Opinion
46542, 46543.
SUBMITTED SEPTEMBER 9, 1971.
DECIDED OCTOBER 1, 1971.
Action on notes. DeKalb State Court. Before Judge Mitchell.
J. M. Grubbs, Jr., Adele Platt, for appellant.
Harold B. Thompson, for appellee.
Plaintiff appellant brought a complaint against defendant appellee and another, to recover sums due on notes executed in favor of plaintiff. The trial court sustained the motion to dismiss as to appellee and plaintiff brings this appeal. Held:
1. "A motion to dismiss a complaint will not lie unless it appears as a matter of law, beyond doubt, that the plaintiff cannot, by competent evidence, demonstrate that he is entitled to relief thereunder." Bulloch County Hospital Authority v. Fowler, 124 Ga. App. 242 (1b) ( 183 S.E.2d 586); Harper v. DeFreitas, 117 Ga. App. 236 (1) ( 160 S.E.2d 260). Appellant's complaint properly sets forth a claim upon which relief may be granted.
2. Assuming the trial court treated and considered the motion to dismiss as a motion for summary judgment, there were no supporting affidavits, depositions, admissions, or other required extra pleading matters presented. Brackett v. H. R. Block Co., 119 Ga. App. 144 (1) ( 166 S.E.2d 369); Travelers Ins. Co. v. Johnson, 118 Ga. App. 616 (3) ( 164 S.E.2d 926); Davis v. American Acceptance Corp., 119 Ga. App. 265 ( 167 S.E.2d 222), the latter case involving the allowance to the opposing party of additional time to present evidence. It was error to dismiss appellant's complaint in both cases.
Judgment reversed. Bell, C. J., and Pannell, J., concur.