Flanders v. Commercial Credit Equipment Corp.

145 Ga. App. 193 | Ga. Ct. App. | 1978

Quillian, Presiding Judge.

The plaintiff brought foreclosure proceedings seeking possession of two tractors. After the defendant answered and prayed for a jury trial, the case came on for hearing. The trial judge determined there was an absence of any issuable defense and granted possession to the plaintiff.

Argued October 11, 1977 Decided January 12, 1978 Rehearing denied February 7, 1978. Guy B. Scott, Jr., for appellant. Allen, Edenfield, Brown & Wright, Charles H. Brown, for appellee.

The defendant appeals and contends it was error not to grant his demand for jury trial. Held:

In Jordan v. Farmers & Merchants Bank, 138 Ga. App. 43 (225 SE2d 498), this court reversed the issuance of a writ of possession where there was no hearing, the defendant had filed answers and demanded a jury trial. It was pointed out that the pleadings did not reveal the absence of any defense. In the case sub judice, the trial judge considered the pleadings and found as a matter of law there were no issues requiring trial (see Code Ann. § 67-704; Ga. L. 1974, pp. 398, 400) and on appeal the defendant has failed to contest such holding on the merits. Hence, absent any triable issues the fact that defendant demanded a jury trial will not require a reversal. Moore v. Trust Co. Bank, 142 Ga. App. 877 (237 SE2d 471). Compare First Nat. Bank of Commerce v. Baker, 142 Ga. App. 870 (237 SE2d 233).

Judgment affirmed.

Shulman and Banke, JJ., concur.