Opinion
28585.
SUBMITTED JANUARY 17, 1974.
DECIDED MARCH 7, 1974. REHEARING DENIED MARCH 21, 1974.
Divorce. Gwinnett Superior Court. Before Judge Pittard.
James H. Easterling, Pro se, Robert D. Brooks, for appellant.
Joseph E. Cheeley, for appellee.
In the divorce action of Louise Cash Easterling against James Hardy Easterling, judgment and decree was entered in favor of the wife for divorce, monthly alimony payments, attorney fees, and described property. The judgment and decree recites that: "Upon consideration of the above entitled case, it appearing that defense has been filed and dismissed on motion, defendant having failed to appear — upon evidence submitted to the court to sustain the allegations of the petition, it is the judgment of the court that a total divorce be granted between the parties; etc." The husband appeals from this judgment.
1. The appellant contends that the court erred in dismissing his defensive pleading on the oral motion of the appellee. Code § 81A-107 (b) (1) (Ga. L. 1966, pp. 609, 618; Ga. L. 1967, pp. 226, 230) provides that motions shall be made in writing, "unless made during a hearing or trial." The motion to dismiss the appellant's defensive pleading apparently was made at the trial of the case, where it could be made orally.
2. The appellant asserts that the court erred in proceeding to trial without a jury. There is no merit in this contention since the appellant failed to appear for trial.
3. The appellant asserts that the court erred in failing to put him on notice of the trial date of his case. The record does not show whether notice was given to the appellant. The appellee, in her brief, states that notice was given to the attorney who was representing the appellant at that time.
There is a presumption in favor of the regularity and legality of all proceedings in the superior court. This presumption of law cannot be rebutted by a direct appeal involving an issue of fact which has not been judicially determined by the trial court Touchton v. Stewart, 229 Ga. 303 ( 190 S.E.2d 912).
Judgment affirmed, All the Justices concur, except Gunter and Ingram, JJ., who dissent.