1. Ordinarily we would not consider deciding an enumeration of error upon the trial court's sustaining of a motion for judgment notwithstanding the verdict in the absence of a transcript of the proceedings, including the evidence. Berrien v. Avco Financial Services, 127 Ga. App. 584 ( 194 S.E.2d 337). Here, however, the facts as to a defense set up by the defendant appellee have been determined adverse to him by a special finding of the jury upon a conflict of testimony recited in the trial judge's order, and the trial judge granted the motion for judgment notwithstanding the verdict based on a matter of law, irrespective of the finding.
Further, no such attacks here appear from the record; and no transcript of the hearing where the writ of possession was issued has been forwarded to this court to show what occurred in the trial court with reference to the order issued and here appealed. See Berrien v. Avco Fin. Ser., Inc., 127 Ga. App. 584, 585 (1) ( 194 S.E.2d 337); Gainesville Liquidation, Inc. v. Hanley, 134 Ga. App. 472, 473 (2) ( 214 S.E.2d 723); Ward v. National Dairy Prod. Corp., 224 Ga. 241, 242 (2) ( 161 S.E.2d 305). This court cannot hold that the trial court erred in granting the writ of possession.
We cannot hold, without examination of the transcript, that the conclusion of law is in irreconcilable conflict with the findings of fact. See Ward v. National Dairy Products Corp., 224 Ga. 241 (1, 2) ( 161 S.E.2d 305); Berrien v. AVCO Fin. Ser., Inc., 127 Ga. App. 584, 585 ( 194 S.E.2d 337). See also Martin v. Dept. of Public Safety, 226 Ga. 723 (3) ( 177 S.E.2d 243).
In the absence of the transcript of the evidence a finding of fact by the court based upon evidence and the resulting judgment therefrom must be affirmed by this court. See Ward v. Nat. Dairy Products Corp., 224 Ga. 241 (1, 2) ( 161 S.E.2d 305); Martin v. Dept. of Public Safety, 226 Ga. 723 (3) ( 177 S.E.2d 243); Berrien v. AVCO Financial Services, 127 Ga. App. 584 (1) ( 194 S.E.2d 337). I therefore respectfully dissent to the direction that the assessed attorney fees against appellant be stricken.
We do not have a transcript of evidence, as we have previously pointed out, and what the trial judge was doing here was to decide, under his conclusions of law and findings of fact, that plaintiff, not defendant, was entitled to prevail. Ward v. Nat. Dairy c. Corp., 224 Ga. 241 (1, 2) ( 161 S.E.2d 305); Berrien v. Avco Financial Services, Inc., 127 Ga. App. 584, 585 (1) ( 194 S.E.2d 337). Judgment affirmed. Pannell, P. J., and Marshall, J., concur.
2. In the absence of a transcript of evidence, this court must assume the evidence was sufficient to support the judgment and affirm it. Berrien v. Avco Financial Services, 127 Ga. App. 584 ( 194 S.E.2d 337); Ward v. National Dairy Products Corp., 224 Ga. 241 (2) ( 161 S.E.2d 305). 3. The lower court did not err in issuing the writ of possession, leaving at issue the counterclaim and the subsequent questions of discovery and trial as to that claim.
3. The other two enumerations of error complain that the evidence does not support the judgment and the attorney fees awarded were excessive. Without the transcript, there is simply nothing to review. Seaton v. Redisco, Inc., 115 Ga. App. 80 ( 153 S.E.2d 728); Berrien v. Avco Financial Services, 127 Ga. App. 584 (1) ( 194 S.E.2d 337). In such cases it is presumed that there was sufficient evidence before the trial judge to authorize his findings.