Harbin Lumber Co. v. Fowler

Court of Appeals of Georgia

Harbin Lumber Co. v. Fowler

235 S.E.2d 638, 142 Ga. App. 167, 1977 Ga. App. LEXIS 1527

CourtCourt of Appeals of Georgia

DecidedMay 2, 1977

Docket53669

StatusPublished

Cited by2 cases

This text of 235 S.E.2d 638 (Harbin Lumber Co. v. Fowler) 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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Harbin Lumber Co. v. Fowler, 235 S.E.2d 638, 142 Ga. App. 167, 1977 Ga. App. LEXIS 1527 (Ga. Ct. App. 1977).

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Opinion

McMurray, Judge.

This appeal is from an order of the trial court dismissing plaintiffs complaint. It is quite clear the court [168]*168considered defendant’s motion to dismiss after hearing evidence, thus converting the motion into one for summary judgment (see Code Ann. § 81A-112 (b); CPA § 12; Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693), although the record does not disclose whether or not there was notice and hearing as required giving all parties a reasonable opportunity to present all materials pertinent to the motion under Code Ann. § 81A-156 (CPA, § 56; Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759). But no question as to this is involved on this appeal since no objection was made to the procedure.

Argued April 4, 1977 Decided May 2, 1977. Andrew J. Hill, Jr., Edward E. Strain, III, for appellant. McClure, Ramsay, Struble & Dickerson, Robert B. Struble, Erwin, Epting, Gibson & McLeod, Gary B. Blasingame, for appellee.

The sole alleged error cannot be determined without reference to the evidence adduced at the hearing of defendant’s motion. No transcript of the evidence was transmitted to this court and we have ascertained that no transcript has been filed in the trial court; consequently, in the absence of such transcript it must be presumed that the order of the trial court was authorized by the evidence. Smith v. Smith, 223 Ga. 795, 796 (2) (158 SE2d 679); Nichols v. Love, 227 Ga. 659, 660 (2) (182 SE2d 439); Frost v. Gasaway, 229 Ga. 354, 355 (190 SE2d 902); Marlow v. Tankersley, 230 Ga. 460, 461 (197 SE2d 709).

Judgment affirmed.

Bell, C. J., and Smith, J., concur.

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McMurray, Judge.

This appeal is from an order of the trial court dismissing plaintiffs complaint. It is quite clear the court [168]*168considered defendant’s motion to dismiss after hearing evidence, thus converting the motion into one for summary judgment (see Code Ann. § 81A-112 (b); CPA § 12; Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693), although the record does not disclose whether or not there was notice and hearing as required giving all parties a reasonable opportunity to present all materials pertinent to the motion under Code Ann. § 81A-156 (CPA, § 56; Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759). But no question as to this is involved on this appeal since no objection was made to the procedure.

Argued April 4, 1977 Decided May 2, 1977. Andrew J. Hill, Jr., Edward E. Strain, III, for appellant. McClure, Ramsay, Struble & Dickerson, Robert B. Struble, Erwin, Epting, Gibson & McLeod, Gary B. Blasingame, for appellee.

The sole alleged error cannot be determined without reference to the evidence adduced at the hearing of defendant’s motion. No transcript of the evidence was transmitted to this court and we have ascertained that no transcript has been filed in the trial court; consequently, in the absence of such transcript it must be presumed that the order of the trial court was authorized by the evidence. Smith v. Smith, 223 Ga. 795, 796 (2) (158 SE2d 679); Nichols v. Love, 227 Ga. 659, 660 (2) (182 SE2d 439); Frost v. Gasaway, 229 Ga. 354, 355 (190 SE2d 902); Marlow v. Tankersley, 230 Ga. 460, 461 (197 SE2d 709).

Judgment affirmed.

Bell, C. J., and Smith, J., concur.

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235 S.E.2d 638, 142 Ga. App. 167, 1977 Ga. App. LEXIS 1527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harbin-lumber-co-v-fowler-gactapp-1977.

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