McLean v. Oakmont Hosiery Mills

Full title: McLEAN v. OAKMONT HOSIERY MILLS

Court: Court of Appeals of Georgia

Date published: Jul 13, 1971

183 S.E.2d 522 (Ga. Ct. App. 1971)

183 S.E.2d 522

Opinion

46300.

SUBMITTED JUNE 1, 1971.

DECIDED JULY 13, 1971.

Action on account. Jenkins Superior Court. Before Judge Hawkins.

Odom Dendy, F. H. Dendy, for appellant.

Spivey Carlton, Milton A. Carlton, for appellee.

PANNELL, Judge.

Oakmont Hosiery Mills brought an action on account against Mrs. Attie Phillips McLean as executrix of the estate of John C. McLean, deceased. Defendant made a motion for summary judgment based upon certain allegations of fact, on none of which proof was offered on motion for summary judgment. The plaintiff introduced affidavits showing the correctness of the account (disregarding those portions of the affidavits relating to transactions with the deceased had by the opposing party). The trial judge overruled the defendant's motion for summary judgment and the defendant, with proper certificate, appealed to this court. Held:

On motion for summary judgment, the defendant must disprove some essential element of the plaintiff's case. See Southern Bell Tel. c. Co. v. Beaver, 120 Ga. App. 420 (3, 4) ( 170 S.E.2d 737); Werbin Tenenbaum, Inc. v. Heard, 121 Ga. App. 147 (2) ( 173 S.E.2d 114). This the defendant failed to do in whole or in part, and the action of the trial judge is affirmed.

Judgment affirmed. Bell, C. J., and Deen, J., concur.

SUBMITTED JUNE 1, 1971 — DECIDED JULY 13, 1971.