529 S.E.2d 923 | Ga. Ct. App. | 2000
On October 9, 1997, following this Court’s decision in Dunlap v. Moody, 224 Ga. App. 38 (479 SE2d 456), appellee-petitioners Cleve
1. Pretermitting respondent Campbell’s claim that the instant case is one ex delicto, the record reflects that the superior court afforded respondent such a hearing. Even if the superior court had not done so, the record shows not the payment of costs under oath, but an offer under oath to pay costs “[i]f the court determines that
2. In light of our disposition of Division 1, we need not address respondent’s remaining claim of error.
Judgment affirmed.
Respondent’s counsel did so upon the following colloquy with the superior court: [RESPONDENT CAMPBELL’S COUNSEL]: Now that’s, I’ve filed these other motions and if the court, we’ll I’m just asking the court to set it down and let us have a hearing on the issue of default before you put us in that status, that’s a real change in circumstances, a real prejudice on the you know.
COURT: Well I understand, I’m going to look at it and see. I’ll issue, I’ll either issue one before the day’s over or I’ll have another hearing, we’ll have a hearing on the — [RESPONDENT CAMPBELL’S COUNSEL]: I just ask you to read my brief.
On May 6,1999, four days before the superior court filed its judgment in the case sub judice, respondent filed a traverse of certificate, opposing a certificate filed by petitioners which sought default judgment.
At the hearing on petitioners’ motion for declaration of heirs, respondent stated “we’re in default because of a misnomer in the [answer] that I filed before I got sick.” However, by his brief on appeal, respondent’s counsel, though indicating he continued to practice law while ill, argued “[he] was reduced to tears and/or anger, on numerous occasions, including November 7, 1997, when I filed the answer which is the subject of this litigation.” “[U]nsupported assertions of fact in appellate briefs will not be considered by this court on appeal. See, e.g., Davis v. Gamble, 151 Ga. App. 155 (259 SE2d 159) (1979).” Joyner v. Schiess, 236 Ga. App. 316, 318, n. 1 (512 SE2d 62).