Logan v. Johnson , 162 Ga. App. 777 ( 1982 )

162 Ga. App. 777 (1982) 293 S.E.2d 47

LOGAN
v.
JOHNSON et al.

63876.

Court of Appeals of Georgia.

Decided June 30, 1982.

Charles O. Logan, pro se.

Thomas R. Burnside, Jr., for appellees.

SHULMAN, Presiding Judge.

This appeal emanates from an action brought by appellant Logan pursuant to 42 USCA § 1983 and Code Ann. § 34-1704, alleging that appellee election officials of Warren County had committed civil rights violations. The trial court denied appellant's election contest petition, and the Supreme Court dismissed his appeal from that judgment as moot. Logan v. Johnson, 247 Ga. 640 (277 SE2d 913). The present appeal is from the further finding of the trial court that appellees reasonably incurred out-of-pocket expenditures and costs of litigation in the amount of $147.80, as well as reasonable attorney fees of $2,448, all of which the appellees were entitled to recover from appellant under the applicable provisions of 42 USCA § 1988. Appellant asks this court, without benefit of transcripts of either the trial or the evidentiary hearing conducted on appellees' motion to assess attorney fees, to reverse this ruling on the ground that there was no evidence of "vexatious, frivolous or groundless litigation" so as to warrant assessment of attorney fees.

The trial court's order in fact does recite that appellant's allegations of unconstitutional civil rights violations were frivolous, unfounded and not supported by the evidence. In any action to enforce 42 USCA § 1983, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fees as part of the costs." 42 USCA § 1988. The provisions of this section are applicable to state courts and the trial judge had discretion to award attorney fees. Thiboutot v. State, 405 A2d 230 (Me. 1979); affd. 448 U.S. 1 (100 SC 2502, 65 LE2d 555). We must presume, from the failure of appellant to affirmatively show error by the record, that there was sufficient evidence before the trial court to support its findings of fact and judgment. McRae v. Smith, 159 Ga. App. 19 (282 SE2d 676); Brown v. Capitol Fish Co., 159 Ga. App. 45 (282 SE2d 694).

Judgment affirmed. Quillian, C. J., and Carley, J., concur.