Hurston v. Dealers Service Plan, Inc.

Court of Appeals of Georgia

Hurston v. Dealers Service Plan, Inc.

232 S.E.2d 641, 141 Ga. App. 148, 1977 Ga. App. LEXIS 1800

CourtCourt of Appeals of Georgia

DecidedJanuary 28, 1977

Docket53098

StatusPublished

Cited by6 cases

This text of 232 S.E.2d 641 (Hurston v. Dealers Service Plan, Inc.) 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

Hurston v. Dealers Service Plan, Inc., 232 S.E.2d 641, 141 Ga. App. 148, 1977 Ga. App. LEXIS 1800 (Ga. Ct. App. 1977).

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Opinion

Smith, Judge.

This case is an action on a promissory note. The defendant admitted the execution of the note sued upon but set up affirmative defenses of res judicata or estoppel by judgment based upon a prior judgment in favor of defendant upon an action on a note of the same amount, and the defense that a new note and cash payment had been accepted by the plaintiff in settlement of, and in novation of, the note sued upon. Plaintiffs motion for summary judgment was sustained by the trial judge and defendant appeals. Held:

1. The defenses pleaded were sufficient to admit of proof in support thereof.

2. On motion for summary judgment by a plaintiff, the burden was upon the plaintiff to produce evidence of the necessary certitude, that is, that demanded a finding as a matter of law, that the defenses so pleaded were untrue. No such proof was offered. See Stratton & McLendon v. Cameron-Brown Co., 140 Ga. App. 430. See Roberson v. Evergreen & Associates, Inc., 134 Ga. App. 881 (216 SE2d 693). The deposition of the defendant taken by the plaintiff fails to accomplish this purpose.

3. Accordingly, the motion of the plaintiff, treated either as a motion for judgment on the pleadings or as a motion for summary judgment, was improperly sustained.

Judgment reversed.

Bell, C. J., and McMurray, J., concur.

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Smith, Judge.

This case is an action on a promissory note. The defendant admitted the execution of the note sued upon but set up affirmative defenses of res judicata or estoppel by judgment based upon a prior judgment in favor of defendant upon an action on a note of the same amount, and the defense that a new note and cash payment had been accepted by the plaintiff in settlement of, and in novation of, the note sued upon. Plaintiffs motion for summary judgment was sustained by the trial judge and defendant appeals. Held:

1. The defenses pleaded were sufficient to admit of proof in support thereof.

2. On motion for summary judgment by a plaintiff, the burden was upon the plaintiff to produce evidence of the necessary certitude, that is, that demanded a finding as a matter of law, that the defenses so pleaded were untrue. No such proof was offered. See Stratton & McLendon v. Cameron-Brown Co., 140 Ga. App. 430. See Roberson v. Evergreen & Associates, Inc., 134 Ga. App. 881 (216 SE2d 693). The deposition of the defendant taken by the plaintiff fails to accomplish this purpose.

3. Accordingly, the motion of the plaintiff, treated either as a motion for judgment on the pleadings or as a motion for summary judgment, was improperly sustained.

Judgment reversed.

Bell, C. J., and McMurray, J., concur.

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Bluebook (online)

232 S.E.2d 641, 141 Ga. App. 148, 1977 Ga. App. LEXIS 1800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurston-v-dealers-service-plan-inc-gactapp-1977.

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