Touchton v. Stewart, 27236
| Decision Date | 28 June 1972 |
| Docket Number | No. 27236,27236 |
| Citation | 190 S.E.2d 912,229 Ga. 303 |
| Parties | A. W. TOUCHTON v. George D. STEWART et al. |
| Court | Georgia Supreme Court |
A. W. Touchton, pro se.
J. Laddie Boatright, Douglas, Frank E. Blankenship, Atlanta, for appellees.
Syllabus Opinion by the Court
The controlling question presented by this appeal is whether the trial court erred in dismissing the complaint of the appellant without notice that the case was on the trial calendar as required by Code Ann. § 81A-140(c) (Ga.L.1966, pp. 609, 653; 1967, pp. 226, 245).
The trial court's order states: 'The within case having been placed on the calendar for the February term 1972 of the Superior Court of Echols County and same having been called for trial on February 7th, 1972, and at the regular February term 1972 of said court and no one having answered for either party and no continuance having been requested, said action, including all cross actions are hereby dismissed with prejudice.' The appeal is from this judgment. Held:
The appellant argues in his brief that it was error for this case to be placed on the trial court calendar without notice to him under the provisions of Code Ann. § 81A-140(c). The record does not show whether notice was given to the appellant. The appellee in his brief states that he received notice that the case was on the calendar for February 7, 1972.
There is a presumption in favor of the regularity and legality of all proceedings in the superior court. Code § 38-114; Johnson v. State, 27 Ga.App. 679, 681, 109 S.E. 526. See Bible v. Marra, 226 Ga. 154, 159, 173 S.E.2d 346.
Since this presumption of law cannot be rebutted by a direct appeal in this case involving an issue of fact which has not been judicially determined by the trial court, the contention of the appellant is without merit. See in this connection Wilkes v. Ricks, 126 Ga.App. 266, 190 S.E.2d 603.
Judgment affirmed.
All the Justices concur.
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...in fact preside over a hearing on the merits of this case as indicated by the opening statement of his judgment. Touchton v. Stewart, 229 Ga. 303, 190 S.E.2d 912 (1972); Code Ann. § 38-114. Because a jury trial was not required in this case, the trial judge was free to hear and decide the m......
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