Lavender v. Myers

Quillian, Presiding Judge. This is a suit on account with a denial and counterclaim on account by the defendant. The action was heard by a judge without a jury. Our Code Ann. § 81A-152 (CPA § 52; Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171) requires findings of fact and conclusions of law in this setting. The trial court’s judgment was: "The Plaintiff has rendered legal services to the Defendant and the reasonable value for said services was proved in the amount of. .. ($474.00); and .. . The Defendant rendered medical services to the Plaintiff.. . said medical services reasonable value was proved at . . . ($275.00); and the services, charges and other considerations are mutually offsetting.” Judgment was entered for the defendant and the action was dismissed with defendant to recover costs of the action from plaintiff. Although the findings of fact and conclusion of law were not so labeled by the court, we determine compliance with statutory law by content and not by nomenclature. See Deen v. State, 216 Ga. 387 (2) (116 SE2d 595). The content of the judgment reveals findings of fact that the plaintiff and defendant established the value of services rendered to each other and the conclusion of law followed that they were mutually offsetting. The plaintiff has enumerated but one error on appeal. [548] That is: "The conclusion of law and judgment of the trial court is contrary to law and is in irreconcilable conflict with it’s findings of fact.” Thus, plaintiff does not complain about the form of the judgment and its compliance with Code Ann. § 81A-152. In Northside Realty Associates v. Peachtree Mtg. Corp., 239 Ga. 62, 63 (235 SE2d 491), the Supreme Court stated: "... 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 SE2d 668) (1976); Cunnane v. Cunnane, 237 Ga. 650 (229 SE2d 431) (1976).” Accordingly, as the format of the judgment has not been attacked it has been waived. Submitted April 11, 1979 Decided July 3, 1979. Lavender, Collar & Yates, Gary R. Yates, for appellant. Chamberlin, Tew & Blount, Ernest D. Blount, for appellee. Plaintiff failed to file a transcript of the evidence and proceedings of the trial. Absent a transcript of the evidence "we must presume the evidence considered by the trial court supports the ruling made.” Pennsylvania Poorboy v. Robbins Restaurant, 238 Ga. 539 (233 SE2d 791). However, even though the findings of fact must be supported on appeal, we cannot agree with the trial court that, as a matter of law, $474 is the mathematical equivalent of, or is mutually offsetting with $275. Therefore, we reverse and remand for conclusions of law which are consistent with the findings of fact. Judgment reversed and remanded. Deen, C. J., Smith, Banke, Birdsong, Underwood and Carley, JJ., concur. McMurray, P. J., dissents. Shulman, J., not participating.