Vann v. Bice

Quillian, Judge.

The appellant filed a claim against the appellee for $350. The appellee filed an answer and counterclaim. The appellant then filed a motion for summary judgment which was supported by affidavits. The motion was set for a hearing on January 31, 1972. The appellee on January 31, 1972, the date of the hearing, filed an amendment to his answer together with an affidavit in which he stated that he was not indebted to the appellant and had in fact overpaid him in the amount of $77. At the hearing the trial judge on his own motion continued the hearing to "permit defendant (appellee) to amend and instructed counsel for both parties to submit memoranda briefs.” On June 5, 1972, the motion for summary judgment was overruled and the appellant appealed.

Held:

1. The appellant contends that the trial judge erred in considering the appellee’s affidavit because it was not filed prior to the date of the hearing and no order of the trial judge was entered allowing the same to be filed.

Code Ann.

§ 81A-156 (c) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238). However, in the case sub judice the trial judge continued the hearing and passed an order which allowed the appellee to amend. The purpose of the statute is to prevent a party from being surprised the day of the *580 hearing by an affidavit that he would not be in a position to answer. The enumeration of error is without merit.

Argued September 12, 1972 Decided November 16, 1972.

F. H. Boney, for appellant.

Joseph E. Loggins, for appellee.

2. There was a material issue of fact and the overruling of the motion for summary judgment was not error.

Judgment affirmed.

Hall, P. J., and Pannell, J., concur.