Johnson v. Lastinger Et Al., 152 Ga. App. 328, 262 S.E.2d 601 (1979)

Georgia Court Of Appeals

Status: ARGUED

Docket Number: 58646

Parts: DEEN, Chief Judge.

Linked as:

Summary

Judgment affirmed. Shulman and Carley, JJ., concur.

Summary

Judgment affirmed. Shulman and Carley, JJ., concur.

Text

C. H. Brown, Susan E. Warren, for appellant.

When this case was here before we held ( Lastinger v. Johnson, 150 Ga. App. 57 (256 SE2d 662) (1979). That case was decided under the provisions of Code Ann. 41A-3801 et seq. which introduced new statutory results flowing from multi-party bank accounts. In this case the rights of the parties vested prior to the 1976 Act (Ga. L. 1976, p. 1388 et seq.).

2. In view of the understandable confusion resulting from the misinterpretation of White v. Royal, supra, we decline to assess damages for a frivolous appeal.

3. By supplemental brief counsel has for the first time raised the issue of whether the appellant claimed a part of the fund in the account, up to $2,000, as her own money, and in support thereof has asked the court to consider a supplemental transcript submitted after argument of the case in this court. We note that the supplemental transcript consists of testimony offered at an interlocutory hearing on a motion for a temporary restraining order; that the hearing was held before a judge other than the judge who passed on the motion for summary judgment, and that this particular transcript was not filed in the trial court until after the final judgment and the notice of appeal to this court. We are aware of the line of cases beginning with Thompson v. Abbott, 226 Ga. 353 (174 SE2d 904) (1970) to the effect that the trial judge should always search the entire record before granting a motion for summary judgment, but this statement was in General Motors Corp. v. Walker, 244 Ga. 191 (1979) held to be obiter. Code Ann. 81A-156 (c) requires that depositions on file be considered; it says nothing about oral testimony not on file, not referred to in the motion, and not available to the memo of the judge conducting the hearing. This court has "jurisdiction for the trial and correction of errors of law" only. Code 2-3108. where the supplemental transcript as unknown and unavailable to the trial judge there wa obviously no error on his part in not considering it.

Bobby Jones, for appellees.

1979