Smith v. Taylor

120 Ga. App. 389 | Ga. Ct. App. | 1969

Hall, Judge.

This is an action for damages for the alleged illegal foreclosure and sale by the defendants of the plaintiff’s real property. The trial court overruled the defendants’ ■motion for summary judgment, stating in its order that the issues presented were not answerable as a matter of law and the case was one for the jury. However, the court, although recognizing “that cases should not be sent up simply as a matter of course,” granted the petition filed by the defendants requesting immediate review.

Argued April 8, 1969 Decided September 24, 1969. Hatcher, Meyerson, Oxford & Irvin, Clifford Oxford, for appellants. Long & Siefferman, Calhoun A. Long, for appellee.

The record in this court, containing the evidence that was before the trial court, shows that the property was sold on January 2, 1968,. the first Tuesday in January, but fails to show that the property was advertised to be sold on the first Tuesday in January 1968, as required by law. Code Ann. § 37-607. Accord Rooks v. Citizens Bank of Colquitt, 176 Ga. 896 (169 SE 106); Oliver v. Wayne, 183 Ga. 316 (188 SE 535). In pleading and in argument the plaintiff stated that during December 1967 the defendants ran an advertisement for foreclosure, but the plaintiff has made no admission that the property was advertised to be sold in January 1968, and the evidence presented by the defendant shows that it was advertised to be sold at another time. For this reason, irrespective of whether the pleadings and evidence presented other genuine issues of fact, the trial court did not err in overruling the defendants’ motion for summary judgment.

Judgment affirmed.

Jordan, P. J., and Whitman, .1., concur.