Moore v. Trust Company Bank

142 Ga. App. 877 (1977)

237 S.E.2d 471

MOORE et al. v. TRUST COMPANY BANK.

54095.

Court of Appeals of Georgia.

Argued May 24, 1977.

Decided July 14, 1977.

William S. Moore, pro se.

Nellie J. Moore, pro se.

T. W. Gcabashe, for appellee.

BELL, Chief Judge.

The plaintiffs, depositors, sued the defendant bank for damages because of the claimed wrongful submission to a levy on plaintiffs' account by the Internal Revenue Service for payment of federal income tax. Defendant moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The court granted the motion and in so doing considered matters outside the pleadings. Thus the grant must be treated as one for summary judgment. CPA § 12 (b) (Code Ann. § 81A-112 (b)). The plaintiffs have appeared pro se in this court and enumerate two errors. Held:

1. Enumeration 1 is that the court erred in not dismissing the defendant's motion because of "default." The record fails to indicate that the claimed error ever occurred. Thus, there is nothing to review. The burden is on the appellant to show error affirmatively by the record. J. W. J. v. State of Ga., 140 Ga. App. 366 (231 SE2d 131).

2. The second claim of error is that plaintiffs were denied a trial by jury. This case was correctly decided on summary judgment. Plaintiffs, as a consequence, were not entitled to a jury trial. CPA § 56 (Code Ann. § 81A-156).

Judgment affirmed. McMurray and Smith, JJ., concur.