Daylight Industries, Inc. v. Allen

123 Ga. App. 69 (1970) 179 S.E.2d 542

DAYLIGHT INDUSTRIES, INC.
v.
ALLEN et al.

45733.

Court of Appeals of Georgia.

Submitted November 2, 1970. Decided December 3, 1970.

Schreiber & Rozier, Joe Schreiber, for appellant.

Harrison & Laseter, John R. Laseter, for appellees.

JORDAN, Presiding Judge.

Daylight Industries, Inc., d/b/a Daylight Grocery Company, sued W. R. Allen, Jr. and J. C. Adams as individuals for the unpaid balance due on an account. The defendants moved to dismiss the action, alleging as ground 3 that the "Obligation, if any, owed to the plaintiff is owed by Adams Wholesale Meats and Provisions, Inc., a Georgia Corporation ... and not owed by defendants individually." After hearing evidence on the motion the trial judge sustained this ground of the motion and dismissed the complaint. The plaintiff appeals from this order. Held:

The motion, as considered by the trial judge after hearing evidence, must be treated as a motion for summary judgment. CPA § 12 (c); Code Ann. § 81A-112 (c); Smith v. Smith, 119 Ga. App. 803, 805 (168 SE2d 878). The evidence discloses a genuine issue of fact as to whether the alleged indebtedness is that of the two individual defendants, or that of another, or more precisely, the corporation which the defendants own. This is a jury question, and the trial judge erred in disposing of the issue by action tantamount to the grant of a summary judgment.

Judgment reversed. Eberhardt and Pannell, JJ., concur.