# Whisenhunt v. Allen Parker Co.

> Court of Appeals of Georgia · June 18, 1969 · 119 Ga. App. 813

URL: https://www.frixlaw.com/law-library/cases/9587923

## Case

- **Full name:** WHISENHUNT, Administrator v. ALLEN PARKER COMPANY
- **Court:** Court of Appeals of Georgia
- **Decided:** June 18, 1969
- **Citations:** 119 Ga. App. 813; 168 S.E.2d 827; 6 U.C.C. Rep. Serv. (West) 969; 1969 Ga. App. LEXIS 1263
- **Precedential status:** Published
- **Opinion:** Concurrence by Pannell
- **Judges:** Quillian, Pannell, Felton, Parnell
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9587923

## How later opinions describe it (automated extraction)

- explaining defendants could be liable for torts related to destruction of plaintiff’s personal property when defendants operated without a writ but under law permitting retrieval of collateral “without judicial process if this can be done without breach of the peace or may pro…
- explaining that, although a repossession agency had a right to peacefully repossess a vehicle, it was "responsible for any tortious acts committed during the repossession"

## Opinion text

Pannell, Judge,
concurring specially.
I concur in the result reached in this case, that is, the defendant was not entitled to a general summary judgment as to Counts 1, 3 and 6 of the complaint. I cannot agree, however, with the rulings made by this court in Headnote 3 and the corresponding division of the opinion. This ’uling is based upon two' statements: (a) that we are bound by r ie trial judge’s opinion that the admission or exclusion of the evidence offered over objection would not change *821 or vary the judgment, and (b) that this court cannot pass upon admissibility of evidence where there was no ruling in the lower court. Where motions for summary judgment are granted or denied and an appeal entered in this court, we are continually making determinations of admissibility, this for the very simple reason that on appeal from rulings on motions for summary judgment, this court cannot consider inadmissible evidence, whether objected to or not. Planters Rural Tel. Co-op. v. Chance, 108 Ga. App. 146, 147 ( 132 SE2d 90 ); Varnadoe v. State Farm Mut. Auto. Ins. Co., 112 Ga. App. 366 (1) ( 145 SE2d 104 ); Benefield v. Malone, 112 Ga. App. 408, 411 ( 145 SE2d 732 ).
Secondly, error is enumerated on the trial court’s failure to consider the plaintiff’s objection to the evidence referred to in the opinion. If the appeal is properly before us, so is the enumeration of error, and we must in either event determine its admissibility. While I agree that its admissibility or lack of admissibility will not change the judgment of reversal by this court on this appeal, it may change some of the results upon the trial of this case in the lower court as well as the issues to be submitted to the jury.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9587923. Public record. Not legal advice.