Northside Realty Associates, Inc. v. Peachtree Mortgage Corporation.

• Decision Date: 27 April 1977
• Docket Number: No. 32004,32004
• Parties: NORTHSIDE REALTY ASSOCIATES, INC. v. PEACHTREE MORTGAGE CORPORATION.
• Court: Georgia Supreme Court

Page 491

235 S.E.2d 491

239 Ga. 62

NORTHSIDE REALTY ASSOCIATES, INC. v. PEACHTREE MORTGAGE CORPORATION.

No. 32004.

Supreme Court of Georgia.

April 27, 1977.

Rehearings Denied May 11 and May 26, 1977.

Gambrell, Russell, Killorin & Forbes, Harold L. Russell, Douglas N. Campbell, Atlanta, for appellant.

Dodd, Driver, McClatchey & Connell, H. Boyce Connell Jr., Ellwood F. Oakley, III, Atlanta, for appellee.

JORDAN, Justice.

This court granted certiorari to review the first division of the opinion of the Court of Appeals in Peachtree Mtg. v. Northside Realty, 140 Ga.App. 541, 542, 231 S.E.2d 350 (1976). This division deals with the time allowed for appeal where a judge entered a judgment dismissing a complaint, without making the findings of fact and conclusions of law required by Code Ann. § 81A-152(a) (Ga.L.1969, pp. 645, 646; 1970, pp. 170, 171), and by subsequent order made such findings of fact and conclusions of law.

Judgment was entered on December 3, 1975, by the trial judge dismissing the complaint of Peachtree Mortgage after hearing the plaintiff's evidence (without a jury). On December 29, 1975, the judge filed findings of fact and conclusions of law, concluding the order with another judgment of dismissal. The former judgment was not vacated. Peachtree Mortgage filed a motion for new trial, which was marked by the clerk as filed on January 5, 1976. Northside Realty moved to dismiss the motion for new trial as not being timely filed. Dismissal of the motion for untimely filing was denied, but the motion was denied on its merits. Peachtree Mortgage appealed to the Court of Appeals from the denial of its motion for new trial. Northside Realty asserted that the appeal should be dismissed because the motion for new trial was not timely filed and did not toll the time for filing the notice of appeal.

The Court of Appeals, after citing and commenting on several decisions of this court and the Court of Appeals, held: "Accordingly, the judgment was final when dated and filed on December 3, 1975. Thereafter, when findings of fact and conclusions of law were completed and signed on the 23rd day of December, 1975, and filed in the clerk's office on the 29th day of December, 1975, it became a new judgment. Consequently, the motion for new trial and rule nisi dated 2nd day of January 1976, and filed on January 5, 1976, following the amendment to the judgment of December 3, 1975, on December 29, 1975, was not subject to dismissal because it was filed over 30 days after the final judgment. For the same reason the court did not err in denying defendant's motion to dismiss the motion for new trial which is the subject matter of the cross appeal."

The recent decision of the Court of Appeals in W. T. A. Associates v. Beamon, 141 Ga.App. 25, 232 S.E.2d 373 (1977), indicates a view contrary to the ruling in Peachtree Mtg. v. Northside Realty, supra.

This court has not decided the specific issue made in the present case.

We have, in effect, held that a judgment is not void because of the omission of findings of fact and conclusions of law. For instance, this court has held that where the appellant does not enumerate as error the failure to include findings of fact and conclusions of law in a judgment, the failure is not a reversible error. Jardine v. Jardine, 236 Ga. 323(1), 223 S.E.2d 668 (1976); Cunnane v. Cunnane, 237 Ga. 650, 229 S.E.2d 431 (1976).

Where error was enumerated on the failure to comply with Code Ann. § 81A-152, this court has handled the cases in different ways. In some cases we have considered findings of fact and conclusions of law made subsequently to the order appealed from and transmitted to this court. Jacobs Pharmacy Co. v. Richards etc., Inc., 229 Ga. 156, 157(1), 189 S.E.2d 853 (1972); Atlanta Country Club v. Sanders, 230 Ga. 146, 148(1), 195 S.E.2d 893 (1973); Warren v. Walton, 231 Ga. 495, 500(2), 202 S.E.2d 405 (1973).

In other cases, while the case was pending in this court we have requested the trial judge to make findings of fact and conclusions of law and file them in the trial court clerk's office, to be transmitted to this court. Walker v. Walker, 238 Ga. 273, 274(2), 232 S.E.2d 554 (1977); Barger v. Barger, 238 Ga. 334(2), 232 S.E.2d 567 (1977).

In other cases, we have reversed the judgment and remanded the case for the entry of a new judgment which will include findings of fact and conclusions of law, with the right of appeal from that judgment. Dixie-Land Iron v. Piedmont Iron, 233 Ga. 970, 213 S.E.2d 897 (1975); Sanders v. Darnell, 236 Ga. 604, 225 S.E.2d 23 (1976); Brown v. Brown, 237 Ga. 201, 227 S.E.2d 360 (1976); Motes v. Stanton, 237 Ga. 440, 228 S.E.2d 831 (1976); Mullis v. Mullis, 238 Ga. 185, 232 S.E.2d 60 (1977).

The Court of Appeals in the present case found that the rulings in cases in that court requiring the entry of a new judgment after remand led to the conclusion that where findings of fact and conclusions of law were filed subsequently to the...