Easterling v. Easterling

Supreme Court of Georgia

Easterling v. Easterling

204 S.E.2d 610, 231 Ga. 889, 1974 Ga. LEXIS 1270

CourtSupreme Court of Georgia

DecidedMarch 7, 1974

Docket28585

StatusPublished

Cited by7 cases

This text of 204 S.E.2d 610 (Easterling v. Easterling) is published on Counsel Stack Legal Research, covering Supreme Court 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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Easterling v. Easterling, 204 S.E.2d 610, 231 Ga. 889, 1974 Ga. LEXIS 1270 (Ga. 1974).

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Opinion

Mobley, Chief Justice.

In the divorce action of Louise Cash Easterling against James Hardy Easterling, judgment and decree was entered in favor of the wife for divorce, monthly alimony payments, attorney fees, and described property. The *890 judgment and decree recites that: "Upon consideration of the above entitled case, it appearing that defense has been filed and dismissed on motion, defendant having failed to appear — upon evidence submitted to the court to sustain the allegations of the petition, it is the judgment of the court that a total divorce be granted between the parties; etc.” The husband appeals from this judgment.

Submitted January 17, 1974 Decided March 7, 1974 Rehearing denied March 21, 1974. James H. Easterling, pro se, Robert D. Brooks, for appellant. Joseph E. Cheeley, for appellee.

1. The appellant contends that the court erred in dismissing his defensive pleading on the oral motion of the appellee. Code § 81A-107 (b) (1) (Ga. L. 1966, pp. 609, 618; Ga. L. 1967, pp. 226, 230) provides that motions shall be made in writing, "unless made during a hearing or trial.” The motion to dismiss the appellant’s defensive pleading apparently was made at the trial of the case, where it could be made orally.

2. The appellant asserts that the court erred in proceeding to trial without a jury. There is no merit in this contention since the appellant failed to appear for trial.

3. The appellant asserts that the court erred in failing to put him on notice of the trial date of his case. The record does not show whether notice was given to the appellant. The appellee, in her brief, states that notice was given to the attorney who was representing the appellant at that time.

There is a presumption in favor of the regularity and legality of all proceedings in the superior court. This presumption of law cannot be rebutted by a direct appeal involving an issue of fact which has not been judicially determined by the trial court. Touchton v. Stewart, 229 Ga. 303 (190 SE2d 912).

Judgment affirmed.

All the Justices concur, except Gunter and Ingram, JJ, who dissent.

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Mobley, Chief Justice.

In the divorce action of Louise Cash Easterling against James Hardy Easterling, judgment and decree was entered in favor of the wife for divorce, monthly alimony payments, attorney fees, and described property. The *890 judgment and decree recites that: "Upon consideration of the above entitled case, it appearing that defense has been filed and dismissed on motion, defendant having failed to appear — upon evidence submitted to the court to sustain the allegations of the petition, it is the judgment of the court that a total divorce be granted between the parties; etc.” The husband appeals from this judgment.

Submitted January 17, 1974 Decided March 7, 1974 Rehearing denied March 21, 1974. James H. Easterling, pro se, Robert D. Brooks, for appellant. Joseph E. Cheeley, for appellee.

1. The appellant contends that the court erred in dismissing his defensive pleading on the oral motion of the appellee. Code § 81A-107 (b) (1) (Ga. L. 1966, pp. 609, 618; Ga. L. 1967, pp. 226, 230) provides that motions shall be made in writing, "unless made during a hearing or trial.” The motion to dismiss the appellant’s defensive pleading apparently was made at the trial of the case, where it could be made orally.

2. The appellant asserts that the court erred in proceeding to trial without a jury. There is no merit in this contention since the appellant failed to appear for trial.

3. The appellant asserts that the court erred in failing to put him on notice of the trial date of his case. The record does not show whether notice was given to the appellant. The appellee, in her brief, states that notice was given to the attorney who was representing the appellant at that time.

There is a presumption in favor of the regularity and legality of all proceedings in the superior court. This presumption of law cannot be rebutted by a direct appeal involving an issue of fact which has not been judicially determined by the trial court. Touchton v. Stewart, 229 Ga. 303 (190 SE2d 912).

Judgment affirmed.

All the Justices concur, except Gunter and Ingram, JJ, who dissent.

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204 S.E.2d 610, 231 Ga. 889, 1974 Ga. LEXIS 1270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/easterling-v-easterling-ga-1974.

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