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Lawskills.com Georgia Caselaw
BENSON v. SULLIVAN.
64354.
BANKE, Judge.
Writ of possession. Fulton State Court. Before Judge Moran.
The plaintiff in this dispossessory proceeding was awarded a judgment for money damages as well as a writ of possession. The defendant appeals on the ground that damages were not prayed for in the dispossessory affidavit. It appears from the record that following trial and entry of judgment, the trial court ordered the pleadings. amended to conform to evidence that the defendant was in arrears in rent in the amount of $1,387.42, the amount awarded in the judgment. Held:
1. The amendment was authorized pursuant to Code Ann. 81A-115 (b), which provides, in pertinent part, as follows: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues." It follows that the award of damages was authorized.
2. The remaining enumerations of error require consideration of the evidence and testimony presented at trial. However, no transcript of the proceedings was transmitted with the record. " 'It is well settled that, absent a transcript, we are bound to assume that the trial judge's findings are supported by competent evidence.' Littlejohn v. J. A. Cavaness Steel Erectors, 149 Ga. App. 676 (257 SE2d 47) (1979)." McClindon v. Wright, 160 Ga. App. 348 (287 SE2d 74) (1981).
Suzanne H. Erb, William R. Rich, Robert C. Lamar, for appellee.
O. G. Benson, pro se.
DECIDED JULY 6, 1982.
Thursday May 21 20:52 EDT


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