Opinion
53669.
ARGUED APRIL 4, 1977.
DECIDED MAY 2, 1977.
Action for damages. Franklin Superior Court. Before Judge Williford.
Andrew J. Hill, Jr., Edward E. Strain, III, for appellant.
McClure, Ramsay, Struble Dickerson, Robert B. Struble, Erwin, Epting, Gibson McLeod, Gary B. Blasingame, for appellee.
This appeal is from an order of the trial court dismissing plaintiff's complaint. It is quite clear the court considered defendant's motion to dismiss after hearing evidence, thus converting the motion into one for summary judgment (see Code Ann. § 81A-112 (b); CPA § 12; Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693), although the record does not disclose whether or not there was notice and hearing as required giving all parties a reasonable opportunity to present all materials pertinent to the motion under Code Ann. § 81A-156 (CPA, § 56; Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759). But no question as to this is involved on this appeal since no objection was made to the procedure.
The sole alleged error cannot be determined without reference to the evidence adduced at the hearing of defendant's motion. No transcript of the evidence was transmitted to this court and we have ascertained that no transcript has been filed in the trial court; consequently, in the absence of such transcript it must be presumed that the order of the trial court was authorized by the evidence. Smith v. Smith, 223 Ga. 795, 796 (2) ( 158 S.E.2d 679); Nichols v. Love, 227 Ga. 659, 660 (2) ( 182 S.E.2d 439); Frost v. Gasaway, 229 Ga. 354, 355 ( 190 S.E.2d 902); Marlow v. Tankersley, 230 Ga. 460, 461 ( 197 S.E.2d 709).
Judgment affirmed. Bell, C. J., and Smith, J., concur.