dissenting.
This is an appeal from the refusal of the trial judge to vacate a judgment. There is no transcript of the proceeding. The record disclosed the appellant and his father were sued on March 18,1974, in the State Court of DeKalb County, Georgia, in a negligence action involving an automobile collision seeking recovery of damages to *617his automobile in the alleged amount of $1,189.80. Both defendants were served. The record does not disclose an answer was filed by either of the defendants. On November 21,1974, the following judgment was entered: "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, on March 1,1976, filed his motion 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.
1. A jury trial may be waived even though it is guaranteed by the Constitution and an Act establishing a court which requires a demand for a jury trial, otherwise it is waived, is constitutional.
"Even where a mode of affirmative waiver is prescribed, a trial by jury may be waived in civil cases in other ways. 'The clause in the constitution that the right to a jury trial in civil cases may be waived in the manner to be prescribed by law, has not been regarded as precluding courts from holding parties to have waived by their conduct or silence the right to a jury trial, upon general principles of law applicable to the subject, although the case is not provided for by any statute.’ Baird v. Mayor, 74 N. Y. 383. The statute touching the city court of Macon treats all parties to civil cases, whether plaintiffs or defendants, as waiving the right unless they demand it. No affirmative act by a party to a pending cause is required to set the trying functions of the court in motion, but an affirmative act is required to put a jury in motion. Under such a system every party is presumed to desire his case tried by the court if he fails to signify that he wishes a jury. Surely this is imposing a very mild condition. It is a reasonable regulation. Garrison v. Hollins, 2 Lea, 684; Lawrence v. Born, 86 Pa. St. 225; Foster v. Morse, 132 Mass. 354; Cooley Const. Lim., 6 ed. *618505. Much more onerous terms might be exacted by statute without infringing upon the constitutional sacredness of trial by jury. Flint River Steamboat Co. v. Foster, 5 Ga. 194.” Sutton v. Gunn, 86 Ga. 652, 657 (2(a)) (12 SE 979).
Certainly, if a constitutional requirement of trial by jury may be waived, a statutory requirement of trial by jury may also be waived.
We do not have a case here where no proof of damages was submitted, but only the absence of a jury.
2. The order recites the matter came on "regularly to be heard before the Judge Presiding without a jury.” In the absence of something in the record from the court below, disputing that regularity, we must assume that the parties consented to the trial by the judge without a jury. See Boland v. Barge, 108 Ga. App. 689, 690 (4) (134 SE2d 463); Centennial Equities Corp. v. Hollis, 132 Ga. App. 44, 45 (2) (207 SE2d 573). This last case cited is a full-court case in which Presiding Judge Eberhardt and Judge Clark dissented; however, their dissent was based upon a lack of evidence. The record on its face, therefore, presents no grounds for setting aside the judgment. See Boland v. Barge, supra, 691. Anything to the contrary stated in Pittman v. McKinney, 135 Ga. App. 192, 193 (4) (217 SE2d 446) must yield to the prior ruling in Boland v. Barge, supra, and the full-bench decision in Centennial Equities Corp. v. Hollis, supra. The burden is on the appellant to show error. The judgment overruling his motion to set aside or vacate the prior judgment rendered in the case should, in my opinion, be affirmed.
I concur with the dissent of Judge Been.