Moore v. First Nat. Bank of Atlanta

• Court: Georgia Court of Appeals
• Writing for the Court: QUILLIAN
• Citation: Moore v. First Nat. Bank of Atlanta, 233 S.E.2d 26, 141 Ga.App. 164 (Ga. App. 1977)
• Decision Date: 31 January 1977
• Docket Number: No. 53326,No. 2,53326,2
• Parties: Kathleen MOORE v. FIRST NATIONAL BANK OF ATLANTA

Page 26

233 S.E.2d 26

141 Ga.App. 164

Kathleen MOORE v. FIRST NATIONAL BANK OF ATLANTA.

No. 53326.

Court of Appeals of Georgia, Division No. 2.

Jan. 31, 1977.

Kathleen Moore, pro se.

Maley & Crowe, Ronald F. Johnson, Atlanta, for appellee.

QUILLIAN, Presiding Judge.

The plaintiff's complaint sought recovery on the unpaid balance due on a sales contract for a used automobile. The defendant by answer denied the material allegations of the complaint and plead accord and satisfaction and that the plaintiff failed to mitigate damages. On demand by the defendant, the case was tried by a jury.

Defendant appeals from the judgment rendered on the jury verdict in favor of the plaintiff. Two grounds are contained in the enumeration of errors: 1) the court erred in not dismissing the plaintiff's original complaint; 2) the court erred in that it did not make a finding of fact and conclusion of law in the case. Held:

1. Insofar as the first ground raises a question as to the sufficiency of service of process, there was a waiver by the failure to object in the lower court. CPA § 12(b) and (h) (Code Ann. § 81A-112(b) and (h); Ga.L.1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693); American Finance Co. v. First National Bank in Newnan, 135 Ga.App. 24, 217 S.E.2d 364; Pascoe Steel Corp. v. Turner County Board of Education, 139 Ga.App. 87, 89, 227 S.E.2d 887. See Echols v. Dyches, 140 Ga.App. 191, 230 S.E.2d 315. For pertinent cases prior to the Civil Practice Act, see Cherry v. McCutchen, 68 Ga.App. 682, 689(1), 23 S.E.2d 587; Talbott & Sons v. Collier, 102 Ga. 550(2), 28 S.E. 225; Cutliffe v. Pryse, 187 Ga. 51, 54, 200 S.E. 124; Chance v. Planters, etc., Cooperative, 219 Ga. 1, 131 S.E.2d 541.

2. Since the case was tried before a jury, findings of fact and conclusions of law under CPA § 52 (Code Ann. § 81A-152; Ga.L.1969, pp. 645, 646; 1970, pp. 170, 171) were not required. Thomas v. Jackson, 238 Ga. 90, 92(1), 231 S.E.2d 50.

Judgment affirmed.

STOLZ and SHULMAN, JJ., concur.