Taylor v. B. & W. Electric Supply Co.

215 S.E.2d 530, 134 Ga. App. 634, 1975 Ga. App. LEXIS 2109

• Court: Court of Appeals of Georgia
• Decided: April 24, 1975
• Docket: 50215
• Status: Published

Opinion

Clark, Judge.

This is an appeal by a co-defendant electrical subcontractor from a summary judgment granted a plaintiff materialman for the amount sued for materials supplied in construction of a school building.

This appeal does not involve the co-defendant who was the general contractor and who tendered into court the amount for which a judgment had been sought against it as co-defendant, this being done as a stakeholder. This co-defendant also pleaded a cross claim against the co-defendant subcontractor.

In seeking its summary judgment against the subcontractor, plaintiff relied upon an affidavit from its president. The co-defendant subcontractor filed a counter-affidavit along with a motion to strike plaintiffs affidavit or a portion thereof. Without passing on this latter motion the trial judge entered a judgment for the plaintiff.

A review of the complex facts¹ involved in this case indicates the counter-affidavit filed by the subcontractor created genuine issues of material fact in support of its defenses and counterclaim. Accordingly, the judgment below must be reversed. Code Ann. § 81A-156; Smith v. Sandersville Production Credit Assn., 229 Ga. 65 (189 SE2d 432); Watkins v. Nationwide Ins. Co., 113 Ga. App. 801 (149 SE2d 749).

In view of our finding the existence of such conflict as to material facts it is unnecessary for us to pass upon the remaining enumerations of error.

Judgment reversed.

Pannell, P. J., and Quillian, J., concur. Harrison, Martin, Childs & Foster, H. Fielder Martin, John R. Grimes, for appellant. B. W. Crecelius, for appellees.

1 It is suggested to the bar that lawyers should number paragraphs in affidavits filed in summary judgment proceedings.