Westbrook v. Nationwide Ins. Co., s. 41818

• Decision Date: 16 February 1966
• Docket Number: 41819,Nos. 41818,No. 2,s. 41818,2
• Citation: 113 Ga.App. 299,147 S.E.2d 819
• Parties: Ralph WESTBROOK v. NATIONWIDE INSURANCE COMPANY. NATIONWIDE INSURANCE COMPANY v. Ralph WESTBROOK. . Division
• Court: Georgia Court of Appeals

Page 819

147 S.E.2d 819

113 Ga.App. 299

Ralph WESTBROOK v. NATIONWIDE INSURANCE COMPANY.

NATIONWIDE INSURANCE COMPANY v. Ralph WESTBROOK.

Nos. 41818, 41819.

Court of Appeals of Georgia. Division No. 2.

Feb. 16, 1966.

Rehearing Denied March 9, 1966.

Syllabus by the Court

The trial court has no jurisdiction to entertain an amendment to a petition after a bill of exceptions has been certified and a judgment overruling a general demurrer reversed by the appellate court until such time as the remittitur on such judgment is received by a trial court, if there has been a verdict and judgment in the case and no part of it is pending in the trial court at the time. The rule is otherwise if the demurrer ruling is appealed prior to the trial of the case.

The petition in this case was filed on May 18, 1962; demurrers were overruled, the case preceded to verdict and judgment in favor of the plaintiff; the defendant filed its bill of exceptions assigning error on judgments overruling its general demurrer to the petition and its motion for a new trial; this Court on June 21, 1965, held that the petition did not state a cause of action and the general demurrer should have been sustained (Nationwide Ins. Co. v. Westbrook, 112 Ga.App. 137, 144 S.E.2d 199); the rehearing was denied July 21, 1965, and the Supreme Court denied the plaintiff's application for certiorari on September 17, 1965. Meanwhile, the plaintiff offered an amendment to the petition in the trial court which was ordered filed 'subject to the rights of defendant' on September 18, 1965; the remittitur from the Court of Appeals was filed in the trial court on September 30 and made the judgment of that court on October 4. The latter order sustained the defendant's renewed demurrer and dismissed the petition 'subject only to the validity and sufficiency of plaintiff's amendment allowed September 17, 1965.' A final order of dismissal was entered on November 19. From this judgment the plaintiff appealed.

Marshall L. Fountain, Louisville, for appellant.

Fulcher, Fulcher, Hagler, Harper & Reed, J. Walker Harper, Augusta, Abbot & Abbot, Louisville, for appellee.

DEEN, Judge.

This decision turns on the procedural question of whether the trial court, at the time the plaintiff filed the amendment in an attempt to cure the defects in the petition pointed out by this court, had any jurisdiction over the case which it might exercise by allowing a pleading to be filed therein. If obviously had such jurisdiction between September 30 and October 4, after the remittitur was received in the trial court and before the final order dismissing the case. The trial court also has jurisdiction to allow amendments to pleadings while the case is pending in an appellate court on issues preliminary to trial but where there has as yet been no trial, since such event the court may, if it wishes, proceed with the trial taking a chance on the action becoming nugatory if there is an adverse ruling as to the matter from which the appeal was taken. Welsch v. Wilson, 218 Ga. 843, 131 S.E.2d 194; Ware v. Martin, 208 Ga. 330, 66 S.E.2d 737; Cauble v. Weimer, 101 Ga.App. 313, 113 S.E.2d 641; Wood v. Delta Ins. Co., 101 Ga.App. 720, 114 S.E.2d 883; Peoples Loan & Finance Corp. v. Owens, 101 Ga.App. 655, 155 S.E.2d 117 (special concurrence, p. 659). But the rule has been stated to be otherwise where the demurrer ruling is not appealed until after an adverse verdict and judgment. 'In the present case, after the defendant's demurrer to the petition was overruled, the cause proceeded to trial, a judgment was rendered for the plaintiff, and the defendant's motion for new trial as amended was denied. The bill of exceptions in this court assigned error on both the overruling of the demurrer and the denial of the motion for new trial as amended. Where the case has been tried, and is no longer pending in the trial court, the trial court's jurisdiction over the cause is lost upon the signing of a bill of exceptions.' Kiser v. Kiser, 214 Ga. 849, 852, 108 S.E.2d 265, 267.

From a logical viewpoint this distinction can be justified neither in terms of legal philosophy nor of trial procedure. The plaintiff (who originally had a judgment holding that his petition without amendment stated a cause of action) has no voice in saying whether or when the defendant will appeal that ruling. If the defendant chooses to appeal before trial and proves to be right, the plaintiff may amend. If he chooses to wait for a final judgment and then appeal, the...