Moore v. First National Bank of Atlanta , 141 Ga. App. 164 ( 1977 )

141 Ga. App. 164 (1977) 233 S.E.2d 26

MOORE
v.
FIRST NATIONAL BANK OF ATLANTA.

53326.

Court of Appeals of Georgia.

Argued January 12, 1977. Decided January 31, 1977.

Kathleen Moore, pro se.

Maley & Crowe, Ronald F. Johnson, for appellee.

QUILLIAN, Presiding Judge.

The plaintiff's complaint sought recovery on the unpaid balance due on a sales contract for a used automobile. The defendant by answer denied the material allegations of the complaint and plead accord and satisfaction and that the plaintiff failed to mitigate damages. On demand by the defendant, the case was tried by a jury.

Defendant appeals from the judgment rendered on the jury verdict in favor of the plaintiff. Two grounds are contained in the enumeration of errors: (1) the court erred in not dismissing the plaintiff's original complaint; (2) the court erred in that it did not make a finding of fact and conclusion of law in the case. Held:

1. Insofar as the first ground raises a question as to the sufficiency of service of process, there was a waiver by the failure to object in the lower court. CPA § 12 (b) and (h) (Code Ann. § 81A-112 (b) and (h); Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693)); American Finance Co. v. First Nat. Bank, 135 Ga. App. 24 (217 SE2d 364); Pascoe Steel Corp. v. Turner County Bd. of Education, 139 Ga. App. 87, 89 (227 SE2d 887). See Echols v. Dyches, 140 Ga. App. 191 (230 SE2d 315). For pertinent cases prior to the Civil Practice Act, see Cherry v. McCutchen, 68 Ga. App. 682, 689 (1) (23 SE2d 587); Talbott & Sons v. Collier, 102 Ga. 550 (2) (28 S.E. 225); Cutliffe v. Pryse, 187 Ga. 51, 54 (200 SE2d 124); Chance v. Planters &c. Cooperative, 219 Ga. 1 (131 SE2d 541).

2. Since the case was tried before a jury, findings of fact and conclusions of law under CPA § 52 (Code Ann. § 81A-152; Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171) were not required. Thomas v. Jackson, 238 Ga. 90 (1).

Judgment affirmed. Stolz and Shulman, JJ., concur.