Doyal Development Co., Inc. v. Blair

• Decision Date: 29 April 1975
• Docket Number: No. 29717,29717
• Citation: 234 Ga. 261,215 S.E.2d 471
• Parties: DOTAL DEVELOPMENT COMPANY, INC. v. Ed T. BLAIR.
• Court: Georgia Supreme Court

Page 471

215 S.E.2d 471

234 Ga. 261

DOTAL DEVELOPMENT COMPANY, INC. v. Ed T. BLAIR.

No. 29717.

Supreme Court of Georgia.

April 29, 1975.

Rolader, Barham, Davis, Graham & McEvoy, D. W. Rolader, Atlanta, for appellant.

McHaney & Lynn, Robert, L. McHaney, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

In our opinion findings of fact and conclusions of law required by Code Ann. § 81A-152(a) are mandatory. Ga.L.1969, pp. 645, 646; 1970, pp. 170, 171. Statements to the contrary appearing in Faucette v. Faucette, 228 Ga. 201, 184 S.E.2d 586 and Collins v. Collins, 231 Ga. 683(1), 203 S.E.2d 524 and disapproved. The conclusions of law entered nunc pro tunc by the trial court were not considered by the Court of Appeals and are not considered here. See Jacobs Pharmacy Co., Inc. v. Richard & Associates, inc., 229 Ga. 156(1), 189 S.E.2d 853; Warren v. Walton, 231 Ga. 495, 500(2), 202 S.E.2d 405.

Judgment reversed.

All the Justices concur except NICHOLS, C.J., and UNDERCOFLER, P.J., who dissent.

GUNTER, Justice (concurring).

The Civil Practice Act was enacted by the General Assembly in 1966 and Became effective September 1, 1967. Title 81A, Ga. Code Annotated. The Civil Practice Act 'governs the procedure in all courts of record of the State of Georgia in all suits of a civil nature whether cognizable as cases at law or in equity, with the exception stated in Sec. 81A-181. The provisions of this Title shall construed to secure the just, speedy, and inexpensive determination of every action.' Ga.Code Ann. 81A-101.

It is my view that the General Assembly had the power to enact the Civil Practice Act. That power is derived from the provision in the Georgia Constitution which says: 'Except as otherwise provided in this Constitution, the jurisdiction, powers, proceedings and practice of all courts or officers invested with judicial powers (except City Courts) of the same grade or class, so far as regulated by law, and the force and effect of the process, judgment, and decree, by such courts, severally, shall be uniform. The uniformity must be established by the General Assembly, and in the case of City Courts, may be established by the General Assembly.' Ga.Code Ann. Sec. 2-4401, Const. art. VI, § IX, par. 1.

Code Ann. Sec. 81A-152(a) provides that in all civil actions tried upon the facts without a jury, which certain exceptions, 'the court shall find the facts specially and state separately its conclusions of law thereon and judgment shall be entered pursuant to section 81A-158; and in granting or refusing interlocutory injunction the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action.'

It is my view that this is a rule of procedure for certain types of cases in the trial courts, and that the uniformity of such procedure must (or may) be established by the General Assembly. Code Ann. Sec. 2-4401. The Constitution confers this power upon the General Assembly, and the constitutional separation of powers' principle, in my opinion, in no way offends or militates against this delegated power.

I concur in the judgment of the court.

I am authorized to state that Justices INGRAM and HALL also concur.

UNDERCOFLER, Presiding Justice (dissenting).

The majority construction that Code Ann. § 81A-152(a) is mandatory conflicts with the principle announced in CTC Finance Corporation v. Holden, 221 Ga. 809, 147 S.E.2d 427. That case construed Georgia Laws 1959, pp. 353, 354 (Code Ann. § 6-1608) relating to the first grant of a new trial and which provided: '. . . that the trial judge shall state in all cases the ground or grounds upon which said new trial is granted . . .' (Emphasis supplied.) In holding that this provision is directory and not mandatory this court said: 'The Constitution, Art. VI, Sec. IV, Par. VI (Constitution of 1945; Code Ann. § 2-3906) confers unqualified power upon superior and city courts, not the legislature, to grant new trials. Art. I, Sec. I, Par. XXIII, of the Constitution (Constitution of 1945; Code Ann. § 2-123) requires that 'legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.' These constitutional clauses constitute insuperable barriers to any legislative control or interference with the courts in the exercise of their powers to grant new trials. If the legislature can qualify and restrict the power of the courts as it appears to have undertaken by ...