Summary
In Ga. Hwy. Exp. v. W. D. Alexander Co., 124 Ga. App. 143, supra, the affidavit in question was that of a vice-president, the jurat not stating it was made on personal knowledge and the contents did not disclose same was made on personal knowledge although affiant did state therein personal knowledge of the indebtedness but not as to other facts contained in the affidavit.
Summary of this case from Jobson v. DooleyOpinion
46202.
ARGUED MAY 7, 1971.
DECIDED JUNE 25, 1971.
Complaint. Fulton Civil Court. Before Judge Webb.
Hansell, Post, Brandon Dorsey, Terrence Lee Croft, for appellant.
Stanley K. Slutzky, for appellee.
This is an appeal from the grant of a summary judgment for the plaintiff. The affidavit in support of plaintiff's motion was signed by a vice-president of the plaintiff company. The parties stipulate that an objection was made in the trial court as to the form of the affidavit — it failed to state that the affiant had personal knowledge of the material facts recited therein.
"Affidavits must be made on personal knowledge. Code Ann. § 81A-156 (e). "This does not mean that the affidavit must contain a statement in those words. "A statement in the jurat to the effect that the affidavit is made upon personal knowledge is generally sufficient" to comply with the Act. . . but the requirement of personal knowledge may be met by other material in evidence, at least when no objection to the form of the affidavit was made in the trial court. Holland v. Sanfax Corp., 106 Ga. App. 1, 5 ( 126 S.E.2d 442); Lawson v. American Motorists Ins. Corp., 217 F.2d 724, 726 (5th Cir. 1954); Chambers v. United States, 357 F.2d 224, 228 (8th Cir. 1966).' Nevels v. Detroiter Mobile Homes, Inc., 120 Ga. App. 60, 62 ( 169 S.E.2d 716), cert, den. 120 Ga. App. 886; Central Chevrolet, Inc. v. Lawhorn, 120 Ga. App. 650 (2) ( 171 S.E.2d 774)." Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 264 ( 174 S.E.2d 178). This is based upon the theory that "technicalities have no place in the summary judgment procedure" and that objections to "formal defects" should be made in the trial court or else they are waived. See 3 Wright's Barron Holtzoff, Federal Practice Procedure 170, § 1237.
In view of the fact that the defendant made an objection in the trial court on the ground that the affidavit did not state that it was made on personal knowledge, the trial court erred in the grant of a summary judgment for the plaintiff.
Judgment reversed. Eberhardt and Whitman, JJ., concur.