Carroll v. AFCO Credit Corp.

238 S.E.2d 264, 143 Ga. App. 264, 1977 Ga. App. LEXIS 2279

• Court: Court of Appeals of Georgia
• Decided: September 15, 1977
• Docket: 54269
• Status: Published

Opinion

Birdsong, Judge.

Appellant was sued by appellee on an open account for $599.07 principal, $41.93 interest and court costs. The instant suit was for balance due on insurance premiums. Appellant filed his answer denying that he owed any amount and attached as an exhibit to his answer a letter from appellant to appellee’s attorney claiming an overpayment.

The case was tried without a jury by the Judge of the State Court of DeKalb County and a judgment was rendered by the court against the appellant for $589.07 plus costs of court.

Appellant appeals and enumerates as error: (1) The trial court erred in failing to rule upon the counterclaim which was contained in appellant’s answer; (2) The trial court erred in its failure to make findings of fact and conclusions of law. Held:

1. Enumeration of error number 1 has no merit. Even under the liberal concept of pleading as set forth in the Georgia Civil Practice Act, the filing of a letter as an exhibit to defensive pleadings cannot be considered as a counterclaim.

2. Enumeration of error number 2 has merit. Since there was a failure to make the requisite findings of fact and conclusions of law, the appeal must be remanded with direction that the trial judge vacate the judgment and that he prepare or cause to be prepared appropriate findings of fact and conclusions of law, and enter a new judgment thereon. Thereafter, the losing party shall be free to enter another appeal if he should wish to do so. Bell v. Stocks, 128 Ga. App. 799 (198 SE2d 209).

Judgment remanded with direction.

Deen, P. J., and Webb, J., concur. Submitted September 6, 1977 Decided September 15, 1977. Huddleston & Medori, H. Martin Huddleston, for appellant. Lazarus & Stokes, Wayne H. Lazarus, John C. Heath, for appellee.