Abad v. Kraft, Inc.

426 S.E.2d 270, 206 Ga. App. 626, 93 Fulton County D. Rep. 24, 1992 Ga. App. LEXIS 1727

• Court: Court of Appeals of Georgia
• Decided: December 4, 1992
• Docket: A91A1084
• Status: Published

Opinion

Cooper, Judge.

This court entered a judgment in the above-styled case at 201 Ga. App. 523 (411 SE2d 500) (1991) reversing the judgment of the trial court. The Georgia Supreme Court granted certiorari in Kraft v. Abad, 262 Ga. 336 (417 SE2d 317) (1992) and reversed our holding. Accordingly, our judgment is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court with respect to appellant’s first enumeration of error. In our first opinion, we declined to address appellant’s second enumeration of error in which she argued that the trial court erred in striking her demand for a jury trial. We conclude that the authority to also strike appellant’s demand for a jury trial was implicit in the trial court’s authority to enter judgment in favor of the appellee/defendant upon appellant/plaintiffs failure to appear at trial. Cf. Stewart v. Stewart, 260 Ga. 812 (400 SE2d 622) (1991). Appellant’s reliance on Sewell v. Leifer, 144 Ga. App. 36 (240 SE2d 584) (1977) is misplaced. In that case, the trial judge entered judgment in favor of the plaintiff upon the defendant’s failure to appear, but there remained the issue of damages to be tried by the jury. Furthermore, any error in striking appellant’s demand was harmless since appellant failed to present any evidence and judgment for appellee was demanded. See Marler v. C & S Bank, 239 Ga. 342 (236 SE2d 590) (1977). Accordingly, we find no merit to this enumeration of error.

Decided December 4, 1992. Siler & Associates, William A. Dinges, for appellant. Fain, Major & Wiley, Gene A. Major, Bruce A. Maxwell, for appellees.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.