Goolsby v. Administrator of Veterans Affairs

Court of Appeals of Georgia

Goolsby v. Administrator of Veterans Affairs

302 S.E.2d 140, 165 Ga. App. 496, 1983 Ga. App. LEXIS 1922

CourtCourt of Appeals of Georgia

DecidedFebruary 21, 1983

Docket65813

StatusPublished

This text of 302 S.E.2d 140 (Goolsby v. Administrator of Veterans Affairs) 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.

Bluebook

Goolsby v. Administrator of Veterans Affairs, 302 S.E.2d 140, 165 Ga. App. 496, 1983 Ga. App. LEXIS 1922 (Ga. Ct. App. 1983).

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Opinion

Quillian, Presiding Judge.

The defendant appeals from a judgment granting a writ of possession in favor of the plaintiff. The sole enumeration of error is that the trial judge failed to make findings of fact and conclusions of law as required by OCGA § 9-11-52 (a) (formerly Code Ann. § 81A-152 (a)). It is asserted that the defendant did not waive this requirement.

The order in this case recites that neither defendant nor his counsel appeared; that evidence was presented by plaintiff but not by defendant; that plaintiff was granted a writ of possession “based on the undisputed evidence.”

It is therefore clear that this case was not a pure dismissal on motion as found in Smith v. Mack, 161 Ga. App. 95 (289 SE2d 299) which is an exception to OCGA § 9-11-52 (a) (Code Ann. § 81A-152). Instead, the case must be remanded with direction that the trial court vacate the judgment and prepare, or cause to be prepared, appropriate findings of fact and conclusions of law, after which the losing party is free to enter a new appeal. Bob Bennett Enterprises v. Trust Co. Bank, 153 Ga. App. 344 (265 SE2d 311).

Appeal remanded with direction.

Sognier and Pope, JJ., concur.

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Quillian, Presiding Judge.

The defendant appeals from a judgment granting a writ of possession in favor of the plaintiff. The sole enumeration of error is that the trial judge failed to make findings of fact and conclusions of law as required by OCGA § 9-11-52 (a) (formerly Code Ann. § 81A-152 (a)). It is asserted that the defendant did not waive this requirement.

The order in this case recites that neither defendant nor his counsel appeared; that evidence was presented by plaintiff but not by defendant; that plaintiff was granted a writ of possession “based on the undisputed evidence.”

It is therefore clear that this case was not a pure dismissal on motion as found in Smith v. Mack, 161 Ga. App. 95 (289 SE2d 299) which is an exception to OCGA § 9-11-52 (a) (Code Ann. § 81A-152). Instead, the case must be remanded with direction that the trial court vacate the judgment and prepare, or cause to be prepared, appropriate findings of fact and conclusions of law, after which the losing party is free to enter a new appeal. Bob Bennett Enterprises v. Trust Co. Bank, 153 Ga. App. 344 (265 SE2d 311).

Appeal remanded with direction.

Sognier and Pope, JJ., concur.

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Bluebook (online)

302 S.E.2d 140, 165 Ga. App. 496, 1983 Ga. App. LEXIS 1922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goolsby-v-administrator-of-veterans-affairs-gactapp-1983.

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