Berrien v. Avco Financial Services, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: EVANS; BELL, C.J., and STOLZ
• Citation: Berrien v. Avco Financial Services, Inc., 194 S.E.2d 337, 127 Ga.App. 584 (Ga. App. 1972)
• Decision Date: 13 October 1972
• Docket Number: No. 1,No. 47349,47349,1
• Parties: Booker T. BERRIEN, Sr. v. AVCO FINANCIAL SERVICES, INC

Page 337

194 S.E.2d 337

127 Ga.App. 584

Booker T. BERRIEN, Sr. v. AVCO FINANCIAL SERVICES, INC.

No. 47349.

Court of Appeals of Georgia, Division No. 1.

Oct. 13, 1972.

Rehearing Denied Nov. 17, 1972.

David A. Webster, Archie Bearden, Alden C. Harrington, Atlanta, for appellant.

Marvin P. Nodvin, Ira S. Zuckerman, Atlanta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Avco Financial Services, Inc. sued Booker T. Berrien, Sr. on a promissory note seeking principal, interest and attorneys fees. The defendant answered; admitted only that he was the party sued; and denied all the other allegations of the complaint. In addition, he filed five defenses and a counterclaim. Thereafter, the lower court struck each of the defenses and entered summary judgment in favor of the plaintiff. Defendant appealed, and in Berrien v. Avco Financial Services, Inc., 123 Ga.App. 862, 182 S.E.2d 708, this court held that the trial court did not err in striking the first, second and fifth defenses, but that it was error to strike the third and fourth defenses and enter a summary judgment in favor of the plaintiff. Upon return of the remittitur to the lower court, the case proceeded to trial, without the intervention of a jury, and after hearing evidence the court ruled that a prima facie case was made out by the plaintiff, and that no evidence was presented by the defendant. It then rendered judgment in favor of the plaintiff against the defendant for principal, accrued interest and attorneys fees. Appeal is from that final judgment.

The final judgment was dated February 9, 1972. An appeal was filed for record on March 10, 1972. On the 11th day of April, 1972, plaintiff filed a motion to dismiss the appeal of the defendant because no transcript of the evidence had been filed, nor had the defendant applied to the trial judge for extension of time to file the transcript. Thereafter, on the 11th day of May, 1972, the trial judge ordered the Clerk of Court to send up the record without the transcript, based upon the fact that counsel for defendant had stated in open court that he was willing to prosecute the appeal without benefit of the transcript; thus refusing to dismiss the appeal. Held:

1. The third defense alleges that defendant was charged amounts for life, health and accident insurance which were unauthorized and unreasonable; and the fourth defense alleges that fees and interest were illegally charged on the proceeds of the loan, which fees and interest the company retained in payment of a prior loan made less than six months previously, in violation of the law. In addition, the defendant denied all the allegations of the complaint except that he was the defendant in this case. The defendant enumerates as error the refusal to grant judgment in his favor on the ground...