King v. Chrisler

Pope, Judge. Chrisler owned certain property in DeKalb County which he leased to King. Chrisler filed this action against King for a writ of possession and recovery of past due rental payments as per their lease agreement. King filed a timely answer to the complaint. After both parties had presented their evidence at trial, the trial court directed a [785] verdict and entered judgment in favor of Chrisler for a writ of possession and in the amount of $3,044.00. Decided January 5, 1982. William L. King, pro se. W. Courtney LaEon, for appellee. 1. King first enumerates as error the trial court’s failure to make findings of fact and conclusions of law as required by Code Ann. § 81 A-152. However, that section of the Civil Practice Act applies only to actions tried upon the facts without a jury. The grant of a motion for directed verdict does not create a non-jury trial. “In the case before us the trial was before a jury, not the court without a jury.... Thus, § 81A-152 (a) is not applicable and the court did not err in failing to make findings of fact and conclusions of law.” Thomas v. Jackson, 238 Ga. 90, 92 (231 SE2d 50) (1976). 2. King also enumerates as error the trial court’s failure to find the proceedings were a nullity because the summons did not include the default date as required by Code Ann. § 61-303. However, the record shows that such notice was provided in the return of service located on the back of the summons. “While better practice would be to include the statement required by Code Ann. § 61-303 within the main paragraph of the summons, the placing of the date on the back did not constitute a failure to comply with Code Ann. § 61-303 so as to void the summons.” Woodruff v. B-X Corp., 154 Ga. App. 197 (1) (267 SE2d 757) (1980). In any event, King has waived any defects in the process because this matter was not raised until well after King had filed his responsive pleadings. King v. Ellis, 146 Ga. App. 157 (1b) (246 SE2d 1) (1978). 3. We find that this appeal was taken for delay only and the clerk is directed to enter 10 percent damages upon the remittitur. Code Ann. § 6-1801. Judgment affirmed with direction. Quillian, C. J., and McMurray, P. J., concur.