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Lawskills.com Georgia Caselaw
HARRIS v. HARRIS.
26825.
HAWES, Justice.
Divorce. Clayton Superior Court. Before Judge Kemp.
1. Appellant relies in part on two local practice rules. These rules are not set out anywhere in the record or transcript. We cannot take judicial cognizance of the content of these rules and we must, therefore, presume that the trial court properly interpreted and applied its own rules insofar as they affect the judgment appealed from.
2. While there is no judgment by default in a divorce case, this rule means no more than that in any divorce case where no defensive pleadings are filed it is incumbent upon the trial court to hear evidence in support of the plaintiff's grounds of divorce and make an affirmative finding therefrom that the grounds are legal and are sustained by proof. Code 30-129; Lovelace v. Lovelace, 179 Ga. 822, 825 (177 SE 685): 9 E. G. L. 168, Divorce and Alimony, 65. The record in this case shows that the decree sought to be set aside was rendered "upon evidence submitted as provided by law." The evidence upon which the decree was based is not set out in the record before this court and in the absence of an affirmative showing to the contrary it must be presumed that the decree was based upon a legal showing.
3. Under 5 (a) of the Civil Practice Act (Ga. L. 1966, pp. 609, 615; 1967, pp. 226, 229; Code Ann. 81A-105 (a)), "the failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices, including notices of time and place of trial." (Emphasis supplied.) Under 40 of the same Act (Code Ann. 81A-140) the case was triable at any time after April 1, 1971, and there is no merit in the appellant's contention that she was entitled to notice of the time and place of trial. Newton v. Newton, 226 Ga. 440 (175 SE2d 543).
Weiner & Bazemore, Paul S. Weiner, for appellant.
ARGUED NOVEMBER 9, 1971 -- DECIDED JANUARY 6, 1972 -- REHEARING DENIED JANUARY 19, 1972.
Friday May 22 14:43 EDT


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