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SMITH v. PUBLIC STORAGE, INC.

QUILLIAN, Chief Judge.

This appeal was brought from the entry of a dispossessory warrant against the appellant and the award of monetary damages to the appellee by the State Court of Fulton County. Held:

1. The cause was tried without a jury and the first enumeration of error complains of the failure to enter findings of fact and conclusions of law. A review of this record reveals that no findings of fact were made and that there was no waiver by appellant. Under the facts here, Code Ann. § 81A-152 (Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171), requires that the trial judge "set forth findings of fact and conclusions of law. "See Smith v. Mack, 161 Ga. App. 95 ( 289 S.E.2d 299). See also Shelor v. Shelor, 139 Ga. App. 11 ( 228 S.E.2d 18).

Because no facts were recited in the order, this case does not fall within the vacillating exception regarding the mandatory aspects of the requirements of Code Ann. § 81A-152 as espoused by our Supreme Court, which exception first found expression in Faucette v. Faucette, 228 Ga. 201 ( 184 S.E.2d 586) and Collins v. Collins, 231 Ga. 683 (1) ( 203 S.E.2d 524), was subsequently rejected and disapproved in Doyal Development Co. v. Blair, 234 Ga. 261 ( 215 S.E.2d 471), and was then revived in part by that court in Paxton v. Trust Co. Bank, 245 Ga. 834 (1) ( 268 S.E.2d 154), holding that a substantial compliance with the Code Section was sufficient.

The appeal is therefore remanded with direction that the judgment be vacated, and that the trial judge enter a new judgment containing appropriate findings of fact and conclusions of law. Wojcik Constr. Co. v. Schell's Concrete Co., 153 Ga. App. 793, 794 ( 266 S.E.2d 569). The losing party thereupon shall be free to enter an appeal.

Appeal remanded with direction. Shulman, P. J., and Carley, J., concur.

DECIDED SEPTEMBER 10, 1982.
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SMITH v. PUBLIC STORAGE, INC
(Sep 10, 1982)