National Bank of Georgia v. Refrigerated Transport Co., Inc.
Decision Date | 21 September 1978 |
Docket Number | Nos. 56222,56223,s. 56222 |
Citation | 147 Ga.App. 240,248 S.E.2d 496 |
Parties | , 25 UCC Rep.Serv. 528 NATIONAL BANK OF GEORGIA v. REFRIGERATED TRANSPORT COMPANY, INC. REFRIGERATED TRANSPORT COMPANY, INC. v. NATIONAL BANK OF GEORGIA. |
Court | Georgia Court of Appeals |
Heyman & Sizemore, William H. Major, Hicks, Maloof & Campbell, Robert A. Bartlett, Smith, Cohen, Ringel, Kohler & Martin, Ralph H. Hicks, Atlanta, for appellant.
Serby & Mitchell, Louis C. Parker, III, Atlanta, for appellee.
On a prior appearance of this case, defendant appealed from the grant of a judgment notwithstanding the verdict in favor of Refrigerated Transport Co., Inc. (RTC). National Bank of Ga. v. Refrigerated Transport Co., 143 Ga.App. 661, 239 S.E.2d 551 (1977). This court held that the case was not properly before the court because the trial court had not ruled on appellee's alternative motion for a new trial, and the case was remanded to the trial court with direction that the alternative motion for a new trial be ruled upon as provided in Code Ann. § 81A-150(c)(1). On remand, the trial court filed an order on December 2, 1977, denying plaintiff's motion for a new trial on each and every ground, but did not vacate the previous order ruling on the j.n.o.v. On January 10, 1978 NBG filed a motion with the trial court requesting that the order of December 2, 1977, be set aside because the case was not appealable by the defendant. On February 3, 1978, the trial court entered an order vacating the December 2 order and ruled that the previous order left the case in a posture from which the results could not be appealed, and entered a new order containing findings of fact and conclusions of law whereby it granted plaintiff's motion for a judgment notwithstanding the verdict and denied plaintiff's alternative motion for a new trial. NBG appeals to this court from the grant of the j.n.o.v. RTC cross appeals and moves to dismiss NBG's appeal contending that defendant did not file a timely appeal and that the trial court was without authority to enter the order of February 3, 1978.
When NBG appealed from the trial court's order granting plaintiff's motion for a j.n.o.v., the appeal was premature under Code Ann. § 81A-150(c)(1) because the trial court is also required to rule upon the plaintiff's alternative motion for a new trial before the appeal is properly before this court. In Speer v. Gemco Elevator Co., 134 Ga.App. 360, 214 S.E.2d 425 (1975), the trial court complied with the first provision of CPA Rule 50(c)(1), by ruling on the alternative motion for a new trial when ruling on the motion for a judgment notwithstanding the verdict, but it did not comply with the second provision which requires that the order specify the grounds for granting or denying the motion for a new trial. This court rejected appellant's contentions that the order is void and must be reversed, and remanded the case with direction that the trial court vacate the order and enter a judgment in accordance with CPA Rule § 50(c)(1) specifying the grounds for granting or denying the motion for a new trial.
In McConnell v. Brenau College, 134 Ga.App. 470, 215 S.E.2d 25 (1975), the case was remanded to the trial court with direction that the lower court rule upon the alternative motion for a new trial. When the case reappeared as McConnell v. Brenau College 135 Ga.App. 711, 218 S.E.2d 464 (1975), the trial court had vacated the prior order and entered a new order containing findings of fact and conclusions of law on both motions. We believe that this is the correct procedure for the trial court to follow and was implicit in our prior ruling. As the trial court's order of December 2, 1977, was incomplete, it was not error for the trial court to vacate that order and enter a new order on February 3, 1978, which contained findings of fact and conclusions of law on both motions.
Appellant contends that the trial court erred in granting RTC's motion for a j.n.o.v. As the trial court's findings of fact and conclusions of law are extensive, we adopt them as a part of our opinion:
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