Matthews v. Pebble Creek Apartments

Court of Appeals of Georgia

Matthews v. Pebble Creek Apartments

416 S.E.2d 870, 203 Ga. App. 359, 1992 Ga. App. LEXIS 418

CourtCourt of Appeals of Georgia

DecidedMarch 12, 1992

DocketA92A0690

StatusPublished

This text of 416 S.E.2d 870 (Matthews v. Pebble Creek Apartments) 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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Matthews v. Pebble Creek Apartments, 416 S.E.2d 870, 203 Ga. App. 359, 1992 Ga. App. LEXIS 418 (Ga. Ct. App. 1992).

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Opinion

McMurray, Presiding Judge.

This is a proceeding for a dispossessory warrant. Appellant Matthews appeals following the grant of a writ of possession to appellee Pebble Creek Apartments and the award of $723 accrued rent. Held:

As issues other than the amount of rent due were raised by appellant’s answer, a direct appeal is proper. Harris v. Wilwat Properties, 201 Ga. App. 161 (410 SE2d 372). Appellee’s motion to dismiss the appeal is denied.

The judgment recites that it was entered by the trial court after hearing evidence and no appearance by appellant having been made until after the second call of the calendar. All of appellant’s enumerations of error are directed toward explaining the tardy arrival in court and complaining of the trial court’s refusal to thereafter consider appellant’s evidence.

The factual assertions upon which appellant relies to explain the tardy arrival in court are not supported by the record on appeal but are contained only in appellant’s brief. “The burden is on the one who asserts error to show it affirmatively by the record, and the briefs of the parties cannot be used in lieu thereof for adding evidence to support or refute a claim. Gurly v. Hinson, 194 Ga. App. 673 (4) (391 SE2d 483) (1990).” Miller v. Tranakos, 198 Ga. App. 668, 671 (3) (402 SE2d 772). Due to the absence of any evidence in the record in support of the enumerations of error, we must assume that the judgment below is correct and affirm. Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (3) (401 SE2d 294); Trend-Pak of Atlanta v. Arbor Commercial Div., 197 Ga. App. 137, 138 (1) (397 SE2d 592).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

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McMurray, Presiding Judge.

This is a proceeding for a dispossessory warrant. Appellant Matthews appeals following the grant of a writ of possession to appellee Pebble Creek Apartments and the award of $723 accrued rent. Held:

As issues other than the amount of rent due were raised by appellant’s answer, a direct appeal is proper. Harris v. Wilwat Properties, 201 Ga. App. 161 (410 SE2d 372). Appellee’s motion to dismiss the appeal is denied.

The judgment recites that it was entered by the trial court after hearing evidence and no appearance by appellant having been made until after the second call of the calendar. All of appellant’s enumerations of error are directed toward explaining the tardy arrival in court and complaining of the trial court’s refusal to thereafter consider appellant’s evidence.

The factual assertions upon which appellant relies to explain the tardy arrival in court are not supported by the record on appeal but are contained only in appellant’s brief. “The burden is on the one who asserts error to show it affirmatively by the record, and the briefs of the parties cannot be used in lieu thereof for adding evidence to support or refute a claim. Gurly v. Hinson, 194 Ga. App. 673 (4) (391 SE2d 483) (1990).” Miller v. Tranakos, 198 Ga. App. 668, 671 (3) (402 SE2d 772). Due to the absence of any evidence in the record in support of the enumerations of error, we must assume that the judgment below is correct and affirm. Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (3) (401 SE2d 294); Trend-Pak of Atlanta v. Arbor Commercial Div., 197 Ga. App. 137, 138 (1) (397 SE2d 592).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

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416 S.E.2d 870, 203 Ga. App. 359, 1992 Ga. App. LEXIS 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthews-v-pebble-creek-apartments-gactapp-1992.

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