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Lawskills.com Georgia Caselaw
JONES v. KIM.
76706.
BENHAM, Judge.
Action on note. Muscogee Superior Court. Before Judge Whisnant.
Appellee Kim sued appellant Jones on a promissory note and was granted judgment on the pleadings. Appellant contends it was error to grant judgment in favor of appellee and to deny appellant's motion for summary judgment.
1. Appellee's motion to dismiss the appeal is denied. See OCGA 5-6-48.
2. A plaintiff is not entitled to judgment on the pleadings where the answer raises issues of fact which, if proved, would defeat recovery. Kramer v. Johnson, 121 Ga. App. 848 (2) (176 SE2d 108) (1970). " ' "For the purposes of the motion, all well-pleaded material allegations of the opposing party's pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false." ' " Christner v. Eason, 146 Ga. App. 139, 140 (245 SE2d 489) (1978). Appellant's general denial of the allegations contained in appellee's complaint was sufficient to raise the defense of denial of the execution of the note, which, in turn, meant that appellant did not admit the signature within the meaning of OCGA 11-3-307. Spurlock v. Commercial Banking Co., 151 Ga. App. 649 (3b) (260 SE2d 912) (1979). Thus, the introduction of the promissory note did not establish, as a matter of law, appellee's right to the judgment sought. Compare Brooks v. McCorkle, 174 Ga. App. 132 (329 SE2d 214) (1985).
3. It does not follow that the erroneous grant of judgment on the pleadings to appellee should result in the grant of summary judgment to appellant. Appellant's answer itself raised the material issue of execution of the promissory note (see Division 2), and appellant's assertion of usury does not constitute a complete defense to appellee's allegations.
Jerry D. Sanders, for appellee.
Charles C. Carter, for appellant.
DECIDED OCTOBER 24, 1988.
Thursday May 21 12:34 EDT


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