Rushing v. Ellis

Evans, Judge,

concurring specially. I concur in the judgment of reversal and generally with the majority as to the ruling in Headnote 2 and Division 2 of the opinion. It is my opinion that this court is bound by the rulings pronounced by the Supreme Court in Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393) and Harrison v. Tuggle, 225 Ga. 211 (167 SE2d 395) and rulings by this court in Truluck v. Funderburk, 119 Ga. App. 734 (168 SE2d 657) and Williams v. Melton, 120 Ga. App. 466 (171 SE2d 318) rather than that of Anderson v. Crippen, 122 Ga. App. 27 (176 SE2d 196). See my dissent in the Anderson v. Crippen case. While the majority may be perfectly correct in its ruling in Headnote 1, Division 1, with reference to § 15, CPA (Code Ann. § 81A-115 (a) as amended), supra, to the effect that a party may amend his pleadings as a matter of course at any time before entry of the pre-trial order, nevertheless, in the cases of Studstill v. Aetna Cas. & Surety Co., 101 Ga. App. 766 (2) (115 SE2d 374) and Scales v. Peevy, 103 Ga. App. 42 (2) (118 SE2d 193) this court has implied that a judgment shall be rendered forthwith on a motion for summary judgment and the time for the opposite party to present his relevant evidence, "pleadings, depositions, answers to interrogatories,” etc., shall be at the time of the hearing. I feel it is not necessary here to make a ruling as made by the majority in Headnote 1, Division 1 to reach a decision here and, hence, I prefer to leave this question for decision at some future date. I, therefore, specially concur in the judgment of reversal for the reasons stated above.