McKnight v. Mitchell

142 Ga. App. 344 (1977)

235 S.E.2d 763

McKNIGHT v. MITCHELL et al.

53930.

Court of Appeals of Georgia.

Argued May 5, 1977.

Decided May 19, 1977.

*346 Mathews, Knight, Jones & MacNabb, Joseph P. MacNabb, for appellant.

Elliott & Turner, Tyron C. Elliott, for appellees.

WEBB, Judge.

This is an appeal from an order of the superior court "affirming" a decision of the county board of zoning *345 appeals. The appeal to the superior court was governed by Code Ann. § 69-1211.1, which provides that the appeal "shall be the same as an appeal to the superior court from any decision made by the court of ordinary and as specified in Chapter 6-2... Provided, however, that on appeal said case shall be heard by judge of the superior court without a jury, unless one of the parties files a written demand for a jury trial within 30 days from the filing of the appeal."

The instant appeal was thus a de novo investigation (Code Ann. § 6-501), and it was tried upon the facts before the court without a jury. The trial court, however, did not make the findings of fact and conclusions of law specified by CPA § 52 (a) (Code Ann. § 81A-152 (a)), which is a mandatory section (Doyal Development Co. v. Blair, 234 Ga. 261 (215 SE2d 471) (1975)); and the result is that the proper scope of our review has been contested and is in doubt.

The Civil Practice Act generally governs in de novo investigations in the superior court on appeal from the court of ordinary. Taylor v. Donaldson, 227 Ga. 496 (1) (181 SE2d 340) (1971). Accord, Dukes v. Joyner, 234 Ga. 526 (1) (216 SE2d 822) (1975). We see no reason why section 52 (a) should be held inapplicable here, particularly since we have previously held that the superior court must make an evidentiary determination as to whether the appellants are "aggrieved parties" entitled to take an appeal (Royal Atlanta Development Corp. v. Staffieri, 135 Ga. App. 528 (2) (218 SE2d 250) (1975) (revd. other grounds 236 Ga. 143 (223 SE2d 128) (1976)), which was not done here.

We remand the appeal with direction that the superior court vacate the judgment, cause appropriate findings of fact and conclusions of law to be made, and enter a new judgment thereon, after which the losing party shall be free to enter another appeal. Liberty Mut. Ins. Co. v. Alsco Const. Co., 139 Ga. App. 786 (229 SE2d 559) (1976) and cits.

Appeal remanded with direction. Deen, P. J., and Marshall, J., concur.