Avco Financial Services Leasing Co. v. Mullins

Court of Appeals of Georgia

Avco Financial Services Leasing Co. v. Mullins

262 S.E.2d 266, 152 Ga. App. 120, 1979 Ga. App. LEXIS 2836

CourtCourt of Appeals of Georgia

DecidedNovember 1, 1979

Docket58523

StatusPublished

Cited by3 cases

This text of 262 S.E.2d 266 (Avco Financial Services Leasing Co. v. Mullins) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avco Financial Services Leasing Co. v. Mullins, 262 S.E.2d 266, 152 Ga. App. 120, 1979 Ga. App. LEXIS 2836 (Ga. Ct. App. 1979).

Pincite

Opinion

Birdsong, Judge.

This case is before us based upon the grant of an interlocutory appeal. Appellant Avco Financial Services Leasing Co. has urged two grounds as the basis of its motion. The first argues that it was error for the trial court to consider certain admissions filed in response to a request for admissions because the admissions were [121]*121signed by counsel for the appellee Mullins rather than by Mullins himself. This argument is not meritorious inasmuch as admissions may be signed by either the party or his counsel. Hilton Hotels Corp. v. Withrow Travel Service, 150 Ga. App. 435 (258 SE2d 59).

Submitted September 12, 1979 — Decided November 1,1979. Sam Johnson, for appellant. Robert L. Collins, Jr., for appellee.

The second ground urged by Avco is that it was error for the trial court to deny Avco’s motion for summary judgment. In his fifth defensive answer, Mullins asserted the defense of fraud in that Avco was aware of a change in law that would render the leased equipment obsolete, failed to inform Mullins of that change, and in effect "unloaded” obsolete equipment on Mullins. This asserted defense of fraud has not been pierced in any way by Avco by its own amended pleadings or affidavits. It was not error for the trial court to deny Avco’s motion for summary judgment where issues of fact remain for determination. Saunders v. Vikers, 116 Ga. App. 733, 734 (158 SE2d 324), Scales v. Peevey, 103 Ga. App. 42, 46 (118 SE2d 193).

In view of the foregoing, it is concluded that the grant by this court of the interlocutory appeal was improvident. The appeal is dismissed and the case returned to the trial court for disposition.

Appeal dismissed.

Quillian, P. J., and Smith, J., concur.

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Birdsong, Judge.

This case is before us based upon the grant of an interlocutory appeal. Appellant Avco Financial Services Leasing Co. has urged two grounds as the basis of its motion. The first argues that it was error for the trial court to consider certain admissions filed in response to a request for admissions because the admissions were [121]*121signed by counsel for the appellee Mullins rather than by Mullins himself. This argument is not meritorious inasmuch as admissions may be signed by either the party or his counsel. Hilton Hotels Corp. v. Withrow Travel Service, 150 Ga. App. 435 (258 SE2d 59).

Submitted September 12, 1979 — Decided November 1,1979. Sam Johnson, for appellant. Robert L. Collins, Jr., for appellee.

The second ground urged by Avco is that it was error for the trial court to deny Avco’s motion for summary judgment. In his fifth defensive answer, Mullins asserted the defense of fraud in that Avco was aware of a change in law that would render the leased equipment obsolete, failed to inform Mullins of that change, and in effect "unloaded” obsolete equipment on Mullins. This asserted defense of fraud has not been pierced in any way by Avco by its own amended pleadings or affidavits. It was not error for the trial court to deny Avco’s motion for summary judgment where issues of fact remain for determination. Saunders v. Vikers, 116 Ga. App. 733, 734 (158 SE2d 324), Scales v. Peevey, 103 Ga. App. 42, 46 (118 SE2d 193).

In view of the foregoing, it is concluded that the grant by this court of the interlocutory appeal was improvident. The appeal is dismissed and the case returned to the trial court for disposition.

Appeal dismissed.

Quillian, P. J., and Smith, J., concur.

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Bluebook (online)

262 S.E.2d 266, 152 Ga. App. 120, 1979 Ga. App. LEXIS 2836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avco-financial-services-leasing-co-v-mullins-gactapp-1979.

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