Sirmans v. Citizens and Southern Nat. Bank

• Decision Date: 11 October 1974
• Docket Number: No. 2,No. 49584,49584,2
• Citation: 209 S.E.2d 697,132 Ga.App. 894
• Court: Georgia Court of Appeals
• Parties: M. S. SIRMANS v. CITIZENS & SOUTHERN NATIONAL BANK

Page 697

209 S.E.2d 697

132 Ga.App. 894

M. S. SIRMANS v. CITIZENS & SOUTHERN NATIONAL BANK.

No. 49584.

Court of Appeals of Georgia, Division No. 2.

Oct. 11, 1974.

Elsie H. Griner, Nashville, for appellant.

Tillman, Brice, McTier & Coleman, John T. McTier, Valdosta, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

1. 'Where a judgment in favor of one of two parties litigant is reversed by the appellant court without direction, and where only questions of fact, or mixed questions of law and fact are involved, the legal result is a new trial, not the rendition of a judgment without trial and as a matter of course. Schley v. Schofield & Son, 61 Ga. 528.' Smith v. Smith, 119 Ga.App. 619, 620, 168 S.E.2d 609, 611.

2. The rule was always been that the grant of a new trial is a de novo proceeding insofar as the right to amend by supplying additional germane allegations of fact is concerned. Glisson v. Bankers Health & Life Ins. Co., 64 Ga.App. 300, 13 S.E.2d 84. Nothing in the Civil Practice Act has changed the right to amend under such circumstances. Code Ann. § 81A-115. Under the corresponding Federal Rule 15 it is generally held that where a case is reversed and remanded for further proceedings the right to amend remains within the court's discretion. See Jones v. St. Paul Fire & Marine Ins. Co., 5 Cir., 108 F.2d 123; Silverman v. McGinnes, D.C., 170 F.Supp. 813.

3. Affidavits of illegality are amendable. Code § 39-1005. Amendments which merely amplify the grounds of the original affidavit do not require a sworn statement that the facts stated were unknown to the movant when the illegality was first filed. Mayor & Aldermen of Savannah v. Wade, 148 Ga. 766(1), 98 S.E. 464.

4. In the present case the plaintiff bank filed an affidavit of foreclosure on personalty based on five conditional sales contracts. Defendant filed an affidavit of illegality. The court, hearing the facts without a jury, entered up judgment for the plaintiff. This court reversed (Sirmans v. C. & S. National Bank, 129 Ga.App. 551, 199 S.E.2d 894) on the sole ground that the judgment lumped together principal and interest which was illegal because '(t)o allow the principal and interest to be joined in one sum in the foreclosure would be to allow interest to be collected on interest.' This court gave no special directions either for modifying the judgment as entered or for entering final judgment. Thereafter, and before the remittitur was made the judgment of the trial court, plaintiff amended in such manner as to separate the...