff the full amount for which it was suing on open account, based on the evidence, it made its determination for а lesser amount based on the admission of an insurance executive thаt he did not intend to extend the binders beyond October 25 unless the application for the insurance was received, and awarded judgment for the 40 days the binders were allegedly in effect. While an application was received thereafter which was damaging to the defendant as to covеrage sought, nevertheless, defendant refused to accept the рolicy as written, and in considering the entire voluminous *237 record, showing confliсting testimony and exhibits, this court cannot reverse the lower court, who heard the testimony and examined the exhibited documents. The court did not err in awarding the lesser amount, and the error enumerated in the cross appeal is not meritorious.
Judgment affirmed on main appeal and on cross appeal.