Opinion
49601.
SUBMITTED SEPTEMBER 3, 1974.
DECIDED SEPTEMBER 19, 1974.
Action on account. Appling Superior Court. Before Judge Flexer.
Jones, Rountree Solomon, George M. Rountree, for appellant.
Miles McCoy, Peyton Miles, for appellee.
1. By supplemental record forwarding the order of the trial court it affirmatively appears that the court exercised, and did not abuse, its discretion in allowing an affidavit in opposition to the motion for summary judgment to be filed and served on the day of the hearing. Consequently no error appears. Malone v. Ottinger, 118 Ga. App. 778, 782 ( 165 S.E.2d 660); Supreme Oil Co. v. Brock, 129 Ga. App. 863 (1) ( 201 S.E.2d 659) and cits.; Johnson v. Frazier, 121 Ga. App. 212 (1) ( 173 S.E.2d 434).
2. While the instant case is similar to Farmers Mut. Exchange v. Sisk, 131 Ga. App. 206 ( 205 S.E.2d 438), where the facts were not in dispute, the affidavit offered here in opposition to the motion prevents our holding that movant has carried its burden of demonstrating that there is no genuine issue as to any material fact and that movant is entitled to judgment as a matter of law.
Judgment affirmed. Pannell, P. J., and Evans, J., concur.