Johnson v. Collins

Eberhardt, Judge.

D. M. Johnson sought a temporary restraining order to stop the exercise of a power of sale in a security deed held by Edwin L. Collins.¹ He alleged that he had purchased the property described in the deed from J. W. Hill, and that Hill had executed the security deed in question to Collins to secure a loan, and that Hill had informed him that Collins had accepted late payments on the indebtedness. It is also alleged that although Hill secured only $1,000 from Collins, he executed to him a note for a sum in excess of that amount and that Collins now claims a balance due of $1,584.50, the correctness of which is disputed, and an accounting is demanded so that an accurate statement of the indebtedness may be established.

Hill was also made a party defendant, and he cross claimed against Collins, contending that Collins had required him to execute a note for $1,335, and Collins had given his check for that amount, but had required a "kick-back” of $335 so that he received only $1,000 from the loan. Hill’s answer and cross claim were disallowed because of late filing, and his appeal from that order is being dismissed because the enumeration of errors was not filed within the time required by law.

Collins moved to dissolve the temporary injunction, and moved for summary judgment, submitting his affidavit that he had in truth and in fact loaned Hill $1,335, attached his canceled check for that amount which Hill had endorsed, along with a loan closing statement; that there were two prior security deeds outstanding against the property, one held by Fickling & Walker on which there were monthly payments of $105, and another held by the National Bank of Georgia on which there were monthly payments of $54.50, and that his arrangement with Hill and with Collins had been that with each payment on the indebtedness to him there be included also amounts sufficient to cover the monthly payments to Fickling & Walker and to the National Bank of Georgia. Collins had made three payments. A check for a fourth payment, including payments to be sent to the others, was returned for insufficient funds. Collins had, on receipt of the check, sent his own checks to Fickling & Walker and to the National Bank of Georgia, and these had been paid. The canceled checks were attached. Crediting Johnson with the three payments made ($30 per month), less the interest accrued, and charging him with the payments made to the others, the true balance due was $1,584.50.

Johnson offered no proof whatever at the hearing on the motion for summary judgment, and summary judgment was granted. Johnson appeals and Hill cross appeals. Held:

1. The evidence tendered by Collins was sufficient to pierce the pleadings of Johnson’s petition, and shifted the burden to him to come forward with proof to disclose the existence of a material issue of fact. Having failed to do so, the entry of summary judgment in favor of- Collins was proper. Crutcher v. Crawford Land Co., 220 Ga. 298, 302 (138 SE2d 580).

2. The answer and cross claim tendered by defendant Hill came after the time for filing these had elapsed, and Hill was in default. Whether there was any error in awarding summary judgment to Collins against Hill on that ground or whether there was error in disallowing the answer and cross claim need not be decided, for appellant Hill in his cross appeal has failed to file his enumerations of error within the time provided by the rules of this court and the cross appeal is dismissed. Orr v. Smith, 226 Ga. 592 (176 SE2d 92); Smith v. Smith, 119 Ga. App. 803 (2) (168 SE2d 878).

Judgment affirmed on the main appeal; cross appeal dismissed.

Hall, P. J., and Deen, J., concur. Whitman, J., not participating. Submitted September 17, 1971 Decided November 8, 1971. Johnson & Johnson, S. D. Johnson, for Johnson. A. E. Wallace, Jr., for Hill. J. Norwood Jones, Jr., B. J. Roberts, for Collins.

1 He did not pray for a permanent injunction. See Gentry v. Consolidated Credit Corp., 227 Ga. 459 (181 SE2d 388); Jones v. Van Vleck, 224 Ga. 796 (164 SE2d 724).