Gross v. PYROFAX GAS CORPORATION , 151 Ga. App. 130 ( 1979 )

151 Ga. App. 130 (1979) 259 S.E.2d 137

GROSS
v.
PYROFAX GAS CORPORATION.

57968.

Court of Appeals of Georgia.

Submitted June 13, 1979. Decided September 4, 1979.

William Rhymer, for appellant.

Sheldon R. Whittner, Robert B. Lipman, for appellee.

BANKE, Judge.

This is an appeal by the defendant from a summary judgment in favor of the plaintiff in a suit on account. The defendant did not file his affidavit opposing the motion for summary judgment until the date of the hearing; however, he served the affidavit on counsel for plaintiff by mail two days prior to the hearing. The affidavit apparently was not considered by the trial judge, as it does create a genuine issue of material fact. Held:

The party opposing a motion for summary judgment has until the day prior to the hearing to serve opposing affidavits, unless the trial court in its discretion permits them to be served at a later date. Code Ann. §§ 81A-106 (d) and 81A-156 (c). "Service by mail is complete upon mailing." Code Ann. § 81A-105 (b). Accordingly, the defendant's affidavit was timely served. Under this court's decision in Liberty Forest Prod., Inc. v. Interstate Paper Corp., 138 Ga. App. 153 (225 SE2d 731) (1976), a response to a motion for summary judgment is timely filed if filed on the date of the hearing, notwithstanding the language in Code Ann. § 81A-105 (d) requiring all papers after the complaint to be filed within the time allowed for service. Therefore, the defendant's affidavit should have been considered, and the grant of summary judgment to the plaintiff was in error.

Judgment reversed. McMurray, P. J., and Underwood, J., concur.