This is аn appeal from denial of defendant’s motion for summary judgment accompanied by the requisite review certificate. In addition to presenting the usual dispute between the attorneys as to existence of genuine issues concerning material facts warranting submission to a jury, we are called upon to rule as to the timeliness of the filing of plaintiffs response affidavit.
1. Appellant’s advocate argues in behalf of defendant thаt the trial judge should not have considered the contents of plaintiffs rebuttal affidavit because it was not filed until the date of the hearing. The record discloses this point was not raised in the triаl court. Since appellant’s counsel permitted cоntents of this affidavit to be considered by the judge without objectiоn, we hold
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there was a waiver of the provisions of Code Ann. § 81A-156 (c) which provides for filing of opposing affidavits "prior to the day of hearing.” The identical provision appears in Code Ann. § 110-1203 and was passed on in
Simmons v. State Farm &c. Ins. Co.,
2. Although two affidavits were filed by defendant, the single affidavit filed by plaintiff prеsented evidence sufficient to create a genuine issuе as to material facts. Code Ann. § 81A-156 (c);
Holland v. Sanfax Corporation,
"By now it has become elementary in our summary judgment law that in order to pierce allegations of material fact contained in the plaintiffs рetition, the evidence offered by the defendant on motiоn for summary judgment must unequivocally refute those allegations and must сlearly show what is the truth of the matter
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alleged. It is not sufficient if the evidence merely preponderates toward defendаnt’s theory rather than plaintiffs or if it does no more than disclose circumstances under which satisfactory proof of the plaintiffs case on trial will be highly unlikely.
Watkins v. Nationwide &c. Ins. Co.,
Judgment affirmed.