SOUTHWEST GEORGIA LAND DEVELOPMENT COMPANY INC. v. Hillas

144 Ga. App. 670 (1978)

242 S.E.2d 267

SOUTHWEST GEORGIA LAND DEVELOPMENT COMPANY INC. et al. v. HILLAS et al.

54543.

Court of Appeals of Georgia.

Argued September 16, 1977.

Decided January 9, 1978.

Rehearing Denied February 2, 1978.

Leonard E. Smith, Marion K. Smith, C. B. King, for appellants.

Hansell, Post, Brandon & Dorsey, Lowell H. Hughen, W. Dent Acree, Thomas E. Prior, Watson, Spence, Lowe & Chambless, E. Dunn Stapleton, for appellees.

QUILLIAN, Presiding Judge.

An order confirming a foreclosure sale under a deed to secure debt is the subject of the instant appeal. Appellants, who opposed the confirmation, urge two enumerations of error: (1) the court erred in failing to exercise its duty or discretion in determining whether there was an actual default on which the foreclosure was based; (2) the court erred in failing to sustain appellants' motion for dismissal on the ground that appellees failed to prove that the promissory note and deed to secure debt had been transferred from USF Investors to appellees. Held:

1. On appeal it is argued that the trial court erred in sustaining appellees' objection to testimony regarding the matter of default.

"[A]n exception to the refusal to allow a witness, on the direct examination, to answer a question will not be considered by the reviewing court unless it affirmatively appears that the trial judge was notified at the time of the ruling what answer was expected from the witness..." Gordon v. Foundation Co., 25 Ga. App. 309 (103 SE 269). Accord, Floyd v. Colonial Stores, Inc., 121 Ga. App. 852, 860 (2) (176 SE2d 111); Jackson v. Sanders, 199 Ga. 222, 231 (11) (33 SE2d 711). At the time the trial judge ruled, appellants did not perfect the record.

With regard to whether a default occurred this court has held such matter not to be germane in confirmation proceedings (Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490, 491 (231 SE2d 491); Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882, 884 (237 SE2d 198); Peachtree Mtg. Corp. v. First Nat. Bank, 143 Ga. App. 17 (2) (237 SE2d 416)) despite the Supreme Court's consideration of this issue in National Community Builders, Inc. v. C. & S. Nat. Bank, 232 Ga. 594 (207 SE2d 510).

The first enumeration of error is meritless.

2. The appellants in their response to the application for confirmation admitted the allegations that Independence Mortgage Trust (of which the appellees are *671 trustees) was the successor and holder of the promissory note and deed to secure debt of USF Investors. The second enumeration of error is without merit.

Judgment affirmed. Shulman and Banke, JJ., concur.