Georgia Court of Appeals, 1979

Hendryx v. Hendryx

Georgia Court of Appeals · Decided April 19, 1979 · Shulman

149 Ga. App. 672; 257 S.E.2d 47; 1979 Ga. App. LEXIS 1977

Opinion of the Court

Shulman, Judge.

In this appeal from an action to domesticate a judgment, both parties concede that the trial court erred in granting the summary judgment without considering a deposition on file. The point is well taken. As the trial court could not have determined that no genuine issue of material fact existed, the summary judgment could not *673have been properly entered in favor of either party. Realty Contractors, Inc. v. C & S Nat. Bank, 146 Ga. App. 69 (245 SE2d 342); Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612 (3) (247 SE2d 197). See also, Mathis v. R. H. Smallings & Sons, 125 Ga. App. 810 (189 SE2d 122), holding that inconsistencies in the testimony of the same party may preclude summary judgment.

Argued February 13, 1979 — Decided April 19,1979. Clein & Heimanson, Neil L. Heimanson, for appellant. Bates, Baum & Landey, Benjamin Landey, for appellee.

Judgment reversed and remanded.

Deen, C. J., and McMurray, P. J., concur.

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