A statute which confers upon a judge discretion to decide questions of procedure in cases tried before him imposes a correlative duty that to exercise such discretion which the occasion arises.
H. Rex Frye and Sumner Waitz, d/b/a Waitz and Frye, sued L. M. Harrington in the City Court of Brunswick on a promissory note. The answer alleged the consideration of the note had failed and denied liability on the same. The plaintiffs, thereafter, moved for a summary judgment in their favor on the ground that there was not a genuine issue of fact in the case. In support of the motion they submitted affidavits made by each of the plaintiffs showing that: the defendant's original indebtedness to the plaintiffs was for engineering and surveying services; the plaintiffs had previously instituted the foreclosure of a laborer's lien in a Florida court for the purpose of enforcing the above mentioned indebtedness; the consideration of the note sued upon was the settlement and dismissal of the laborer's lien proceedings. The record of the previous case was introduced into evidence along with the affidavits. On the day set for the hearing the defendant for the first time served his affidavit in opposition to the motion upon plaintiff's counsel and filed it with the clerk. The defendant's affidavit stated that the consideration for the note failed.
"This motion appears to be good, and the court has not, for that reason, considered said affidavit. This leaves only the defendant's pleadings to be considered but the law with respect to these appears to be: 'When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this section, must set forth specific acts showing that there is a genuine issue for trial. If he does not show response, summary judgment, if appropriate, shall be entered against him.' Code See. 81A-156 (e)."
Code Ann. 110-1203 (Ga. L. 1959, p. 234) provides that affidavits opposing a motion for summary judgment may be served prior to the day of the hearing. However, in Simmons v. State Farm &c. Ins. Co., 111 Ga. App. 738 (1) (143 SE2d 55)
this court held that under the provisions of Code Ann. 110-1207 (Ga. L. 1959, pp. 234, 236) it was discretionary with the trial judge whether to strike opposing affidavits even though they were not served prior to the hearing date as required by Code Ann. 110-1203.
In the instant case the judge erred in assuming he was not vested with discretion to decide whether he should consider the defendant's affidavit submitted in opposition to the motion for summary judgment. He decided to exclude the affidavit and sustain the motion on the erroneous premise that these issues were to be passed upon under former Code Ann. 110-1203 and the Georgia Civil Practice Act, especially according to the provisions of the portion of the Act embodied in Code Ann. 81A-156 (c), (e). The judgment sustaining the motion was entered on July 28, 1967, and the Georgia Civil Practice Act, including Section 81A-156, did not become the law of the State until the effective date of the statute which was September 1, 1967.
The judgment placed emphasis upon the statutory requirement that the defendant's affidavit in opposition to the motion for summary judgment be served within the time prescribed by Code Ann. 110-1203, then a part of the law relative to summary judgment proceedings, but did not mention Code Ann. 110-1207 that vested in the judge discretion to admit and consider the defendant's affidavit, even though no motion was made to permit it to be served until the time of service had expired. In short the judge construed the provisions of Section 110-1203 (and Section 81A-156 not then of force as a statute of the State) as an inflexible mandate that the defendant's affidavit be served within one day before the hearing of the motion, and did not consider the discretion vested in him under Code Ann. 110-1207 as construed in Simmons v. State Farm &c. Ins. Co., 111 Ga. App. 738