Opinion
71317.
DECIDED OCTOBER 30, 1985.
Action on account. Bryan Superior Court. Before Judge Findley.
Lloyd D. Murray, for appellants.
Charles H. Brown, for appellee.
Plaintiff Sunshine Oil Company, Inc. brought this suit on an account against defendants in the Superior Court of Bryan County. On March 1, 1985, after defendants answered the complaint, plaintiff moved for summary judgment. Its motion was supported by an affidavit which established defendants' indebtedness to plaintiff in the amount of $22,757.04. Defendants did not file opposing affidavits in the case until April 3, 1985. The affidavits were filed on that day in open court when the summary judgment motion was heard. After considering the pleadings and plaintiff's supporting affidavit, the trial court granted plaintiff's motion for summary judgment. In so doing, the trial court expressly stated that it did not consider defendants' opposing affidavits because they were not filed timely. Defendants appeal. Held:
1. Affidavits opposing a summary judgment motion "may be served not later than one day before the hearing, unless the court permits them to be served at some other time." OCGA § 9-11-6 (d). See also OCGA § 9-11-56 (c). "The court is vested with a discretion to consider affidavits not so served, and if he does so there is no requirement that a writing to that effect appear in the record. Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111 (1) ( 281 S.E.2d 583) (1981). Where he does not in his discretion choose to consider those untimely filed no error appears. Dutton v. Dykes, 159 Ga. App. 48 (1) ( 283 S.E.2d 28) (1981); Oliver v. Thomas, 158 Ga. App. 388 ( 280 S.E.2d 416) (1981)." Willingham v. Bridges, 165 Ga. App. 35 (1) ( 299 S.E.2d 392). Accord Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589, 596 (7) ( 307 S.E.2d 107); Talley v. City Tank Corp., 158 Ga. App. 130, 133 (2) ( 279 S.E.2d 264).
2. "A brief cannot be used in lieu of the record or transcript for adding evidence to the record. Lowery v. Horn, 147 Ga. App. 880 ( 251 S.E.2d 840); Finley v. Franklin Aluminum Co., 132 Ga. App. 70, 71 ( 207 S.E.2d 543); Maloy v. Dixon, 127 Ga. App. 151, 154 ( 193 S.E.2d 19). We must take our evidence from the record and not from the brief of either party." Blue v. R. L. Glosson Contracting, 173 Ga. App. 622, 623 (1) ( 327 S.E.2d 582). A review of the record fails to disclose any circumstances which would indicate that the trial court abused its discretion in refusing to consider defendants' opposing affidavits. "We will not substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion. [Cits.]" Cohutta Mills v. Bunch, 166 Ga. App. 395, 397 ( 304 S.E.2d 431).
Judgment affirmed. Banke, C. J., and Benham, J., concur.