Wood v. Delta Ins. Co.
| Decision Date | 25 May 1960 |
| Docket Number | No. 38293,No. 2,38293,2 |
| Citation | 114 S.E.2d 883,101 Ga.App. 720 |
| Parties | D. E. WOOD et al. v. DELTA INSURANCE COMPANY |
| Court | Georgia Court of Appeals |
Marson G. Dunaway, Jr., Rockmart, for plaintiff in error.
Dunaway, Embry & Shelfer, william S. Shelfer, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
The terms of the Superior Court of Polk County are by statute set to commence on the fourth Mondays of February and August. Accordingly, the February term of court commenced on February 23, 1959. On February 26, 1959, the court entered an order in favor of the defendant and against the plaintiff. A motion to set aside this order was tendered to the trial judge on August 17, 1959, but was not signed by the judge or filed in the court until August 26, the August term having commenced on August 24, 1959 A rule nisi was set for hearing on October 1, 1959, and on February 4, 1960, the motion was denied, and this judgment is assigned as error.
'It is a general principle of law that a court can not set aside or alter its final judgment after the expiration of the term at which it was entered; but this does not apply where proceedings to vacate the judgment were begun during the term in which the judgment was rendered.' Maxwell v. Cofer, 201 Ga. 222, 39 S.E.2d 314. In that case the motion to set aside the judgment was prepared, allowed by the trial court, a rule nisi signed setting the case for hearing, the motion filed and service had on the opposite party during the same term at which the judgment was entered. Whether or not all of these things have to be done before it can be said that proceedings to vacate the judgment were begun during the term, it would appear that at least the motion would have to be filed, and, if the sanction of the judge was necessary, both allowed and filed during the term, and merely tendering the paper to the trial judge, where it is neither allowed nor filed until a subsequent term of court, is insufficient to allow the judge to retain that discretion which is vested in him to set aside judgments only during the term at which they are entered. The motion to vacate and set aside the order cannot be considered as one made at the same term of court and within the plenary discretion of the trial judge.
2. Amendments to pleadings may be allowed at any stage of the proceedings where the trial court has jurisdiction of the case, and this includes that stage of the case where, after a general demurrer has been overruled in the trial court, and that judgment has been reversed in the appellate court, the amendment is offered before the judgment of the appellate court is made the judgment of the trial court. Walker v. Cook 17 Ga. 126. Where the case has been tried and finally disposed of by verdict and judgment the trial court loses jurisdiction of any further proceedings whatever until the remittitur from the appellate court is received in the trial court; in such event, where on the appeal a judgment overruling a general demurrer to the petition is also excepted to and that judgment reversed, the trial court has jurisdiction to receive and consider the amendment only between the time that the remittitur from the appellate court is received in the trial court and the time such remittitur is made the judgment of the trial court. Kiser v. Kiser, 214 Ga. 849, 108 S.E.2d 265. On the other hand, where before trial a judgment overruling a general demurrer is alone appealed, the trial court still has jurisdiction of the main case, and accordingly has jurisdiction to receive and consider an amendment to the petition at any time during such appeal before fore the judgment of the appellate court reversing the judgment overruling the demurrer is made the judgment of the trial court. Jackson v. Security Ins. Co., 177 Ga. 631, 170 S.E. 787; Ware v. Martin, 208 Ga. 330, 66 S.E.2d 737; Southeastern Wholesale Furniture Co. v. Atlanta Metallic Casket Co., 89 Ga.App. 271, 66 S.E.2d 68; Cauble v. Weimer, 101 Ga.App. 313, 113 S.E.2d 641.
3. (a) In the present case the judgment of the trial court overruling the general demurrer to the petition was appealed prior to the trial of the case and that judgment reversed by this court. Delta Ins. Co. v. Wood, 99 Ga.App. 58, 107 S.E.2d 693. After the decision of this court reversing that judgment and before the remittitur was received and made the judgment of the trial court, the plaintiff amended his petition in an effort to meet the deficiency pointed out in the decision of this court. No objection to the amendment and no renewed demurrer appears in this record. The case was placed on the trial calendar, called in its order for trial, and continued by the court because of the nonappearance of the defendant. The next day the court passed an order as follows: ...
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