McKnight v. Mitchell, 53930
| Citation | 235 S.E.2d 763,142 Ga.App. 344 |
| Decision Date | 19 May 1977 |
| Docket Number | No. 53930,No. 3,53930,3 |
| Parties | Paul R. McKNIGHT v. Willis MITCHELL et al |
| Court | United States Court of Appeals (Georgia) |
Mathews, Knight, Jones & MacNabb, Joseph P. MacNabb, Newnan, for appellant.
Elliott & Turner, Tyron C. Elliott, Manchester, for appellees.
This is an appeal from an order of the superior court "affirming" a decision of the county board of zoning 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 S.E.2d 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, 497(1), 181 S.E.2d 340 (1971). Accord: Dukes v. Joyner, 234 Ga. 526(1), 216 S.E.2d 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, 530(2), 218 S.E.2d 250 (1975) (rev'd other grounds 236 Ga. 143, 223 S.E.2d 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 Mutual Ins. Co. v. Alsco Construction Co., 139 Ga.App. 786, 229 S.E.2d 559 (1976) and authorities cited.
Appeal remanded with direction.
To continue reading
Request your trial
-
Hall County Bd. of Tax Assessors v. Reed, s. 54028-54030
...to all such proceedings." Code Ann. § 81A-181. See Gresham v. Symmers, 227 Ga. 616, 617(2), 182 S.E.2d 764 (1971); McKnight v. Mitchell, 142 Ga.App. 344, 235 S.E.2d 763 (1977). Thus we must assume that an appeal to the superior court from a county tax assessment brought under Code Ann. § 92......
- Little v. State, 53886
-
McKnight v. Mitchell
...in the judgment. Judgment affirmed with direction. DEEN, P. J., and BIRDSONG, J., concur. 1 Previously we remanded this case (142 Ga.App. 344, 235 S.E.2d 763 (1977)) with direction that the superior court vacate the judgment, cause appropriate findings of fact and conclusions of law to be m......
-
Stanley v. Department of Human Resources, 55994
...by the board are supported by 'any evidence.' " Hall v. Ault, 240 Ga. 585, 586, 242 S.E.2d 101, 102 (1978). Cf. McKnight v. Mitchell, 142 Ga.App. 344, 235 S.E.2d 763 (1977). The superior court judge is " circumscribed by the 'any evidence' rule and is not to substitute his judgment for that......