Aetna Cas. & Sur. Co. v. Bullington
| Decision Date | 08 April 1971 |
| Docket Number | No. 26329,26329 |
| Citation | 227 Ga. 485,181 S.E.2d 495 |
| Parties | AETNA CASUALTY & SURETY COMPANY et al. v. Shirley BULLINGTON et al. |
| Court | Georgia Supreme Court |
Skinner, Wilson & Beals, Warner R. Wilson, Jr., Atlanta, for appellants.
Mundy, Gammage & Cummings, William W. Mundy, E. Lamar Gammage, Jr., Cedartown, for appellees.
Syllabus Opinion by the Court
Certiorari was granted in this case to review the decision of the Court of Appeals reversing the judgment of the trial court where a provious appeal from a like judgment in the same case had been dismissed. The superior court originally passed on the appeal from the State Board of Workmen's Compensation on December 3, 1969, and affirmed the award. A notice of appeal wa filed by the claimant. When the claimant failed to timely file an enumeration of errors or brief, the appeal was dismissed on March 10, 1970. While the appeal was pending in the Court of Appeals, and again after the remittitur was made the judgment of the trial court, the trial court entered judgments vacating its original judgment and thereafter, on April 27, 1970, issued a second judgment affirming the judgment of the State Board of Workmen's Compensation. This latter judgment was appealed to the Court of Appeals and reversed. The judgment of the trial court rendered while the original appeal was pending in the Court of Appeals (vacating the original judgment) was during the same term of court as the original judgment while the second judgment vacating the original judgment was rendered at a subsequent term of court. Held:
1. The filing of a notice of appeal serves to supersede a judgment and while on appeal, the trial court is without authority to modify such judgment. See Jackson v. Martin, 225 Ga. 170, 172, 167 S.E.2d 135, and citations. Accordingly, the judgment attempting to vacate the prior judgment, though rendered during the same term of court, was a nullity, even assuming that the prior judgment could be set aside without any meritorious reason being given therefor. See Hicks v. Hicks, 226 Ga. 798, 177 S.E.2d 690.
2. The effect of the dismissal of the first appeal from an appealable judgment was to affirm the judgment of the trial court there excepted to and the trial court was without authority to vacate or alter such prior judgment which was res judicata between the parties. Compare Pearle Optical of Monroeville v. State Board of Examiners in Optometry, 219 Ga. 856, 136 S.E.2d 371, where it was held: ...
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