Bell v. Stocks

Court of Appeals of Georgia

Bell v. Stocks

198 S.E.2d 209, 128 Ga. App. 799, 1973 Ga. App. LEXIS 1624

CourtCourt of Appeals of Georgia

DecidedApril 13, 1973

Docket48099

StatusPublished

Cited by12 cases

This text of 198 S.E.2d 209 (Bell v. Stocks) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bell v. Stocks, 198 S.E.2d 209, 128 Ga. App. 799, 1973 Ga. App. LEXIS 1624 (Ga. Ct. App. 1973).

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Opinion

Stolz, Judge.

In this action in the State Court of DeKalb County for damages for breach of an implied warranty of merchantability on an AM-FM-Stereo set purchased for $632.35, the trial judge, on the plaintiffs’ motion, dismissed defendant Stocks’ answer for failure to answer the plaintiffs’ interrogatories, and entered a default judgment against said defendant on the issue of liability. After a trial without a jury on the issue of damages, the judge entered a judgment for the defendant, unsupported by any special finding of facts or separate conclusions of law thereon. After the plaintiffs filed their notice of appeal from this judgment, the trial judge denied plaintiff Mr. Bell’s motion for certification of his proposed transcript prepared from recollection (which the defendants *800 allegedly had neither accepted, offered to amend, nor rejected), holding that the parties were unable to agree on a transcript and that, after reviewing the proposed transcript, he was unable to determine what transpired. Held:

Argued April 10, 1973 Decided April 13, 1973. Alden C. Harrington, for appellants.

The trial judge was required to "find the facts specially and state separately [his] conclusions of law thereon” and enter judgment pursuant to Code Ann. § 81A-158, by the mandatory provisions of Code Ann. § 81 A-152(a) (Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171), made applicable to the State Court of DeKalb County by Ga. L. 1970, pp. 679, 680, 681 (Code Ann. §§ 24-2107a, 24-2101a, and 24-2102a). See Booker v. J. T. Bickers Realty Co., 127 Ga. App. 614, 616 (194 SE2d 490) and cits.

Since there was a failure to make the requisite findings — caused by the trial judge’s inability to recollect or determine what transpired at the trial, resulting in the absence of an approved transcript, without which this court can not pass on the enumerated errors — the appeal must be remanded with direction that the trial judge vacate the judgment, grant a new trial, and enter a new judgment based on appropriate findings of fact and conclusions of law. Thereafter, the losing party shall be free to enter another appeal if he should wish to do so.

Appeal remanded with direction.

Eberhardt, P. J., and Pannell, J., concur.

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Stolz, Judge.

In this action in the State Court of DeKalb County for damages for breach of an implied warranty of merchantability on an AM-FM-Stereo set purchased for $632.35, the trial judge, on the plaintiffs’ motion, dismissed defendant Stocks’ answer for failure to answer the plaintiffs’ interrogatories, and entered a default judgment against said defendant on the issue of liability. After a trial without a jury on the issue of damages, the judge entered a judgment for the defendant, unsupported by any special finding of facts or separate conclusions of law thereon. After the plaintiffs filed their notice of appeal from this judgment, the trial judge denied plaintiff Mr. Bell’s motion for certification of his proposed transcript prepared from recollection (which the defendants *800 allegedly had neither accepted, offered to amend, nor rejected), holding that the parties were unable to agree on a transcript and that, after reviewing the proposed transcript, he was unable to determine what transpired. Held:

Argued April 10, 1973 Decided April 13, 1973. Alden C. Harrington, for appellants.

The trial judge was required to "find the facts specially and state separately [his] conclusions of law thereon” and enter judgment pursuant to Code Ann. § 81A-158, by the mandatory provisions of Code Ann. § 81 A-152(a) (Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171), made applicable to the State Court of DeKalb County by Ga. L. 1970, pp. 679, 680, 681 (Code Ann. §§ 24-2107a, 24-2101a, and 24-2102a). See Booker v. J. T. Bickers Realty Co., 127 Ga. App. 614, 616 (194 SE2d 490) and cits.

Since there was a failure to make the requisite findings — caused by the trial judge’s inability to recollect or determine what transpired at the trial, resulting in the absence of an approved transcript, without which this court can not pass on the enumerated errors — the appeal must be remanded with direction that the trial judge vacate the judgment, grant a new trial, and enter a new judgment based on appropriate findings of fact and conclusions of law. Thereafter, the losing party shall be free to enter another appeal if he should wish to do so.

Appeal remanded with direction.

Eberhardt, P. J., and Pannell, J., concur.

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Bluebook (online)

198 S.E.2d 209, 128 Ga. App. 799, 1973 Ga. App. LEXIS 1624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-stocks-gactapp-1973.

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