242 S.E.2d 301 | Ga. Ct. App. | 1978
FREDD et al.
v.
RANDOLPH.
Court of Appeals of Georgia.
Claudius G. Fredd, pro se.
Charles H. Edwards, Claude E. Hambrick, for appellee.
DEEN, Presiding Judge.
From a judgment for the defendant the appellant filed a motion for new trial on the general grounds and one special ground which alleged that he was not served with an answer to the complaint and was therefore not aware of the appellee's defenses until the trial. There is no transcript of evidence. The motion for new trial was *757 dismissed for lack of prosecution and plaintiff appealed, enumerating as error (a) the denial and (b) dismissal of the motion for new trial; (c) that there exists new evidence not previously available to appellants, and (d) that "the verdict was contrary to every subsequent court action" in the case. Held:
1. Where there is no transcript or agreed stipulation as to the evidence adduced on the trial, enumerations of error which require evaluation of evidence cannot be considered. State v. Frazier, 141 Ga. App. 501 (233 SE2d 868); Griggs v. Griggs, 234 Ga. 451 (1) (216 SE2d 311).
2. As to that ground of the motion for new trial complaining that the plaintiff did not receive a timely copy of the answer, it appears that the defendant filed no timely answer and the case was marked in default but, notwithstanding this, the court entered a judgment finding that, damages being unliquidated (loss of partnership profits) the burden remained on the plaintiff to prove the amount and he failed to introduce any evidence to accomplish this result, for which reason a general judgment for the defendant was entered as to everything except court costs. The appellant has failed to show what evidence he introduced or to establish its sufficiency.
3. The requirements for making a showing of the right to a new trial based on newly-discovered evidence were not complied with. Shepherd v. Shepherd, 233 Ga. 228, 230 (210 SE2d 731).
4. The remaining grounds address themselves solely to the discretion of the trial court.
Judgment affirmed. Smith and Banke, JJ., concur.