Grizzle v. Federal Land Bank

244 S.E.2d 362, 145 Ga. App. 385, 1978 Ga. App. LEXIS 1994
CourtCourt of Appeals of Georgia
DecidedFebruary 16, 1978
Docket54744, 54745, 54746, 54747, 54748, 54749, 54750
StatusPublished
Cited by16 cases

This text of 244 S.E.2d 362 (Grizzle v. Federal Land Bank) 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
Grizzle v. Federal Land Bank, 244 S.E.2d 362, 145 Ga. App. 385, 1978 Ga. App. LEXIS 1994 (Ga. Ct. App. 1978).

Opinions

Quillian, Presiding Judge.

These seven appeals arise out of proceedings brought by the Federal Land Bank of Columbia (South Carolina) to confirm its sale under foreclosure of seven parcels of land. The trial judge confirmed the sale by an order entered on June 7,1977. Then, after appeals were filed, by order nunc pro tunc June 9,1977, he amended his order to contain findings of fact and conclusions of law. This order was filed July 6, 1977.

For simplicity we have consolidated the various, but often overlapping, enumerations of error into 10 grounds. Following each ground is the case number of the applicable appeal or appeals.

Ground 1: The court erred in entering its order confirming the sale on June 7,1977, in that the order did not contain findings of fact and conclusions of law as contemplated by Code Ann. § 81A-152 (a) (Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171). (Nos. 54744, 54747, 54749, 54750.)

Ground 2: The court had no authority to enter its order of July 6,1977, which was filed on July 12,1977, as an amended order as the court had lost jurisdiction in each case since notice of appeal had been filed previously. (Nos. 54744, 54749, 54750.)

Ground 3: The court abused its discretion and erred in confirming the sale by holding that the "sale price” was [386]*386the fair market value of the realty. (Nos. 54744, 54749, 54750.)

Ground 4: The trial court erred in its conclusions of law that the "venue of the above styled proceedings was properly in the Superior Court of Dawson County.” (No. 54745. )

Ground 5: The trial court erred in limiting the issues to the question of market value, notwithstanding the purported stipulation of the parties as to the "mechanics” of the foreclosure sale. (Nos. 54745, 54746, 54748.)

Ground 6: The trial court erred in its finding of fact that the "notices and advertisements of said sales were published once a week for four weeks immediately preceding the day of the sale in the proper newspaper” and further erred in its conclusions of law that those advertisements were "legal and regular.” (Nos. 54745, 54746, 54748.)

Ground 7: The trial court erred in its finding of fact that the "sale ... did not... bring the amount of the debt then owing and secured by the deed to secure debt. . .” (Nos. 54745, 54746, 54748.)

Ground 8: The trial court erred in entering the order and amended order confirming the sale. (Nos. 54745, 54746, 54748.)

Ground 9: It was error to accept the value of $600 per acre ascribed to the tract in which Lynn Bottoms was involved because the clear preponderance of the evidence was that this was less than its true value; that the figure was arrived at on an illogical and unreasonable basis that any sale of acreage in Dawson County was considered by the appraiser Rogers as a "comparable sale” regardless of location; and the $600 per acre for this tract was a "forced sale” price. (Nos. 54747.)

Ground 10: The trial court erred in its finding of fact that the "price obtained at the sale... (was)... (d) K-77-18 $96,000.” (No. 54748.) Held:

Grounds 1 and 2

Where error was enumerated on the failure to comply with Code Ann. § 81A-152 (Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171), the Supreme Court pointed out in Northside Realty v. Peachtree Mtg. Corp., 239 Ga. 62, 64, 65 (235 SE2d 491), it has handled the cases in three [387]*387different ways: (1) "In some cases we have considered findings of fact and conclusions of law made subsequently to the order appealed from and transmitted to this court... (2) In other cases, while the case was pending in this court we have requested the trial judge to make findings of fact and conclusions of law and file them in the trial court clerk’s office, to be transmitted to this court... (3) In other cases, we have reversed the judgment and remanded the case for the entry of a new judgment which will include findings of fact and conclusions of law, with the right of appeal from the judgment.” The court then held: "The entry of a supplemental order making findings of fact and conclusions of law, pursuant to Code Ann. § 81A-152, does not change the effect of a final order dismissing a complaint, but merely sets out the basis for the judgment of dismissal. It is not a new judgment. . .”

Here, the trial judge included the findings of fact and conclusions of law by subsequent judgment. Under these circumstances, this court will not require a vain action by reversing and remanding where full compliance with the law’s purpose has been achieved. Grounds 1 and 2 are without merit. See Wall v. Federal Land Bank, 240 Ga. 236 (1977).

Grounds 3 and 9

Although the testimony of the expert witness for the appellee was contradictory and the bases for his opinion were subject to attack, and furthermore several witnesses for the parties opposing the confirmation gave higher appraisals of value and more thorough reasons for their opinion, still the judgment may not be reversed. Questions as to the weight of the evidence and as to the credibility of witnesses are for the trier of fact. His findings will not be disturbed absent evidence demanding a contrary judgment.

"In confirmation proceedings, the judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. He hears the evidence and his findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them... What value is, or may have been, is a question of fact to be resolved as others are. In so doing, the trial court is the judge of the credibility of the witnesses and of the [388]*388weight to be given the evidence.” American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 661 (227 SE2d 46). Accord, Nat. Community Builders v. C. & S. Nat. Bank, 232 Ga. 594, 596 (207 SE2d 510).

We recognize that where the trial judge considers inadmissible matter or acts upon an erroneous legal premise then the rule of right for any reason is not applicable. Smith v. Andrews, 139 Ga. App. 380, 381 (228 SE2d 320).

In the case sub judice there is some indication that the trial judge considered he was bound by Giordano v. Stubbs, 228 Ga. 75 (184 SE2d 165), in determining the question of whether there was a fatal variance between the price brought at the sale and the true market value of the property. We have held that Giordano was not the proper guide in a confirmation proceeding and disapproved Wachovia Mtg. Co. v. Moore, 138 Ga. App. 101 (225 SE2d 460), for so holding. Giordano controls only in an equitable proceeding to set aside a sale. Federal Deposit Ins. Corp. v. Ivey-Matherly Const. Co., 144 Ga. App. 313. The trial judge in the final order did not state that the price the property sold for was not grossly inadequate or that there was no excessive variation from such price and its true market value. Instead, he found that the price brought its true market value; thus, apparently he adopted the evidence of value introduced by the appellee.

Since we can not determine with certainty that the judge’s determination was based on a misapplication of legal principles rather than an exercise of discretion and legitimate sifting of the evidence as the trier of fact, we must affirm.

Grounds 3 and 9 are without merit.

Grounds 4 through 7

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Grizzle v. Federal Land Bank
244 S.E.2d 362 (Court of Appeals of Georgia, 1978)

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Bluebook (online)
244 S.E.2d 362, 145 Ga. App. 385, 1978 Ga. App. LEXIS 1994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grizzle-v-federal-land-bank-gactapp-1978.