ABAD v. KRAFT, INC., 206 Ga. App. 626 (1992)


426 S.E.2d 270

ABAD v. KRAFT, INC. et al.

A91A1084.Court of Appeals of Georgia.
DECIDED DECEMBER 4, 1992.

COOPER, Judge.

This court entered a judgment in the above-styled case at 201 Ga. App. 523 (411 S.E.2d 500) (1991) reversing the judgment of the trial court. The Georgia Supreme Court granted certiorari i Kraft v. Abad, 262 Ga. 336 (417 S.E.2d 317) (1992) and reversed our holding. Accordingly, our judgment is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court with respect to

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appellant’s first enumeration of error. In our first opinion, we declined to address appellant’s second enumeration of error in which she argued that the trial court erred in striking her demand for a jury trial. We conclude that the authority to also strike appellant’s demand for a jury trial was implicit in the trial court’s authority to enter judgment in favor of the appellee/defendant upon appellant/plaintiff’s failure to appear at trial. Cf. Stewart v. Stewart, 260 Ga. 812 (400 S.E.2d 622) (1991). Appellant’s reliance on Sewell v. Leifer, 144 Ga. App. 36
(240 S.E.2d 584) (1977) is misplaced. In that case, the trial judge entered judgment in favor of the plaintiff upon the defendant’s failure to appear, but there remained the issue of damages to be tried by the jury. Furthermore, any error in striking appellant’s demand was harmless since appellant failed to present any evidence and judgment for appellee was demanded. See Marler v. C S Bank, 239 Ga. 342 (236 S.E.2d 590) (1977). Accordingly, we find no merit to this enumeration of error.

Judgment affirmed. Birdsong, P. J., and Pope, J., concur.

DECIDED DECEMBER 4, 1992.
Case dismissal. Fulton State Court. Before Judge Lambros.

Siler Associates, William A. Dinges, for appellant.

Fain, Major Wiley, Gene A. Major, Bruce A. Maxwell, for appellees.