Touchton v. Stewart

229 Ga. 303 (1972) 190 S.E.2d 912

TOUCHTON
v.
STEWART et al.

27236.

Supreme Court of Georgia.

Argued June 12, 1972. Decided June 28, 1972.

A. W. Touchton, for appellant.

J. Laddie Boatright, Frank E. Blankenship, for appellees.

UNDERCOFLER, Justice.

The controlling question presented by this appeal is whether the trial court erred in dismissing the complaint of the appellant without notice that the case was on the trial calendar as required by Code Ann. § 81A-140 (c) (Ga. L. 1966, pp. 609, 653; 1967, pp. 226, 245).

The trial court's order states: "The within case having been placed on the calendar for the February term 1972 of the Superior Court of Echols County and same having been called for trial on February 7th, 1972, and at the regular February term 1972 of said court and no one having answered for either party and no continuance having been requested, said action, including all cross actions are hereby dismissed with prejudice." The appeal is from this judgment. Held:

The appellant argues in his brief that it was error for this case to be placed on the trial court calendar without notice to him under the provision of Code Ann. § 81A-140 (c). The record does not show whether notice was given to the appellant. The appellee in his brief states that he received notice that the case was on the calendar for February 7, 1972.

There is a presumption in favor of the regularity and legality of all proceedings in the superior court. Code § 38-114; Johnson v. State, 27 Ga. App. 679, 681 (109 S.E. 526). See Bible v. Marra, 226 Ga. 154, 159 (173 SE2d 346).

Since this presumption of law cannot be rebutted by a direct appeal in this case involving an issue of fact which has not been judicially determined by the trial court, the contention of the appellant is without merit. See in this connection Wilkes v. Ricks, 126 Ga. App. 266.

Judgment affirmed. All the Justices concur.