ADAMS-CATES COMPANY v. Marler , 135 Ga. App. 298 ( 1975 )

135 Ga. App. 298 (1975) 217 S.E.2d 398

ADAMS-CATES COMPANY et al.
v.
MARLER et al.

50714.

Court of Appeals of Georgia.

Argued June 2, 1975. Decided June 11, 1975. Rehearing Denied July 2, 1975.

King & Spalding, Jack H. Watson, Jr., Michael C. Russ, for appellants.

Lokey & Bowden, Hamilton Lokey, Charles M. Lokey, for appellees.

WEBB, Judge.

This is an appeal from an order denying partial summary judgment to plaintiffs-appellants with respect to a portion of the relief sought by defendants in their "Third Defense and Counterclaim." The trial court ruled: "After considering the matter the court concludes that there are genuine issues as to material facts on the matters involved in this motion and accordingly, the plaintiffs' motion for partial summary judgment is overruled and denied. There is no enumerated error upon the court's conclusion that genuine issues as to material facts remain for determination.

"We cannot escape the holding of the trial judge that material issues of fact remain to be determined, and since there is no enumerated error contesting this legal conclusion contained in the judgment, the denial of appellant's motion for summary judgment must be affirmed." Weaver v. Whaley, 233 Ga. 635, 636 (212 SE2d 812). We are bound by this ruling and have no alternative but to apply it here.

Judgment affirmed. Bell, C. J., and Marshall, J., concur.