Jolly v. Jolly
| Decision Date | 16 February 1976 |
| Docket Number | No. 3,No. 51807,51807,3 |
| Citation | 224 S.E.2d 807,137 Ga.App. 625 |
| Parties | Mary A. L. JOLLY v. L. J. JOLLY |
| Court | Georgia Court of Appeals |
James L. Brooks, Commerce, for appellant.
Gregory M. Perry, Commerce, for appellee.
A somewhat simplified statement of the facts follows: The appellee, plaintiff below, brought suit in trover to recover 'a 1972 Glastron, Outboard Pleasure Boat, Hull Serial #1342826' and prayed for return of 'the boat in specie' and for reasonable hire for the boat. The jury found in plaintiff's favor on the return of the boat but not for its rental. The judgment ordered and adjudged the return 'in specie of the boat (1972 Glastron Fiberglass Boat, Hull Serial #1342826, 140 H.P. Outboard Motor, and Trailer). . . .' The defendant filed a notice of appeal from this judgment and thereupon the plaintiff filed a motion to amend his complaint to conform to the evidence so as to include the outboard motor and the trailer in the original trover action. This motion was granted. The defendant here appeals from the judgment ordering the return of the boat, motor and trailer and the motion to amend the complaint.
The jury's verdict was for the return of 'the boat.' The judgment was for the boat, motor and trailer. Under Code § 110-301 the judgment shall conform to the verdict. Under Code § 110-105 verdicts are to have a 'reasonable construction.' Thus the question for resolution is whether a verdict for 'the boat' may be reasonably construed so as to result in a judgment for the boat, motor and trailer.
The first problem is whether such a construction may turn to elements outside the terms of the verdict or is limited to those terms. Where a verdict is plain and unmistakable in its legal effect, it must speak for itself, unaided by any consideration of pleadings and facts proved upon trial for construction thereof. Ryner v. Duke, 205 Ga. 280, 282, 53 S.E.2d 362. We note however that these cases deal with the construction of verdicts dealing with a defendant's liability and its resulting effect on jurisdiction. See Turner v. Shackleford, 39 Ga.App. 49(1), 145 S.E. 913; Evans v. Garrett, 72 Ga.App. 846, 35 S.E.2d 387; Henry v. Mann, 134 Ga.App. 522, 215 S.E.2d 286. We deal here however with an action in trover, the gravamen of which is the return of property. And we see no reason why we should be limited to the words of the verdict in such a case, when the very issue at hand is what those words mean and not what the effect of those words is on jurisdiction. In this trover action we do not believe the term 'boat' to be so explicit as to preclude a consideration of the pleadings and the evidence in construing the verdict. Giles v. Spinks, 64 Ga. 205; Harvey v. Head, 68 Ga. 247(1); Seifert v. Holt, 82 Ga. 757, 9 S.E. 843; Short v. Cofer, 161 Ga. 587(1), 131 S.E. 362; Jones v. Empire Furniture Co., 40 Ga.App. 556(1), 150 S.E. 563; Merchants Groc. Co. v. Albany Hardware & Mill Supply Co., 44 Ga.App. 112, 160 S.E. 658; Dunson v. Harris, 45 Ga.App. 450(2), 164 S.E. 910.
Thus we come to the conclusion that the pleadings and all undisputed facts proved on trial may be examined and considered in construing the verdict awarding the plaintiff 'the boat.' David v. Tucker, 140 Ga. 240, 243, 78 S.E. 909; Carithers v. Carithers, 202 Ga. 596(2), 43 S.E.2d 503; Sheldon v. Hargrose, 213 Ga. 672(2), 100 S.E.2d 898. The original complaint specified only a boat, designated by a hull number; subsequent to the judgment the plaintiff was allowed to amend his complaint to include the motor and the trailer. Under Code Ann. § 81A-115(b) (CPA § 15(b)) such post-judgment amendments are proper if they conform the pleadings to the evidence. It also appears that notwithstanding the mandate of CPA § 15(b) to amend the pleadings to conform to the evidence, if the verdict and judgment are supported by evidence received without objection they will stand even without amendment. Howard v. Barrett, 52 Ga. 15(2)....
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...due appellee. "Where a verdict is plain and unmistakable in its legal effect, it must speak for itself.... [Cit.]" Jolly v. Jolly, 137 Ga.App. 625, 626, 224 S.E.2d 807 (1976). Accordingly, the trial court erred by amending the verdict as returned. See OCGA § 5. In its first enumeration, the......
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...the judgment. We find that the judgment conforms to the jury's verdict and is definite and capable of execution. See Jolly v. Jolly, 137 Ga.App. 625, 224 S.E.2d 807 (1976). Appellant complains that the judgment for actual damages in the amount of $8,593.26 is inaccurate. However, the jury r......
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