dissenting.
1. Following a hearing on appellees’ motion for summary judgment, appellees filed a brief in support of their motion for summary judgment suggesting that at the hearing appellant had made certain admissions against interest. This brief of appellees quotes the language upon which they rely and that language is included in the partial transcript of the hearing included in the record.
It should be noted that although the court reporter has seen fit to label the partial transcript as a “portion of argument and testimony” there is no indication or suggestion that appellant was sworn so as to be presenting oral evidence. A reading of the several pages of the partial transcript reveals simply the argument of the pro se litigant.
I can find no other summary judgment case holding that the absence of a transcript of the argument of the litigants precludes appellate review. Here, the appellant prudently included a transcript of that portion of his argument which had been suggested by appellees to contain admissions against interest. This inclusion should not weigh against appellant.
Nor should the trial court’s reference to consideration of appellant’s “statements” serve as a basis for speculation by the majority *396that perhaps appellant’s argument was followed or preceded by testimony. Neither party suggests that any oral testimony was considered by the trial court. While the majority assumes that “statements” is synonymous with “oral testimony,” is it not equally probable that “statements” refers merely to “arguments?”
In regard to the failure of the record to include a copy of the pleadings in Civil Action No. 85-V-1775G, I note that appellant in his notice of appeal requested that the entire record in the trial court be filed for inclusion in the record on appeal. This court should attempt to remedy the failure to comply with appellant’s proper designation of record. “[T]he obligation for the preparation of the record rests with the clerk. After the appellant has filed a notice of appeal, his duty as to the record is limited to the payment of costs.” Long v. City of Midway, 251 Ga. 364 (306 SE2d 639).
As I cannot agree with the reasoning of the majority and would reverse on the merits, I respectfully dissent.
2. Defendants rely upon the defense of truth. See in this regard OCGA § 51-5-6.
At the summary judgment hearing plaintiff (appellant) stated: “Your Honor, I want to first get that last argument because it just simply irks me. That interrogatory was seeking discovery of a prior incident. I don’t see how we can have the opportunity to even suggest that I’m stating for October 17, 1982, that I was falsely booked for trespassing ... I think my recollection was that I was booked for or charged with trespassing and my recollection is that that charge was later dropped. Now, I have not said I’ve been falsely charged with trespassing on October 17, 1982, and I cannot recollect the date of this prior incident that I have a recollection, but I know it happened. I can’t prove it, Your Honor, but I do know it happened, and I did submit just like several instances between myself and the police and everybody denies that they happened . . . There’s actually no record that I’ve ever been falsely booked and I was just trying to inquire if there were any records that I’ve been falsely booked, because to my knowledge there was never a charge or conviction of any trespassing. I have in my hand here an arrest booklet from October 17, 1982. It’s my copy that I received on October 13 or 14, in 1983, listing the charges, Your Honor of disorderly conduct, 14-5, and resisting arrest, 14-2. I believe there is a copy of this for the Court as an exhibit. There is a space for a third count and it was left blank. There is no trespassing charge.”
Defendants argue that plaintiff’s statements before the superior court upon the hearing of defendants’ motion for summary judgment “shows that the Defendant has repeated a statement made by the Plaintiff to the effect that he was arrested for trespass.” However, the newspaper article refers to a specific incident which apparently oc*397curred on October 17, 1982. The arrest of plaintiff on that date is the basis of a separate action by plaintiff against the defendant city and two former police officers. The newspaper article involves an account of defendant Jenkins’ report on the progress of that separate litigation given at a meeting of the City Council of Elberton.
Decided March 21, 1986. Harold N. Acker, pro se. John S. Jenkins, for appellees.“On a motion for summary judgment under OCGA § 9-11-56 the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Eiberger v. West, 247 Ga. 767 (281 SE2d 148) (1981). This is so even when, as in the instant case, the movant is the party on whom the burden of proof at trial does not lie: all the evidence must be construed against the movant and in favor of the party opposing the motion — here [plaintiff]. Pugh v. Frank Jackson Lincoln-Mercury, 165 Ga. App. 292 (300 SE2d 227) (1983).” Georgia Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618). Although plaintiff’s remarks may be difficult to comprehend, insofar as they relate to his being charged with trespass, they may reasonably be understood to refer to an incident prior to and apparently unrelated to the incident which is referenced in the newspaper article. Nor is there any other evidence piercing the allegations of appellant’s complaint. Consequently, defendants have failed to negate one of the essential elements of plaintiff’s case and genuine issues of material fact remain. I would hold that the trial court erred in granting summary judgment to defendants. See Tedoff v. Moncrief Unique Indoor Comfort, 166 Ga. App. 426 (304 SE2d 529).
3. Additionally, in regard to the defendant city, plaintiff’s failure to comply with the notice provision of OCGA § 36-33-5 should be raised as a plea in abatement and is not a proper subject for summary judgment. Jones v. City of Austell, 166 Ga. App. 808, 810 (305 SE2d 653).
I am authorized to state that Chief Judge Banke joins in this dissent.