This is an appeal from the refusal of the trial judge to vacate a judgment in a tort case. Appellant and his father were sued in the State Court of DeKalb County, Georgia, in a negligence action involving an automobile in the alleged amount of $1,189.80. Both defendants were served. No answer was filed by either of the defendants. The case being in default, the court entered the following order: "The case coming on regularly to be heard before the Judge Presiding without the intervention of a Jury, and after hearing evidence, and it appearing that the plaintiff is entitled to recover of the defendants jointly and severally the principal sum of $1,189.80, . . .judgment is hereby rendered in favor of the plaintiff and against” the defendants, etc.
The appellant moved to vacate the judgment on the grounds that Section 55 (a) of the Civil Practice Act (Code Ann. § 81A-155 (a)) requires that in cases of default in actions ex delicto, the issue of damages is required to be submitted to a jury and that the record in the present case on its face shows the statute was not complied with in that the case was not submitted to a jury as to the amount of damages.
The sole question for decision is whether or not in a suit for damages (action ex delicto seeking unliquidated *613damages) the defendant, although properly served, in failing to answer and who suffers a default judgment, waives trial by jury in a state court which requires a written demand for jury trial. Our Constitution allows judgment without a jury verdict in civil cases, "except actions ex delicto, where no issuable defense is filed.” See Constitution of 1945 (Code Ann. § 2-3907).
The local Act creating the Civil Court (now State Court) of DeKalb County (Ga. L. 1951, Vol. 2, pp. 2401, 2405), provides that if the defendant fails to make a written demand for trial by jury on or before the date upon which he is required to appear in court in response to the civil action, "he will be held to have waived the same.” But, upon the creation of the state court system below the superior court level (Ga.L. 1970, p. 679 et seq.) the rules of practice and procedure applicable to the superior courts "shall be the rules which govern practice and procedure” of the state courts coming under the provisions of that law. See Code Ann. § 24-2107a (Ga.L. 1970, pp. 679, 681).
Accordingly, the case of Pittman v. McKinney, 135 Ga. App. 192 (1) (2) (3) (4) (217 SE2d 446), completely controls this case as to a requirement by the Constitution and the Civil Practice Act (CPA, § 55; Code Ann. § 81A-155) that an ex delicto claim as to the amount of judgment must be "proved before a jury” even though the case be in default. This does not mean that the defendant cannot expressly waive a jury trial, but the law cannot waive it for the defendants as here.
Nothing is found in such cases as Morrison v. Brown, 21 Ga. App. 217 (94 SE 85); Wadley Southern R. Co. v. Wright, 31 Ga. App. 289 (120 SE 551); Boland v. Barge, 108 Ga. App. 689 (134SE2d 463); or Ewart Bros., Inc. v. Philips & Son, 44 Ga. App. 675 (4) (162 SE 634), which controls the above ruling. The case of Greene v. Greene, 76 Ga. App. 225 (45 SE2d 713), is authority for our view that the judgment rendered is void even though the appellant therein did not appeal at the first opportunity but waited and filed an affidavit of illegality to a levy instead of as in the case sub judice, moving to vacate and set the judgment aside. It clearly cannot be said that the appellant here has waited too late to raise this issue or has raised it for the first time on appeal.
*614It is also argued that Centennial Equities Corp. v. Hollis, 132 Ga. App. 44, 45 (2) (207 SE2d 573), a seven to two decision, is authority that the correct rule is set forth in Boland v. Barge, supra, 691. But this decision does not so hold, as Judge Webb so clearly points out in thePittman case. It involved the foreclosure of a lien, a special statutory proceeding, for a definite money judgment, not unliquidated damages as in the case sub judice.
Further, the cases cited by Centennial, such as Cherry v. McCutchen, 68 Ga. App. 682, 690 (23 SE2d 587), was one in trover, again a special statutory proceeding, seeking return of the article or its value; not strictly an ex delicto action. The case of Owen v. Stevenson, 18 Ga. App. 391 (89 SE 435), does not disclose what type of action it was in the Municipal Court of Atlanta as that case was in the superior court by certiorari. Again, the case of Lamar v. Bankers Health &c. Ins. Co., 32 Ga. App. 528 (123 SE 919), cited in Cherry v. McCutchen, supra, was an action in the Municipal Court of the City of Macon on review by certiorari from the superior court, and we do not have information as to the type of action.
We have likewise examined the cases of Hudgins v. Pure Oil Co., 115 Ga. App. 543 (2) (154 SE2d 768), and Marler v. C & S Bank of Milledgeville, 139 Ga. App. 851, both of which concern the waiver of jury trials in state courts. Neither has anything to do with default judgments in an ex delicto action as we have here, and neither falls afoul of the Georgia Constitution and the Civil Practice Act, nor are we holding that the parties cannot expressly waive a jury trial. Parties to litigation may also expressly waive findings of fact and conclusions of law as required by Code Ann. § 81A-152 (a) (Ga.L. 1969, pp. 645, 646; 1970, pp. 170,171). It is noted here that the trial judge, even if the bench trial had been properly held, failed to obey the mandate of Code Ann. § 81A-152 (a), and there was no waiver of this requirement, simply because defendant was not aware of the trial. But the judgment was void, and a remand for this reason is unnecessary.
Judgment reversed. Bell, C. J., Quillian, P. J., Clark, Stolz, Webb and Marshall, JJ., concur.
Deen, P. J., and Smith, J., dissent.