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Smith v. Allen

Court of Appeals of Georgia
Jan 6, 1967
153 S.E.2d 728 (Ga. Ct. App. 1967)

Summary

In Smith v. Allen, 115 Ga. App. 80, 81 (153 S.E.2d 648), this court held: "As plaintiff has failed to enumerate any error on the trial court's omission to make an order, pursuant to Code Ann. § 110-1204, specifying whether certain facts appear without substantial controversy, we can determine only whether the court erred in denying the motion as to the whole case."

Summary of this case from Borden, Inc. v. Barker

Opinion

42294.

SUBMITTED SEPTEMBER 7, 1966.

DECIDED JANUARY 6, 1967. REHEARING DENIED JANUARY 24, 1967.

Dispossessory proceeding. Wayne Superior Court. Before Judge Flexer.

Zorn Royal, William A. Zorn, for appellant.

Albert E. Butler, for appellee.


H. G. Smith sought to dispossess Blanche Allen, as a tenant at sufferance, under Code § 61-301. After defendant had filed a counter affidavit and given bond and the sheriff had returned the proceedings to the superior court, plaintiff moved for summary judgment. Plaintiff enumerates error on the trial court's denial of his motion for summary judgment. As plaintiff has failed to enumerate any error on the trial court's omission to make an order, pursuant to Code Ann. § 110-1204, specifying whether certain facts appear without substantial controversy, we can determine only whether the court erred in denying the motion as to the whole case. Thus it is unnecessary for us to decide whether the admissible facts set forth in the supporting and opposing affidavits showed that plaintiff was entitled to a writ of possession and a judgment in some amount under Code Ann. § 61-305. Plaintiff's affidavit, in which he stated that in his opinion the reasonable monthly value of the property was $500, though this statement was not disputed, was not effective to eliminate from the case the issue as to the worth of the rent of the premises. The question of the value of property is peculiarly one for the jury, and the plaintiff's opinion as to its value was not binding upon the court. See Hoard v. Wiley, 113 Ga. App. 328, 334 ( 147 S.E.2d 782) and citations. As this genuine issue of material fact remained in the case, the court did not err in denying the motion for summary judgment.

Judgment affirmed. Jordan and Eberhardt, JJ., concur.

SUBMITTED SEPTEMBER 7, 1966 — DECIDED JANUARY 6, 1967 — REHEARING DENIED JANUARY 24, 1967.


Summaries of

Smith v. Allen

Court of Appeals of Georgia
Jan 6, 1967
153 S.E.2d 728 (Ga. Ct. App. 1967)

In Smith v. Allen, 115 Ga. App. 80, 81 (153 S.E.2d 648), this court held: "As plaintiff has failed to enumerate any error on the trial court's omission to make an order, pursuant to Code Ann. § 110-1204, specifying whether certain facts appear without substantial controversy, we can determine only whether the court erred in denying the motion as to the whole case."

Summary of this case from Borden, Inc. v. Barker
Case details for

Smith v. Allen

Case Details

Full title:SMITH v. ALLEN

Court:Court of Appeals of Georgia

Date published: Jan 6, 1967

Citations

153 S.E.2d 728 (Ga. Ct. App. 1967)
153 S.E.2d 728

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