Oster v. Rich's, Inc.

Court of Appeals of Georgia

Oster v. Rich's, Inc.

231 S.E.2d 140, 140 Ga. App. 373, 1976 Ga. App. LEXIS 1483

CourtCourt of Appeals of Georgia

DecidedNovember 9, 1976

Docket52850

StatusPublished

Cited by4 cases

This text of 231 S.E.2d 140 (Oster v. Rich's, Inc.) 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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Oster v. Rich's, Inc., 231 S.E.2d 140, 140 Ga. App. 373, 1976 Ga. App. LEXIS 1483 (Ga. Ct. App. 1976).

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Opinion

Smith, Judge.

The complaint alleges the defendant, appellant, was indebted to the complainant, appellee, "in the sum of $362.80 . . . upon an open account for goods, wares and merchandise sold and delivered” and that said "account is past due and unpaid and payment thereof has been demanded from the defendant, but defendant has failed and refused to pay the same.” These allegations were denied by the answer. Upon a trial before the trial judge *374 without the intervention of the jury, a judgment containing the following recitations was rendered in favor of the complainant: "This case coming on for trial this date and both parties being represented by counsel, and after consideration of the evidence and argument, the court finds that the facts set out in the plaintiffs complaint are true, and concludes that plaintiff is entitled to a judgment therefor.” The defendant, appellant, appealed the judgment to this court enumerating as error the failure of the trial judge to state separately his findings of fact and conclusions of law as required by Code Ann. § 81A-152 and on the sufficiency of the evidence to authorize the findings.

Submitted October 4, 1976 Decided November 9, 1976. Ringel, Gray & Hinson, Harry S. Kuniansky, for appellant. Marion Cornett, Jr., for appellee.

The writer of this opinion feels that in the simple fact situation here, there is sufficient compliance with Code Ann. § 81A-152 so as to prevent a remand upon this enumeration of error by the appellant.

However, this court is bound by the decision of the Supreme Court of this state in Doyal Development Co. v. Blair, 234 Ga. 261 (215 SE2d 471); s. c. 133 Ga. App. 613 (211 SE2d 642) and 135 Ga. App. 337 (217 SE2d 501) holding compliance with the above section is mandatory. Therefore, this case is remanded to the trial court with direction that its previous judgment be vacated and enter a new judgment setting forth separately findings of fact and conclusions of law, after which the losing party shall be free to enter another appeal if he should wish to do so.

Judgment reversed with direction.

Deen, P. J., and Webb, J., concur.

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Smith, Judge.

The complaint alleges the defendant, appellant, was indebted to the complainant, appellee, "in the sum of $362.80 . . . upon an open account for goods, wares and merchandise sold and delivered” and that said "account is past due and unpaid and payment thereof has been demanded from the defendant, but defendant has failed and refused to pay the same.” These allegations were denied by the answer. Upon a trial before the trial judge *374 without the intervention of the jury, a judgment containing the following recitations was rendered in favor of the complainant: "This case coming on for trial this date and both parties being represented by counsel, and after consideration of the evidence and argument, the court finds that the facts set out in the plaintiffs complaint are true, and concludes that plaintiff is entitled to a judgment therefor.” The defendant, appellant, appealed the judgment to this court enumerating as error the failure of the trial judge to state separately his findings of fact and conclusions of law as required by Code Ann. § 81A-152 and on the sufficiency of the evidence to authorize the findings.

Submitted October 4, 1976 Decided November 9, 1976. Ringel, Gray & Hinson, Harry S. Kuniansky, for appellant. Marion Cornett, Jr., for appellee.

The writer of this opinion feels that in the simple fact situation here, there is sufficient compliance with Code Ann. § 81A-152 so as to prevent a remand upon this enumeration of error by the appellant.

However, this court is bound by the decision of the Supreme Court of this state in Doyal Development Co. v. Blair, 234 Ga. 261 (215 SE2d 471); s. c. 133 Ga. App. 613 (211 SE2d 642) and 135 Ga. App. 337 (217 SE2d 501) holding compliance with the above section is mandatory. Therefore, this case is remanded to the trial court with direction that its previous judgment be vacated and enter a new judgment setting forth separately findings of fact and conclusions of law, after which the losing party shall be free to enter another appeal if he should wish to do so.

Judgment reversed with direction.

Deen, P. J., and Webb, J., concur.

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231 S.E.2d 140, 140 Ga. App. 373, 1976 Ga. App. LEXIS 1483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oster-v-richs-inc-gactapp-1976.

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