Smith v. Public Storage, Inc.

163 Ga. App. 455 (1982)

294 S.E.2d 685

SMITH v. PUBLIC STORAGE, INC.

64526.

Court of Appeals of Georgia.

Decided September 10, 1982.

Theodore E. Smith. pro se.

Charles V. Choyce, Jr., for appellee.

QUILLIAN, Chief Judge.

This appeal was brought from the entry of a dispossessory warrant against the appellant and the award of monetary damages to the appellee by the State Court of Fulton County. Held:

1. The cause was tried without a jury and the first enumeration of error complains of the failure to enter findings of fact and conclusions of law. A review of this record reveals that no findings of fact were made and that there was no waiver by appellant. Under the facts here, Code Ann. § 81A-152 (Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171), requires that the trial judge "set forth findings of fact and conclusions of law. "See Smith v. Mack, 161 Ga. App. 95 (289 SE2d 299). See also Shelor v. Shelor, 139 Ga. App. 11 (228 SE2d 18).

Because no facts were recited in the order, this case does not fall within the vacillating exception regarding the mandatory aspects of the requirements of Code Ann. § 81A-152 as espoused by our Supreme Court, which exception first found expression in Faucette v. Faucette, 228 Ga. 201 (184 SE2d 586) and Collins v. Collins, 231 Ga. 683 (1) (203 SE2d 524), was subsequently rejected and disapproved in Doyal Development Co. v. Blair, 234 Ga. 261 (215 SE2d 471), and was then revived in part by that court in Paxton v. Trust Co. Bank, 245 Ga. 834 (1) (268 SE2d 154), holding that a substantial compliance with the Code Section was sufficient.

The appeal is therefore remanded with direction that the judgment be vacated, and that the trial judge enter a new judgment containing appropriate findings of fact and conclusions of law. Wojcik Constr. Co. v. Schell's Concrete Co., 153 Ga. App. 793, 794 (266 SE2d 569). The losing party thereupon shall be free to enter an appeal.

Appeal remanded with direction. Shulman, P. J., and Carley, J., concur.