208 S.E.2d 622 | Ga. Ct. App. | 1974
T & W FARM SUPPLY, INC.
v.
McCALL.
Court of Appeals of Georgia.
Jones, Rountree & Solomon, George M. Rountree, for appellant.
Miles & McCoy, Peyton Miles, for appellee.
WEBB, Judge.
1. By supplemental record forwarding the order of the trial court it affirmatively appears that the court exercised, and did not abuse, its discretion in allowing an affidavit in opposition to the motion for summary judgment to be filed and served on the day of the hearing. Consequently no error appears. Malone v. Ottinger, 118 Ga. App. 778, 782 (165 SE2d 660); Supreme Oil Co. v. Brock, 129 Ga. App. 863 (1) (201 SE2d 659) and cits.; Johnson v. Frazier, 121 Ga. App. 212 (1) (173 SE2d 434).
2. While the instant case is similar to Farmers Mut. Exchange v. Sisk, 131 Ga. App. 206 (205 SE2d 438), where the facts were not in dispute, the affidavit offered here in opposition to the motion prevents our holding that movant has carried its burden of demonstrating that there is no genuine issue as to any material fact and that movant is entitled to judgment as a matter of law.
Judgment affirmed. Pannell, P. J., and Evans, J., concur.