McLean v. Oakmont Hosiery Mills

Pannell, Judge.

Oakmont Hosiery Mills brought an action on account against Mrs. Attie Phillips McLean as executrix of the estate of John C. McLean, deceased. Defendant made a motion for summary judgment based upon certain allegations of fact, on none of which proof was offered on motion for summary judgment. The plaintiff introduced affidavits showing the correctness of the account (disregarding those portions of the affidavits relating to transactions with the deceased had by the opposing party). The trial judge overruled the defendant’s motion for summary judgment and the defendant, with proper certificate, appealed to this court. Held:

On motion for summary judgment, the defendant must disprove some essential element of the plaintiff’s case. See Southern Bell Tel. &c. Co. v. Beaver, 120 Ga. App. 420 (3, 4) (170 SE2d 737); Werbin & Tenenbaum, Inc. v. Heard, 121 Ga. App. 147 (2) (173 SE2d 114). This the defendant failed to do in whole or in part, and the action of the trial judge is affirmed.

Submitted June 1, 1971 Decided July 13, 1971. Odom & Dendy, F. H. Dendy, for appellant. Spivey & Carlton, Milton A. Carlton, for appellee.

Judgment affirmed.

Bell, C. J., and Deen, J., concur.