*1 (а2)). (Code substantially This certificate Ann. §6-701 The motion to dismiss denied. complies with the law. general grounds grant of а trial on is the new 2. This first case, special ground. one by the was demanded consider whether the verdict will Hwy. Dept., Queen v. State law and evidence. Johnson, Goodyear &c. Co. v. Tire transcript An examination
App. 278 as to the value of confliсt the evidence shows a definite consequential to the land taken and the land demand the verdict. Thе evidence therefore did not taken. JJ., Quillian Whitman, concur. January Argued September 11, 1971. 197 0 Decided Jr., Genеral, Hill, Bolton, Attorney N. Execu- K. Harold Arthur General, Chambers, Assistant Attorney tive Assistant Richard General, Sherrell, Attornеy Deputy Attorney E. Assistant Robert General, Douglas,
Dubignon PRODUCTS,
45688. INC. WATKINS ENGLAND et al. January 1971. October 197 0 Decided
Submitted *2 Gunter, Sims, Gunter, Hulsey B. Samuel Kenyon, & William Oliver, Bell,
Jack G. summary judgment allеges Judge. Plaintiff’s Evans, F. J. dated December was sent that a certain letter Products, Kinzie, manager Inc. to Elbert as collection Watkins advising M. him of his to return merchandise England, days. within 30 summary judgment alleges:
Paragraph of the motion any "That Elbert not return merchandise at returned subsequent date.” alleged attempted to
The dеfendant’s answer that he had $1,000 more than worth salable merchandise *3 to the of seller. It is noted that the affidavit refers return mer- 5, 1968, not chandise December before. after all, summary judgment completely First of the movant mailing prove letter so failed to of a to the defendant presumption requires create that same received. The law addressed, proof placed envelope proрerly that the an letter thereto, Bldg. postage posted. with affixed and See Assn. National (3) (47 Quin, 962); 120 Ga. Bankers Mut. Cas. v. SE Co. (2) (56 Talbotton, 429); Peoples Bank SE First Nat. Carmichael, 811); Rawleigh Bank 358); Burney, Ninth Medical Co. SE (3) (139 & M. District A. Power Wofford Stоckton, App. 542, Enterprises, SE Sullivan Next, although given movant had not shown that it had merchandise, right a notice of his to return salable defendant judgment positively alleges summary "Elbert did not any subsequent date.” he returned merchandise at The
affidavit fails "show that the affiant is therein,” comply and to the matters stated thus fails to with (Ga. (с)) pp. CPA Sec. Code Ann. 81A-156 as summary judgment. under to evidence motions for Hancock v. Han- cock, Gately, Chandler v. (la) (167 Nevels v. Detroiter Mobile Absolutely nothing shown therein many agents employed corporation to how said who were authorized merchandise, agencies many receiving to receive rеturned or or how purpose, stations it owned and for that or the location same, and thus as to whether or mer- not defendant returned beyond competence knowledge chandise is of the witness. It the оbligation summary judgment of the movant for pos- to show itively the truth of which are judgment the matters essential to a behalf, its do. this does not
Further, allegation the mere in defendant’s answer that he had credit, returned salаble merchandise until refuted or contra- manner, dicted some establishes in his so. behalf that did respondеnt summary The judgment under a motion for has no whatever; proving burden summary the burden of his ato judgment lies with the movant. аbove,
For all of the reasons the lower did err court in de- nying summary the motion judgment. Deen, J., Hall, J., P. spe- cоncurs concurs
cially.
Hall, Presiding Judge, concurring I specially. concur with the holding denying trial court not err in the motiоn for summary judgment for the genuine reason that there is a issue principal whether the defendant recеived the letter.
I do language not concur opinion with the td the effect an affidavit must
personal knowledge. contrary holding in Wakefield *4 (174 178): Co., 259, A. App. v. R. 121 Winter 264 SE2d "The defendant also contends that the licensed architect’s affidavit hearsay because it doеs not it personal (e). knowledge. Code Ann. 81A-156 'This does not mean the affidavit must contain a in statement those "A words. jurat statement to the effect that the upon affidavit is made Act, comply with the generally to sufficient” personal knowledge knowledge may bymet requirement personal . the . . but the evidence, objection to the form of least when no at material Corp., trial Holland made court. affidavit was Sanfаx (126 Ins. 1, v. American Motorists SE2d Lawson App. (5th States, 724, Chambers v. United Cir. Corp., 217 F2d 1966).’ (8th v. Detroiter Mobile Nevels F2d Cir. (169 716), App. cert. dеn. 120 Ga. Inc., App. Lawhorn, Chevrolet, App. Central affidavit, filing there no and time of of the As to the servicе harm the trial court or showing any objection made in Co., Ins. Farm Mut. Auto. v. State to the defendant. See Simmons 55); Hаrrington Frye, Pulp &c. Wood v. Brunswick Ottinger, supra. Malone two- 660), binding was a precedent is not a reason opinion.” Wakefield, supra, In we held judge competent was to custom appeared that the affiant by fact he ary the construction business virtue practice Nevels, supra, In held that it architect. we liсensed stated testify as affirmatively appeared that affiant was by facts respect had cеrtain company action the taken with what manager of the com general he was the virtue of the fact he stated plaintiff’s collection that he was the pany. Here affiant stated manager. mаny years ago should never "exalt Cardozo said
As Justice Defore, People 242 N. Y. form above substance.” NE al. et
45768. WINSTON v. CITY OF AUSTELL Myrtle Lovejoy died the result of Presiding Judge. Jordan, fire in the cell in which burns received from a which started jail City of Austell. confined in the she was City of Austell sought from the administratrix Her