Stratton & McLendon, Inc. v. CAMERON-BROWN COMPANY

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140 Ga. App. 430 (1976)

231 S.E.2d 447



Court of Appeals of Georgia.

Submitted November 1, 1976.

Decided November 12, 1976.

Calhoun A. Long, for appellants.

Arnall, Golden & Gregory, James B. Mowry, Jr., for appellee.

CLARK, Judge.

Plaintiff sued the maker and two endorsers to recover on three promissory notes. Defendants in their joint answer set up the affirmative defenses of substitution of debtors and novation. Thereafter plaintiff moved for summary judgment which the trial court granted. Defendants have taken this appeal from that judgment.

*431 Neither plaintiff's motion nor supporting affidavits addressed defendants' affirmative defenses. Defendants filed an affidavit in opposition to the motion.

On a motion for summary judgment the burden is on the movant to establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Code Ann. § 81A-156 (c). The plaintiff has failed to carry its burden by not piercing nor even addressing the affirmative defenses raised by defendants. See Smith v. First Am. Bank &c. Co., 139 Ga. App. 292; C. K. Security Systems, Inc. v. Hartford Acc. &c. Co., 137 Ga. App. 159 (223 SE2d 453); Barker v. Gold Kist, Inc., 135 Ga. App. 224 (217 SE2d 195); Commercial Credit Plan, Inc. v. Mills, 134 Ga. App. 908 (216 SE2d 628); Price v. B-Line Systems, Inc., 129 Ga. App. 34 (3) (198 SE2d 328).

Our ruling is that plaintiff has not met its procedural burden under Code Ann. § 81A-156 and "does not necessarily mean that defendants are entitled to finally prevail [cit.], nor does it necessarily fix the law of the case. [Cits.]" Roberson v. Evergreen & Associates, Inc., 134 Ga. App. 881 (216 SE2d 693). We intimate no opinion as to the relative merits or lack thereof of the claims or defenses raised by the parties to this action.

Judgment reversed. Bell, C. J., and Stolz, J., concur.