Wong v. Aluminum Supply Co.

248 S.E.2d 175, 147 Ga. App. 100, 1978 Ga. App. LEXIS 2791

• Court: Court of Appeals of Georgia
• Decided: September 6, 1978
• Docket: 56069
• Status: Published

Opinion

McMurray, Judge.

This is a suit on account. The plaintiffs complaint avers that defendant is indebted to plaintiff for building materials furnished to defendant and used by defendant in construction of a motel.

The defendant made his motion for summary judgment, supported by affidavits, contending that he was merely the general superintendent and not the general contractor on the construction project. Plaintiffs response to defendant’s motion for summary judgment, also supported by affidavits, contends that defendant was in fact the contractor on the construction project, conducted himself as such and ordered materials from plaintiff in that capacity. The trial court denied defendant’s motion for summary judgment, and the case went to trial before a jury and a verdict was returned in favor of plaintiff. Defendant appeals from the order denying his motion for summary judgment. Held:

1. Plaintiffs motion to dismiss the appeal is denied.

2. Under the recent case of Phillips v. Abel, 141 Ga. App. 291 (1) (233 SE2d 384), this court has held "[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” See also Hiller v. Culbreth, 139 Ga. App. 351 (228 SE2d 374); Mullinax v. Singleton, 139 Ga. App. 704, 705 (229 SE2d 518); Melton v. Bow, 145 Ga. App. 272, 275 (5) (243 SE2d 590).

Judgment affirmed.

Quillian, P. J., and Webb, J., concur. Stanley E. Harris, Jr., for appellant. Frank R. Cullum, for appellee.