Berrien v. Avco Financial Services, Inc. , 123 Ga. App. 862 ( 1971 )

Pannell, Judge,

concurring specially. I concur in the result reached in this case; and as to Division 4 of the opinion, I concur in the rulings (a) that it was error to strike the third and fourth defenses, and (b) that the plaintiff was not entitled to summary judgment because it failed to prove that it was licensed to do business under the Act. But I cannot concur in the ruling that those two defenses would not have militated against the grant of summary judgment, and the implications of what is thereafter said which places the burden of proof upon the party opposing the motion for summary judgment. The third and fourth defenses were affirmative defenses, and while the defendant would have the burden of proving them upon the trial, the burden here was upon the plaintiff movant to negative these defenses. 6 Moore’s Federal Practice (2d Ed.), Par. 56.15[3], pp. 2341-2343; Southern Bed Telephone &c. Co. v. Beaver, 120 Ga. App. 420 (2, 3, 4) (170 SE2d 737); Werbin & Tenenbaum, Inc. v. Heard, 121 Ga. App. 147 (2, 3) (173 SE2d 114).