Dorsey v. West, 40164

• Court: Supreme Court of Georgia
• Writing for the Court: GREGORY; All the Justices concur, except SMITH
• Citation: 252 Ga. 92,311 S.E.2d 816
• Parties: DORSEY, et al v. WEST, et al
• Docket Number: No. 40164,40164
• Decision Date: 31 January 1984

Page 816

311 S.E.2d 816

252 Ga. 92

DORSEY, et al v. WEST, et al

No. 40164.

Supreme Court of Georgia.

Jan. 31, 1984.

Rehearing Denied Feb. 15, 1984.

Michael C. Ford, Ford & Ford, P.C., Atlanta, for Gertrude dorsey et al.

Durwood T. Pye, Atlanta, for Mildred Victoria West et al.

John B. Long, Thomas W. Tucker, Paul Kauffmann, Steven Gottlieb, amici curiae.

GREGORY, Justice.

In April, 1973, the Wests loaned the Dorseys $9,000 at an interest rate of 9%, securing the loan by secondary security deeds. The Dorseys eventually defaulted on the loan. Subsequently they filed suit against the Wests, alleging the loan was usurious under former Code Ann. § 57-201, Ga. Laws 1966, pp. 574, 576; 1967, p. 637; 1968, p. 1068. The Wests conceded the loan was in "technical violation" of the law, but counterclaimed for return of the principal, maintaining a "bona fide error" had resulted in the charging of excessive interest. See, former Code Ann. § 57-203(a), Ga. Laws 1966, pp. 574, 577; 1976, pp. 726, 727.

The trial court granted the Wests' motion for summary judgment, awarding them the principal amount of the indebtedness, less any payments previously made by the Dorseys. The Court of Appeals reversed, "remand[ing] with direction that judgment be entered in favor of the [Dorseys] for the amount which they have paid to the [Wests] on this indebtedness." Dorsey et al. v. West et al., 159 Ga.App. 274, 276 283 S.E.2d 314 (1981). This court granted certiorari, and "affirm[ed] the holding of the Court of Appeals that the 9 per cent interest rate is usurious, and that the penalty is total forfeiture of the principal, interest and other charges under the older version of the law," but differed with the Court of Appeals on the interpretation given to the term "charge" as used in the Act. ¹ West et al. v Dorsey et al., 248 Ga. 790, 791, 285 S.E.2d 703 (1982). The Court of Appeals then vacated its opinion to the extent it was inconsistent with this court's ruling in 248 Ga. 790, 285 S.E.2d 703. The Court of Appeals found, however, that "[o]ur prior judgment, reversing the judgment of the trial court and remanding the case with direction to enter judgment in favor of the [Dorseys] for the amount paid by them on the indebtedness, remains unchanged." Dorsey et al. v. West et al., 161 Ga.App. 253, 289 S.E.2d 827 (1982).

When the trial court received the remittitur from the Court of Appeals, it did not enter a money judgment in favor of the Dorseys, but instead, on March 5, 1982, entered an order "that the judgment of the Court of Appeals of the State of Georgia in [this] case be, and the same is hereby, made the judgment of this court."

During the 1982 Session the Georgia legislature passed an act governing loans secured by secondary security deeds, made effective April 12, 1982, which provided, in part, "on loans of $5,000 or more ... [t]he claim or defense of usury by any borrower under this Code section ... is prohibited." Ga.Laws 1982, p. 488, 490. In August, 1982, the Wests brought this act to the attention of the trial court, maintaining that the trial court had not rendered a final judgment in the case and that Georgia Laws 1982, p. 488, 490 now applied to bar the Dorseys' claim. On August 31, 1982 the trial court entered an order requiring the Wests to return to the Dorseys $2,013.81 ² as the sum paid on the loan.

The Wests appealed to the Court of Appeals. That court reversed, finding the trial court's March 5, 1982 order "making the judgment of the Court of Appeals ... the judgment of [the trial] court" was not a final judgment. The Court of Appeals held that until such time as the trial court entered a judgment awarding the Dorseys a sum certain as the penalty for violation of the statute, there could be no final judgment in the case. As the trial court "did not comply with the direction" of the Court of Appeals before the act lifting the penalty for usury took effect, and as there is no vested right in a penalty, Southern Discount Co. of Ga. v. Ector, 246 Ga. 30, 31, 268 S.E.2d 621 (1980), the Court of Appeals concluded that the Wests "could except to [the trial court's August 31, 1982 imposition of the penalty] merely on the basis that the law had changed before the penalty was assessed by final judgment and the Dorseys were not entitled to it." West v. Dorsey, 167 Ga.App. 233, 237, 305 S.E.2d 840, 844.

We do not agree. While it is true that the amount of the judgment under the forfeiture statute in effect in 1973 had not been calculated, the issue of whether a forfeiture was appropriate under the statute had been finally determined by this court in West et al. v. Dorsey et al., 248 Ga. 790, 285 S.E.2d 703 (1982). Our decision left no other matters open for resolution with regard to the issue of forfeiture. Rather, the decision became "final" following our denial of the motion for rehearing on January 26, 1982. ³ See, e.g., Cotton States Mutual Ins. Co. v. McFather, 751 Ga. 739(3), 309 S.E.2d 799 (1983); Colwell v. Voyager Casualty Ins. Co., 251 Ga. 744, Note...