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COBB EXCHANGE BANK v. WORD (two cases).
46542.
46543.
DEEN, Judge.
Action on notes. DeKalb State Court. Before Judge Mitchell.
Plaintiff appellant brought a complaint against defendant appellee and another, to recover sums due on notes executed in favor of plaintiff. The trial court sustained the motion to dismiss as to appellee and plaintiff brings this appeal. Held:
1. "A motion to dismiss a complaint will not lie unless it appears as a matter of law, beyond doubt, that the plaintiff cannot, by competent evidence, demonstrate that he is entitled to relief thereunder." Bullock County Hospital Authority v. Fowler, 124 Ga. App. 242 (1b) (183 SE2d 586); Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260). Appellant's complaint properly sets forth a claim upon which relief may be granted.
2. Assuming the trial court treated and considered the motion to dismiss as a motion for summary judgment, there were no supporting affidavits, depositions, admissions, or other required extra pleading matters presented. Brackett v. H. R. Block & Co., 119 Ga. App. 144 (1) (166 SE2d 369); Travelers Ins. Co. v. Johnson, 118 Ga. App. 616 (3) (164 SE2d 926); Davis v. American Acceptance Corp., 119 Ga. App. 265 (167 SE2d 222), the latter case involving the allowance to the opposing party of additional time to present evidence. It was error to dismiss appellant's complaint in both cases.
J. M. Grubbs, Jr., Adele Platt, for appellant.
SUBMITTED SEPTEMBER 9, 1971 -- DECIDED OCTOBER 1, 1971.
Friday May 22 15:40 EDT


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