Doyal Development Company, Inc. v. Blair; and v.ce v.rsa., 133 Ga. App. 613, 211 S.E.2d 642 (1974)
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Judgments affirmed. Bell, C. J., Deen, P. J., Quillian, Clark, Stolz and Marshall, JJ., concur. Pannell, P. J., concurs in the judgment. Evans, J., dissents.
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Judgments affirmed. Bell, C. J., Deen, P. J., Quillian, Clark, Stolz and Marshall, JJ., concur. Pannell, P. J., concurs in the judgment. Evans, J., dissents.
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McHaney & Lynn, Robert L. McHaney, Jr., for appellee.Rolader, Barham, Davis, Graham & McEvoy, D. W. Rolader, for appellant.
1. "The appellants contend that the trial court erred in entering judgment against them without first finding the facts specially and in failing to state separately its conclusions of law as required by Code Ann. 81A-152 (a) . . . In 5A Moore's Federal Practice (2d Ed.) 2706, 52-06[1] it is stated: 'The purpose of findings of fact is threefold: as an aid in the trial judge's process of adjudication; for purposes of res judicata and estoppel by judgment; and as an aid to the appellate court on review.' The findings of the trial court in this case (and in the case sub judice) are sufficient to enable this court to understand clearly the basis of its decision and the conclusion of law reached by it." General Teamsters Local Union No. 528 v. Allied Foods, Inc.,
2. The evidence amply supports the findings and the judgment, no error of law appears for any reason assigned, and the judgment will not be disturbed. Spivey v. Mayson,
3. In the cross appeal, no error appears in the failure of the trial court to award attorney fees and expenses of litigation for the mere refusal of defendant to pay a disputed contractual claim. Lovell v. Frankum,
EVANS, Judge, dissenting.
Appellant enumerates error, among other things, on the ground that the trial judge did not "make proper findings of fact specially and to state separately its conclusions of law" as required by Code Ann. 81A-152 (a).
I find this enumeration to be meritorious. Code Ann. 81A-152 (a), dealing with judgments rendered by a judge without a jury, requires that ". . . the court shall find the facts specially, and state separately its conclusions of law thereon." (Emphasis supplied.) This action has been held to be mandatory and not discretionary. Spivey v. Mayson,
In the case sub judice, there is no finding of facts specially or otherwise; and there is no conclusion of law stated separately or otherwise. The judgment does recite that:
"The court finds as follows . . ." followed by four pages of evidentiary matter. It is not suggested or stated whether this is a finding of fact or a conclusion of law. At the end of the four pages it is recited that "it is therefore considered and adjudged that plaintiff be awarded the sum of $16,350 and costs of this action." This is not designated as a finding of fact or conclusion of law.
Under these circumstances, I consider that we are bound by the Booker case, supra, and that this case should be remanded to the lower court, with direction that within 30 days the original judgment be vacated, and that special findings of fact and conclusions of law be made, and stated separately, and that judgment be entered thereon.
In support of its contention that no reversal should result in this case because of the trial court's failure to set forth findings of fact and conclusions of law, two Supreme Court cases are cited, to wit: Faucette v. Faucette,
Directly in point is the recent case of Bituminous Cas. Corp. v. J. B. Forrest,
I therefore respectfully dissent from the majority opinion, which affirms the judgment of the lower court.
1974
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This document cites
- Supreme Court of Georgia - COLLINS v. COLLINS., 231 Ga. 683, 203 S.E.2.d 524
- Supreme Court of Georgia - FAUCETTE v. FAUCETTE., 228 Ga. 201, 184 S.E.2.d 586 (1971)
- Supreme Court of Georgia - GENERAL TEAMSTERS LOCAL UNION NO. 528 et al. v. ALLIED FOODS, INC., 228 Ga. 479, 186 S.E.2.d 527
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