Yalanzon v. SHARON CONSTRUCTION COMPANY, INC.

141 Ga. App. 294 (1977)

233 S.E.2d 220

YALANZON et al. v. SHARON CONSTRUCTION COMPANY, INC.

53100.

Court of Appeals of Georgia.

Argued January 10, 1977.

Decided January 27, 1977.

Rehearing Denied February 17, 1977.

Bryant & Davis, Larry S. Bryant, Johnson & Montgomery, Albert Sidney Johnson, William D. Montgomery, for appellants.

Davies Owens, for appellee.

SHULMAN, Judge.

Defendants appeal from the judgment rendered by the trial court sitting without a jury in an action for money owed for the construction of a house and for the establishment of a lien. Five enumerations of error are presented for our review.

1. The plaintiff's motion for damages for frivolous appeal is denied.

2. The first three enumerations of error concern the court's findings of fact. An appellate court will not disturb the fact findings of a judge sitting without a jury if there is any evidence to support them, unless they are clearly erroneous. Code Ann. § 81A-152 (a); Associated Distributors v. McBee, 140 Ga. App. 433; Doyal Development *295 Co. v. Blair, 137 Ga. App. 434 (224 SE2d 55). Applying this standard to our review of the record and transcript, we find no cause for reversal of the trial court's findings.

3. There is likewise no merit to defendants' fifth enumeration wherein it is asserted that the court erred in denying their motion for new trial. The same issues raised in that motion are disposed of in Division 2 of this opinion.

4. In their fourth enumeration the defendants contend that the court erred in concluding that the plaintiff was entitled to a special lien on their property. The basis of this contention is that defendants, prior to trial, secured a bond releasing the property from the lien.

Code Ann. § 67-2004 provides in part that "Upon the filing of the bond provided for herein, the real estate shall be discharged from the lien." Our review of the record does not disclose whether a bond was in fact obtained by the defendants. Moreover, we are unable to determine whether the trial court made a finding as to the existence of a bond meeting the requirements of Code Ann. § 67-2004, or whether he considered it in rendering his judgment. We must therefore remand this case for such determination and consideration by the court and for clarification of the judgment establishing the lien.

Judgment affirmed with direction. Quillian, P. J., and Stolz, J., concur.