Stephens County v. Gaines , 128 Ga. App. 661 ( 1973 )

128 Ga. App. 661 (1973) 197 S.E.2d 424

STEPHENS COUNTY
v.
GAINES et al.

47736.

Court of Appeals of Georgia.

Submitted January 11, 1973. Decided April 2, 1973.

Martin W. Welch, for appellant.

Linton K. Crawford, for appellee.

PANNELL, Judge.

1. When the defendants have made a motion for a summary judgment under the provisions of the Civil Practice Act (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; Code Ann. § 81A-156), which motion is supported by affidavits, depositions, or other evidentiary matter showing a prima facie right on the part of the defendants to have a summary judgment rendered in their favor, the duty is cast upon the plaintiff to produce rebuttal evidence at the hearing thereof, by the introduction of depositions or affidavits, sufficient to show to the court that there is a genuine issue of fact to be decided by the jury. Scales v. Peevy, 103 Ga. App. 42, 47 (118 SE2d 193); Cochran v. Southern Business University, 110 Ga. App. 666 (139 SE2d 400); Bussie v. Wilson, 114 Ga. App. 298 (151 SE2d 186).

2. In the instant case, defendants established that a contract had been made with the county board of tax assessors for attorney's services on specified cases, that the contract was performed and that no conspiracy or fraud existed. Allen v. Brooke, 25 Ga. App. 122 (102 S.E. 832); Robinson v. Guerry, 40 Ga. App. 26 (148 S.E. 745). In rebuttal, the plaintiff presented no evidence concerning fraud or conspiracy and the affirmative evidence offered concerned separate and distinct contracts for the position of county attorney and a dismissal notice effective after the attorney's services had been performed. Such evidence is not sufficient to show a genuine issue of fact as to these controlling issues in the case and the trial court did not err in granting the defendant's motion for summary judgment.

Judgment affirmed. Eberhardt, P. J. and Stolz, J., concur.