Taylor v. Bentley

305 S.E.2d 617, 166 Ga. App. 887, 1983 Ga. App. LEXIS 2362

Opinion

Banke, Judge.

This is an appeal from a judgment in favor of the plaintiff in a dispossessory action. In accordance with the notice of appeal, no transcript of evidence has been transmitted to us by the trial court. Held:

1. Any defect in the service of process must be deemed waived, as there is no indication in the record before us that the issue was raised in the trial court. See generally OCGA § 9-11-12 (h) (Code Ann. § 81A-112); Moore v. First Nat. Bk. of Atlanta, 141 Ga. App. 164 (233 SE2d 26) (1977).

2. The remaining enumerations of error concern evidentiary matters and cannot be considered in the absence of a transcript of the evidence presented at trial. See generally Castile v. Rich’s, Inc., 131 Ga. App. 586 (2) (206 SE2d 851) (1974). Exhibits attached to an appellate brief but not appearing in the record transmitted by the trial court cannot be considered by this court and afford no basis for reversal. Strickland v. American Motorists Ins. Co., 149 Ga. App. 690 (256 SE2d 92) (1979).

3. The appellee’s motion to dismiss the appeal as frivolous is denied. Lack of merit is not ordinarily a proper ground for the dismissal of an appeal but results in the affirmance of the trial court’s judgment. The motion for imposition of $5,000 damages for filing a frivolous appeal is also denied, as this sum does not represent 10 percent of the amount of damages awarded by the court below. See generally OCGA § 5-6-6 (Code Ann. § 6-1801).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.