*1 142 (306 (1) SE2d State, 378 App. 167 Ga. (see v. Goodman argument
ing evidence, which nature circumstantial 417) (1983)), by by the whole, recognized as is as a only when taken sufficient was opinion. of its in the first division majority in Case No. the affirmance although concur Accordingly, in Case No. from the affirmance dissent 68592, respectfully I must 68385. Birdsong and Judge Presiding to state that authorized am Carley join
Judge OF COLUMBIA. BANK v. FEDERAL LAND MARTIN 68477. 787) (325 SE2d Judge. Banke, appéllee’s petition granting an order is an
This Held: of a foreclosure for confirmation required 44-14-161 Pursuant to OCGA § true market brought property sold whether the only to determine “pass upon but also to value Bank v. Fed. Land Wall generally sale.” See 76) (1977); v. North (240 236, Walker Columbia, 237 SE2d 240 Ga. 92) (1978). (251 121, Assn., 122 SE2d App. 148 Ga.
east Prod. Credit strictly ad and must be of common law derogation The statute is (282 671, App. 672 SE2d Thompson, v. 158 Ga. Taylor hered to. See (1981). 157) on the con- transcript hearing
No evidence prop- the sale was tending to indicate either petition firmation 44-14-162 or that the with OCGA erly advertised accordance § with OCGA of the sale accordance pellant properly was notified re- must be judgment that the confirmation 44-14-162.1. It follows moot of error are rendered remaining versed. The enumerations foregoing. J., J., Carley P. Birdsong, C. McMurray, reversed. Judgment Deen, J., Sognier, and Benham, JJ., Pope, P. concur. JJ., dissent. 29, 1984 Decided November
Rehearing 20, 1984 denied December Reeves, appellant. Robert S. Wildstein, Cardón, D. Anderson, N. Robert
L. C. Steven appellee.
Pope,
I respectfully majority dissent. The cites two reversal of the court’s confirmation of the subject fore- — viz., closure the lack of evidence that the sale properly advertised pursuant 44-14-162, to OCGA and the lack of evidence pursuant notified of the sale to OCGA § *2 However, 44-14-162.1. the record discloses that neither of these by below; thus, neither ground can form the Indeed, basis for a reversal this court. the testimony given by appellant himself finding a pellee had complied with both Code sections. See T. 46-51. In my view, the superior court’s findings of fact and conclusions of law are supported by the evidence of record and explain the deci- Therefore, sion rendered. I would affirm the judgment court.
I am authorized to state Judge Deen and Judge Sognier join in this dissent. affirm, but for different expressed by my reasons than
brother, although I agree with the majority that a consideration of Enumeration of Error 4No. would dispose of the case.
Appellant complains that the trial court erred in confirming the that there is no evidence from which the court could determine the sale was regularly conducted, that adequate no- tice or that the advertisement was legally sufficient. The provides: “at the hearing the court pass upon shall also legal- ity regularity of the sale. . . .” (c).
The statutory scheme, which must strictly adhered to because it is in derogation law, of common was not by followed in that it did not pass upon these three matters:
(1) Nowhere in its order is finding there a regarding notice given to the which it implied could even be the court drew the conclusion of law that legal. Nor did the court set out such a conclusion its order.
(2) The court did set out regarding the advertise- ment. It property stated that the was advertised for sale for four suc- cessive weeks preceding Tuesday the first in April, which was the date sale, and that the sale commenced at 10:00 a.m. on day prior However, concluded to 4:00 p.m. pass upon legality of this advertisement as having met OCGA 44-14-162.
(3) Nor expressly did the court sale, although fairly it can be inferred from the total order that the sale itself and concluded
court found trial court burden on the puts statutory scheme by than law rather made are issues which upon these three does not The statute opposing or contentions procedures but challenge these the defendant the burden on put cases, to ex- duty in such part rather on on issues ruling matter of just It is not a on them. amine and rule sale, the issues made confirming parties and made to assure that also, the law seeks because dealt with law must be foreclosure, property his real deprived of person before must be so construed The statute are taken. required by the law steps purpose there would be duty, because this affirmative contemplated that such is- legislature out if the statutorily setting it fol- challenged if only arise the landowner sues would superfluous would be judge on the statutory requirement lowed. The duty on the affirmative an additional put not intended to it was the is- himself raise it, landowner could because without judge, course, could waive these hand, the landowner On the other sues. passing have to so find trial court would statutory steps, but the here. it did not do so their this omission as er- does not raise is that The trouble *3 court, in order to in the trial required to do so ror. He should be is though even the burden complain appeal, on right his to questions without pass to on these initially on the trial court fully comply with The failure to making an issue of them. landowner below should not complete order statutory procedure and enter ground unless the appellate in the court be entertainable Certainly ample opportunity to there was complainant below. (b) and as ex- so, contemplated by OCGA 9-11-52 do such as is that in this case. Failure to raise by the trial court pressly invited deciding preclude majority’s or even here should ground below the case on it. pass that the court failed to complained
If had below appellant him to or even we allowed set out subsection on the issues court, outright not reverse initially in this would pass to the trial court to on reverse and remand with direction would advertisement, party after which either these issues of notice could anew. case, must look at what of this and we posture
But that is not the no evidence from which complains says of. He there is it is regu- favorably appellee to on the issue of pass could court below any disagree- that there does not seem to larity of the sale. About brethren, adduced at the hear- my agree. and I The evidence ment of facts, legal basically undisputed as to the ing and sale was conclusion that
The no complains landowner also that there was evidence adequate proper which the court could determine notice was given. findings regard The court not make to did with any upon nor it draw legal application did conclusions an of the law’s requirements right. But is There is no notice. evidence statutory as given required by OCGA 44-14- §§ -162.2, 162.1, -162.3, -162.4. All have is pre- we the debtor was sent, it may so be assumed he notice. But it proper had whether was is not allege notice determinable. The bank did not even gave it statutory notice to the in its If the complaint. debtor notice was not the trial court would had to have find that upon waived it order favorably to the issue of of notice to the creditor.
Appellant complains also that there was no evidence from which the court could determine that the advertisement was legally suffi- earlier, As cient. stated make findings court did certain regarding the but it it legal drew conclusions about and thus did not amake determination as whether the ad- to vertisement met the The statute. evidence is defi- cient in this regard, and it court’s were bot- on tomed Exhibit “C” of the Complaint for Confirmation of Sale. evidence, While that exhibit not even if it were as considered evidence, it does not establish the item published. fact court, in The making finding, rely have had to the con- tentions the complaint creditor that advertisement occurred required by security deed. Whether that would have met requirements of question, another but it need not be reached because defendant did not file an answer con- have testing advertisement order
duty earlier, the issue. As suggested the issue was made the law itself all procedural deficiency,
With of this error would affirm the judgment below because the appellant raise the ground may the trial where have been satisfied further order with or hearing. without is to goal assure that proceed protection foreclosure with full to the debtor who is his losing *4 property. provides only real specific procedure for the provides specific procedure It also a establishing a record transpired what concerning the sale as well as a specific establishing a proceedings record of below which will issues for review not for original consideration. joins am authorized to state that Deen Presiding Judge