123 Ga. App. 604 | Ga. Ct. App. | 1971
This case has been transferred to this court by the Supreme Court for review since it is not a case in equity and does not involve title to land. See Pichulik v. Simpson, 227 Ga. 55 (178 SE2d 860). Rubin Pichulik and Karl Dziewienski brought an action for declaratory judgment against Mrs. C. A. Simpson, seeking a declaration of the rights of the parties as to the right of the defendant Simpson to exercise the optional acceleration clause, to declare due and collectible the entire unpaid principal sum with all accrued interest of a note executed by the plaintiffs to the defendant, as transferee and holder thereof. An ex parte restraining order was issued, and the same was set down for hearing as required by the declaratory judgment statute. The plaintiffs contend in their sworn petition that the defendant had accepted a pattern of late payments by check of the monthly payments. The defendant answered under oath,
1. The Appellate Practice Act of 1965 as amended (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073) under § 1 (a, 3) authorizes an immediate review from orders granting or refusing to continue a temporary restraining order. The appeal is properly before this court.
2. In reviewing judgments of the lower court this court presumes that such order or judgment is supported by every fact essential to make it valid and binding. Code §38-114; Chance v. Chance, 60 Ga. App. 889, 892 (5 SE2d 399); Pope v. U. S. Fidel. &c. Co., 193 Ga. 769 (4) (20 SE2d 13); Atlantic C. L. R. Co. v. Gause, 116 Ga. App. 216, 225 (156 SE2d 476); Gooch v. Seaboard C. L. R. Co., 121 Ga. App. 14, 16 (172 SE2d 435). Under the above authorities one who attacks a judgment has the burden of showing error. We therefore presume that upon the failure of the appellant to bring up any evidence, the judgment is correct, requiring an affirmance. Allen v. Smith, 223 Ga. 265, 266 (154 SE2d 605); Stamps Tire Co. v. Hartford Acc. &c. Co., 115 Ga. App. 326 (3) (154 SE2d 656).
3. It appears from the order that the court heard evidence. However, there is no transcript of evidence in the record. There is, however, a supplemental transcript of the record attached, approved by the trial judge and ordered up as a supplemental record, based upon the suggestion for transmittal by the appellee, as being admitted in evidence at the hearing, to wit: (a) The sworn complaint insofar as it recites facts; (b) Defendant’s sworn answer, defense, and counterclaim insofar as they recite
Judgment affirmed.