West v. Dorsey

Citation167 Ga.App. 233,305 S.E.2d 840
Decision Date16 June 1983
Docket NumberNo. 65727,65727
PartiesWEST et al. v. DORSEY et al.
CourtUnited States Court of Appeals (Georgia)

Durwood T. Pye, Atlanta, for appellants.

Michael C. Ford, Atlanta, for appellees.

BIRDSONG, Judge.

In 1973, the Wests lent the Dorseys $9,700 at 9% interest per annum. The loan was secured by second security deeds. The Dorseys made some payments on the loan and then defaulted.

Subsequent developments in the case are set forth in West v. Dorsey, 248 Ga. 790, 285 S.E.2d 703; Dorsey v. West, 161 Ga.App. 253, 289 S.E.2d 827; Dorsey v. West, 159 Ga.App. 274, 283 S.E.2d 314. The gist of those proceedings is that because the Wests had charged 9% interest at a time when maximum allowable simple interest rate was 8%, the loan was usurious. The penalty extracted from the Wests for their usury was the forfeiture of the entire principal and interest, and the return to the Dorseys of any payments made by them on the loan. See Dorsey v. West, 159 Ga.App. 274, 283 S.E.2d 314, supra, which reversed the trial court's judgment in favor of the Wests.

Ultimately, this court at 161 Ga.App. 253, 254, 289 S.E.2d 827, on February 12, 1982, remitted the case to the trial court with our earlier reversal intact, and with instructions "to enter judgment in favor of the [Dorseys] for the amount paid by them on the indebtedness."

However, the trial court did not, as specifically instructed by this court, enter a judgment for the Dorseys which would have assessed the penalty of forfeiture of principal and interest and return of payments made. Rather, on March 5, 1982, the trial court merely "ordered 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." Thus it remained until August 31, 1982. On that date, the trial court "nunc pro tunc" entered a money judgment order requiring the Wests to pay back the $2,013.81 which the Dorseys had paid on the loan. This order still did not mention a forfeiture of principal and interest against the Wests.

In the meantime, however, the Georgia legislature passed an act effective April 12, 1982, providing in pertinent part: "Notwithstanding the provisions of other laws to the contrary, on loans of $5,000.00 or more, a person ... or other legal entity may charge ... interest and charges at any actuarial rate and amount and in any manner of repayment agreed upon by the parties for a loan of $5,000.00 or more amount financed, as that term is defined by the federal Truth in Lending Act, if said loan is secured in whole or in part by [second] security deed ... executed by an individual or individuals. The claim or defense of usury by any borrower under this Code section or his successor or anyone on his behalf is prohibited." Ga.L.1982, p. 488, 490. This act is now codified at OCGA § 7-4-34.1.

It is contended that if this Act is applied retrospectively, all the penalties against the Wests for their usurious loan are wiped out completely, i.e., not "merely ... ameliorated [but] lifted by subsequent legislation." See Southern Discount Co. v. Ector, 246 Ga. 30, 31, 268 S.E.2d 621, distinguishing Maynard v. Marshall, 91 Ga. 840(2), 18 S.E. 403. See also Dorsey v. West, 159 Ga.App. 274, 275, 283 S.E.2d 314, supra (reversed on other grounds in 248 Ga. 790, 285 S.E.2d 703, supra).

The Wests have appealed the August 31, 1982 "nunc pro tunc" judgment against them. This appeal is defended by the appellees Dorsey on the ground that the appeal is untimely because the final judgment of the trial court, on remittitur from this court, was rendered in March 1982, and the August 31 order was merely nunc pro tunc and hence only "related back" to March. See Walden v. Walden, 128 Ga. 126, 57 S.E. 323. If this appeal is timely, it raises interesting questions, which we will address solely upon the status of this case as being one involving a penalty. We will state at the outset that no grounds authorize us to rule that the $2,013.81 money judgment was incorrect as to amount. Held:

1. This appeal is timely. The August 31, 1982 order granting money judgment to the Dorseys was not nunc pro tunc, although it purported to be.

"The meaning of a nunc pro tunc judgment is to enter now a judgment which was rendered and should have been recorded at a previous time.... A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered ... but such entry cannot be made to serve the office of ... supplying nonaction on the part of the court.... Where the pleadings present no question that should be submitted to a jury, the judgment may be entered nunc pro tunc, but the entry must be based on some previous judicial act...." (Emphasis supplied.) Davis & Shulman, Georgia Practice & Procedure, § 17-6, pp. 267-268 (4th ed.); and cases cited.

The records and pleadings in this case may disclose without dispute that the Wests had lent the Dorseys $9,700 and that the Dorseys had paid $2,013.81 on the loan, but these facts lay impotent in the record and would do so forever until the trial court made a judgment out of them, as it had been instructed to do. The trial court's remittitur order of March 5, 1982, did not make such a judgment. No execution could be made upon it; it certainly could not be appealed. See Givens v. Gray, 124 Ga.App. 152, 183 S.E.2d 29. The August 31 order granting the Dorseys a money judgment supplied a non-action and still omitted to enter judgment forfeiting the Wests' principal and interest. This order contained at last something to appeal by either party, if there was any error in it. See Cordele Ice Co. v. Sims, 120 Ga. 428, 431, 48 S.E. 12. The September 15 notice of appeal from the August 31 order was timely.

2. Was the August 31 penalty judgment, giving the Dorseys judgment in the specific amount they had paid on the loan, appealable solely on the basis that a law repealing the penalty had become effective before the direction of this court was complied with? The answer must be yes.

The decisions of the Supreme Court and this court became the law of the case (OCGA § 9-11-60(h)) and were binding upon the trial court. Though the law penalizing the Wests had been changed, we think the trial court was bound to follow the mandate of the Court of Appeals. See White v. Ga. Power Co., 247 Ga. 256, 258(2), 274 S.E.2d 565.

If the final appellate decision had been one of affirmance merely, with nothing more to be done below, it would have been a final disposition of the case with no right of review, even if the remittitur was not made the judgment of the trial court. Pearle Optical v. State Board of Examiners, 219 Ga. 856, 136 S.E.2d 371; Fed. Investment Co. v. Ewing, 166 Ga. 246, 247, 142 S.E. 890. But the ultimate decision of the Court of Appeals was one reversing the trial court and mandating further action by the trial court. Where the appellate decision is a reversal, the case does not stand finally disposed of, but remains in the jurisdiction of the trial court until some further proper action is taken. John A. Roebling's Sons Co. v. Southern Power Co., 145 Ga. 761(1), 89 S.E. 1075. The cause is still pending for further proceedings, or until what is de facto ordered to be done, by the appellate court's reversal, is done. Berrien County Bk. v. Alexander, 154 Ga. 775, 777-778, 115 S.E. 648; Roebling's Sons Co., supra; Perdue v. Anderson, 137 Ga. 512, 514, 73 S.E. 1050; Davis House, Inc. v. Jennings, 112 Ga.App. 185, 186, 144 S.E.2d 476.

We do not recite the foregoing principles and cases to contradict what was said in Shepherd v. Shepherd, 243 Ga. 253, 254-255, 253 S.E.2d 696, where the Supreme Court held that on its prior reversal of that case without direction, the reversal was a final disposition. We think there is no conflict in the more ancient principles announced by the Supreme Court and the Shepherd case. The Shepherd case merely forbade a party to circumvent an appellate disposition by improperly amending his allegations, Wilson v. Missouri State Life Ins. Co., 184 Ga. 184, 185(3), 190 S.E. 552. No penalty or forfeiture was involved and no new law lifting the penalty was in issue. Wilson, supra, p. 186(4), 190 S.E. 552.

All these cases are consistent that what the appellate court orders to be done, expressly or implicitly, must in fact be done; but if, on an appellate reversal what is done on remittitur is itself reviewable, there is no final judgment until that time for review has passed. There was no final judgment in this case until the time had passed for review of the trial court's actions upon remittitur from this court's reversal. Calhoun v. State Hwy. Dept., 223 Ga. 65, 67, 153 S.E.2d 418. The Dorseys had no vested right in the penalty itself, or any part of it (Southern Discount Co. v. Ector, supra). They had no more superior vested right in it merely because it was established by appellate decisions interpreting the penalty statute, where the trial court's first judgment denying the penalty was reversed and there remained more to be done in assessing the entire penalty. The penalty was not made a judgment until August 1982, and was not choate until the time had run for review of the last appealable judgment. See Bank of St. Mary's v. State of Ga., 12 Ga. 475, 493.

In Bank of St. Mary's, supra, p. 481, it was held "a penalty cannot be recovered, after the [repeal] of the law which imposes it...." The whole penalty in this case is forfeiture of all principal and interest as a punishment. See 91 C.J.S. "Usury," § 142, p. 748. There are not two penalties in this case; there is only one. The punishment, forfeiture, necessarily includes the obligation to pay back any payments made on the loan by the borrower. So long as there was no enforceable judgment requiring the Wests to pay back loan payments, there was no "forfeiture of all principal and interest" as a matter of fact....

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4 cases
  • Dorsey v. West
    • United States
    • Georgia Supreme Court
    • January 31, 1984
    ...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......
  • City of Fairburn v. Cook
    • United States
    • Georgia Court of Appeals
    • March 16, 1990
    ...1988 judgment "contained at l[e]ast something to appeal by either party, if there was any error in it. [Cit.]" West v. Dorsey, 167 Ga.App. 233, 235(1), 305 S.E.2d 840 (1983), rev'd on other grounds, Dorsey v. West, 252 Ga. 92, 311 S.E.2d 816 (1984). We therefore find that the City timely fi......
  • West v. Dorsey, 65727
    • United States
    • Georgia Court of Appeals
    • March 12, 1984
    ...Durwood T. Pye, Atlanta, for appellants. Michael C. Ford, Atlanta, for appellees. BIRDSONG, Judge. The decision of this court at 167 Ga.App. 233, 305 S.E.2d 840, having been reversed by the Supreme Court on certiorari, it is hereby ordered that the case be remanded and appropriate judgment ......
  • Kabiri v. Aronov, A94A2040
    • United States
    • Georgia Court of Appeals
    • January 24, 1995
    ... ... judgment is to enter now a judgment which was rendered and should have been recorded at a previous time ... ' [Cits.]" (Emphasis omitted.) West v. Dorsey, 167 Ga.App. 233, ... 235, 305 S.E.2d 840 (1983). Accordingly, the nunc pro tunc order entered on April 20, 1994, effectively corrects ... ...

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