Smith v. Allen

153 S.E.2d 648, 115 Ga. App. 80, 1967 Ga. App. LEXIS 1009

• Court: Court of Appeals of Georgia
• Decided: January 6, 1967
• Docket: 42294
• Status: Published

Opinion

Bell, Presiding Judge.

H. G. Smith sought to dispossess Blanche Allen, as a tenant at sufferance, under Code § 61-301. After defendant had filed a counter affidavit and given bond and the sheriff had returned the proceedings to the superior court, plaintiff moved for summary judgment. Plaintiff enumerates error on the trial court’s denial of his motion for summary judgment. As plaintiff has failed to enumerate any error on the trial court’s omission to make an order, pursuant to Code Ann. § 110-1204, specifying whether certain facts appear without substantial controversy, we can determine only whether the court erred in denying the motion as to the whole case. Thus it is unnecessary for us to decide whether the admissible facts set forth in the supporting and opposing affidavits showed that plaintiff was entitled to a writ of possession and a judgment in some amount under Code Ann. § 61-305. Plaintiff’s affidavit, in which he stated that in his opinion the reasonable monthly value of the property was $500, though this statement was not disputed, was not effective to eliminate from the case the issue as to the worth of the rent of the premises. The question of the value of property is peculiarly one for the jury, and the plaintiff’s opinion as to its value was not binding upon the court. See Hoard v. Wiley, 113 Ga. App. 328, 334 (147 SE2d 782) and citations. As this genuine issue of material fact remained in the case, the court did not err in denying the motion for summary judgment.

Jordan and Eberhardt, JJ., concur. Submitted September 7, 1966 Decided January 6, 1967 Rehearing denied January 24, 1967. Zorn & Royal, William A. Zorn, for appellant. Albert E. Butler, for appellee.

Judgment affirmed.