Hendryx v. Hendryx

Shulman, Judge. In this appeal from an action to domesticate a judgment, both parties concede that the trial court erred in granting the summary judgment without considering a deposition on file. The point is well taken. As the trial court could not have determined that no genuine issue of material fact existed, the summary judgment could not [673] have been properly entered in favor of either party. Realty Contractors, Inc. v. C & S Nat. Bank, 146 Ga. App. 69 (245 SE2d 342); Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612 (3) (247 SE2d 197). See also, Mathis v. R. H. Smallings & Sons, 125 Ga. App. 810 (189 SE2d 122), holding that inconsistencies in the testimony of the same party may preclude summary judgment. Argued February 13, 1979 — Decided April 19,1979. Clein & Heimanson, Neil L. Heimanson, for appellant. Bates, Baum & Landey, Benjamin Landey, for appellee. Judgment reversed and remanded. Deen, C. J., and McMurray, P. J., concur.