Opinion
64526.
DECIDED SEPTEMBER 10, 1982.
Dispossessory warrant. Fulton State Court. Before Judge Langham.
Theodore E. Smith. pro se. Charles V. Choyce, Jr., for appellee.
This appeal was brought from the entry of a dispossessory warrant against the appellant and the award of monetary damages to the appellee by the State Court of Fulton County. Held:
1. The cause was tried without a jury and the first enumeration of error complains of the failure to enter findings of fact and conclusions of law. A review of this record reveals that no findings of fact were made and that there was no waiver by appellant. Under the facts here, Code Ann. § 81A-152 (Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171), requires that the trial judge "set forth findings of fact and conclusions of law. "See Smith v. Mack, 161 Ga. App. 95 ( 289 S.E.2d 299). See also Shelor v. Shelor, 139 Ga. App. 11 ( 228 S.E.2d 18).
Because no facts were recited in the order, this case does not fall within the vacillating exception regarding the mandatory aspects of the requirements of Code Ann. § 81A-152 as espoused by our Supreme Court, which exception first found expression in Faucette v. Faucette, 228 Ga. 201 ( 184 S.E.2d 586) and Collins v. Collins, 231 Ga. 683 (1) ( 203 S.E.2d 524), was subsequently rejected and disapproved in Doyal Development Co. v. Blair, 234 Ga. 261 ( 215 S.E.2d 471), and was then revived in part by that court in Paxton v. Trust Co. Bank, 245 Ga. 834 (1) ( 268 S.E.2d 154), holding that a substantial compliance with the Code Section was sufficient.
The appeal is therefore remanded with direction that the judgment be vacated, and that the trial judge enter a new judgment containing appropriate findings of fact and conclusions of law. Wojcik Constr. Co. v. Schell's Concrete Co., 153 Ga. App. 793, 794 ( 266 S.E.2d 569). The losing party thereupon shall be free to enter an appeal.
Appeal remanded with direction. Shulman, P. J., and Carley, J., concur.