Opinion
43185.
ARGUED NOVEMBER 9, 1967.
DECIDED DECEMBER 1, 1967.
Action on note. Brunswick City Court. Before Judge Little.
Cowart, Sapp, Alaimo Gale, Anthony A. Alaimo, James A. Bishop, for appellant.
Adams Henry, Q. Robert Henry, for appellees.
A statute which confers upon a judge discretion to decide questions of procedure in cases tried before him imposes a correlative duty that he exercise such discretion when the occasion arises.
ARGUED NOVEMBER 9, 1967 — DECIDED DECEMBER 1, 1967.
H. Rex Frye and Sumner Waitz, d/b/a Waitz and Frye, sued L. M. Harrington in the City Court of Brunswick on a promissory note. The answer alleged the consideration of the note had failed and denied liability on the same. The plaintiffs, thereafter, moved for a summary judgment in their favor on the ground that there was not a genuine issue of fact in the case. In support of the motion they submitted affidavits made by each of the plaintiffs showing that: the defendant's original indebtedness to the plaintiffs was for engineering and surveying services; the plaintiffs had previously instituted the foreclosure of a laborer's lien in a Florida court for the purpose of enforcing the above mentioned indebtedness; the consideration of the note sued upon was the settlement and dismissal of the laborer's lien proceedings. The record of the previous case was introduced into evidence along with the affidavits. On the day set for the hearing the defendant for the first time served his affidavit in opposition to the motion upon plaintiff's counsel and filed it with the clerk. The defendant's affidavit stated that the consideration for the note failed.
Upon the hearing, the plaintiff moved that the defendant's affidavit be excluded and that the judge not consider the affidavit in passing upon the motion for summary judgment. The judgment granting the motion recites: "On the same day upon which this motion was heard, and not more than thirty minutes prior thereto, the defendant served plaintiff's counsel with a copy of an affidavit made by the defendant, L. M. Harrington, and also handed a copy of the same to the court. Motion was made by plaintiff's counsel, however, to exclude the same on the ground that the court could not consider it, as it was not served `prior to the date of the hearing', as required by Section 81A-156 (c) of the Code. (Code § 110-1203).
"This motion appears to be good, and the court has not, for that reason, considered said affidavit. This leaves only the defendant's pleadings to be considered but the law with respect to these appears to be: `When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this section, must set forth specific acts showing that there is a genuine issue for trial. If he does not show response, summary judgment, if appropriate, shall be entered against him.' Code Sec. 81A-156 (e)."
Code Ann. § 110-1203 (Ga. L. 1959, p. 234) provides that affidavits opposing a motion for summary judgment may be served prior to the day of the hearing. However, in Simmons v. State Farm c. Ins. Co., 111 Ga. App. 738 (1) ( 143 S.E.2d 55) this court held that under the provisions of Code Ann. § 110-1207 (Ga. L. 1959, pp. 234, 236) it was discretionary with the trial judge whether to strike opposing affidavits even though they were not served prior to the hearing date as required by Code Ann. § 110-1203.
A statute which confers upon a judge discretion to decide questions of procedure in cases tried before him imposes a correlative duty that he exercise such discretion when the occasion arises. Loomis v. State, 78 Ga. App. 153, 164 ( 51 S.E.2d 13); Lowance v. Dempsey, 99 Ga. App. 592 ( 109 S.E.2d 318); Marion County v. McCorkle, 187 Ga. 312, 313 (2) ( 200 S.E. 285). A very clear pronouncement of the principle appears in Stribbling v. Ga. R. Power Co., 139 Ga. 676 (3) ( 78 S.E. 42): "The presiding judge, in refusing to grant the injunction prayed, having stated in his order that he had concluded that he had `no discretion in the premises,' and having based his ruling on an erroneous view of the law which he apparently thought concluded him, and not upon a full consideration of the application for injunction on the issues of law and fact, his judgment is reversed, with direction to rehear the application and pass upon it on its merits."
In the instant case the judge erred in assuming he was not vested with discretion to decide whether he should consider the defendant's affidavit submitted in opposition to the motion for summary judgment. He decided to exclude the affidavit and sustain the motion on the erroneous premise that these issues were to be passed upon under former Code Ann. § 110-1203 and the Georgia Civil Practice Act, especially according to the provisions of the portion of the Act embodied in Code Ann. § 81A-156 (c), (e). The judgment sustaining the motion was entered on July 28, 1967, and the Georgia Civil Practice Act, including Section 81A-156, did not become the law of the State until the effective date of the statute which was September 1, 1967.
The judgment placed emphasis upon the statutory requirement that the defendant's affidavit in opposition to the motion for summary judgment be served within the time prescribed by Code Ann. § 110-1203, then a part of the law relative to summary judgment proceedings, but did not mention Code Ann. § 110-1207 that vested in the judge discretion to admit and consider the defendant's affidavit, even though no motion was made to permit it to be served until the time of service had expired. In short the judge construed the provisions of Section 110-1203 (and Section 81A-156 not then of force as a statute of the State) as an inflexible mandate that the defendant's affidavit be served within one day before the hearing of the motion, and did not consider the discretion vested in him under Code Ann. § 110-1207 as construed in Simmons v. State Farm c. Ins. Co., 111 Ga. App. 738, supra.
Judgment reversed. Jordan, P. J., and Deen, J., concur.