Phillips v. South Cobb Bank

117 Ga. App. 137 (1968)

159 S.E.2d 495

PHILLIPS v. SOUTH COBB BANK.

43366.

Court of Appeals of Georgia.

Submitted January 12, 1968.

Decided January 26, 1968.

L. S. Cobb, Doyle C. Brown, George E. Bridwell, for appellant.

Holcomb & McDuff, Frank D. Holcomb, Edwards, Bentley, Awtrey & Parker, Scott S. Edwards, Jr., Donald Dennis, for appellee.

HALL, Judge.

The plaintiff bank brought an action in bail trover against the defendant in the Civil and Criminal Court of Cobb County. The defendant filed an answer. The plaintiff filed a motion for summary judgment and submitted the deposition of the defendant and several affidavits in support thereof. No counter affidavits were submitted by the defendant. The defendant appeals from the judgment granting the motion for summary judgment.

1. "The Civil and Criminal Court of Cobb County is a court of record. . ." Motor Contract Co. v. Wigington, 116 Ga. App. 398, 399 (157 SE2d 321).

2. The defendant contends that the grant of the summary judgment is error for the reason that the supporting affidavits were not entitled in the cause and do not on their face identify the case in which they were to be used. See Hill v. McBurney Oil &c. Co., 112 Ga. 788 (2) (38 SE 42, 52 LRA 398); Falls City Mfg. Co. v. Athens Coca-Cola Bottling Co., 130 Ga. 559 (61 SE 230); 3 AmJur2d 391, § 13. However, the record discloses that no such objection was made in the court below. *138 In order for this court to consider this objection, "it should have been raised in the trial court prior to the ruling on the motion for summary judgment." Planters Rural Telephone Co-op. v. Chance, 108 Ga. App. 146 (132 SE2d 90); 6 Moore's Federal Practice 2817, § 56.22; 3 Barron & Holtzoff, Federal Practice and Procedure, 171-172, § 1237.

3. Defendant further contends that the grant was error for the reason that the plaintiff made no election as to the verdict, as provided by Code § 107-105, and no evidence was introduced to prove the fair market value of the property. In a trover action, "The plaintiff has a right to elect a verdict at any time before the case is submitted to a jury or before judgment is rendered by a judge without a jury." Zachos v. Rowland, 80 Ga. App. 31, 35 (55 SE2d 166). Where the plaintiff makes no such election, the judgment in trover is that he shall have the property sued for. Burch v. Pedigo & Lyons, 113 Ga. 1157, 1160 (39 SE 493, 54 LRA 808).

The trial court did not err in granting the plaintiff's motion for summary judgment.

Judgment affirmed. Bell, P. J., and Quillian, J., concur.