Opinion
44023.
ARGUED OCTOBER 9, 1968.
DECIDED NOVEMBER 5, 1968. REHEARING DENIED NOVEMBER 21, 1968.
Action on contract. DeKalb Civil and Criminal Court. Before Judge Smith.
Fred W. Minter, for appellant.
Siegel, Frankel Weinstein, Lee M. Weinstein, for appellees.
1. Where, upon a hearing relating to the vacating of a judgment based upon facts not appearing on the face of the record, the judgment is vacated upon "evidence presented by both" parties, and there is no transcript of the proceedings or brief of the evidence relating to this hearing, the trial judge must be affirmed.
2. Where, in a suit upon a contract, the defendant answers but files no plea of payment, and alleged evidence of payments is admitted without objection, it is too late to complain of the admission of such evidence for the first time in this court.
3. The evidence upon the trial of the case, while conflicting and sometimes vague, was sufficient nevertheless to authorize the verdict in favor of the defendants.
Judgment affirmed. Jordan, P. J., and Deen, J., concur.