Worley v. Travelers Indem. Co.

• Decision Date: 12 February 1970
• Docket Number: No. 3,No. 45035,45035,3
• Parties: L. C. WORLEY v. TRAVELERS INDEMNITY COMPANY
• Court: Georgia Court of Appeals

Page 248

173 S.E.2d 248

121 Ga.App. 179

L. C. WORLEY v. TRAVELERS INDEMNITY COMPANY.

No. 45035.

Court of Appeals of Georgia, Division No. 3.

Feb. 12, 1970.

Syllabus by the Court

Where a case is reversed on a review by the appellate courts without direction, the effect of said judgment is to revoke, annul, set aside and vacate the judgment in the court below appealed from, thus requiring a hearing de novo on the issues. In such case the litigants are restored to the position in which they were before the judgment was pronounced.

On the forner appearance of this case in this court Travelers Indemnity Co. v. Worley, 119 Ga.App. 537, 168 S.E.2d 168, after the trial court had directed the verdict against the defendant in a suit for additional premiums due as determined by 'an audit at the end of the policy year,' and also against the defendant as to his cross action based on the insurance contract, but left the amount of the verdict to be determined by a jury which returned a verdict for the plaintiff in the amount of $300, this court reversed the judgment holding that the uncontradicted evidence showed on its face a greater amount was due. There was no specific direction to the lower court.

On the return of the remittitur from this court to the lower court, without hearing evidence or having a new trial, the lower court entered a judgment against the defendant on the petition and cross action, and awarded a sum certain for the plaintiff. The appeal is from that judgment.

Albert A. Roberts, East Point, for appellant.

Greene, Buckley, DeRieux & Jones, Hugh Robinson, Jr., Atlanta, for appellee.

EVANS, Judge.

The resulting decision which is the subject matter of this appeal apparently results from a ministerpretation ofCode § 6-1804, which is as follows: 'The decision of the appellate court, and any direction awarded in the case, shall be certified by the clerk to the court below, under the seal of the court, and shall be respected, and in good faith carried into full effect, by the court below. The remittitur shall contain nothing more, except the costs in the appellate court.'

However, it is quite clear from the decisions hereafter cited that the court erred in failing to have a trial de novo in the court below. Doubtless it was felt that the language used by this court authorized him to enter the judgment here on appeal. 'If the judgment of the superior court is reversed on every point of exception, or on a single on only, it is entirely vacated; and this is done by placing on the minutes of the superior court, a transcript of the judgment of the Supreme Court. This done, the case stands for trial, de novo, as in the first instance, unless otherwise disposed of, by the order of this court.' Walker v. Dougherty, 14 Ga. 653(1). In Miller v. Jourdan, 43 Ga. 316, we find the following ruling: 'The legal effect of the reversal of the judgment by this court of the judgment of the court below, based upon the verdict of a jury, was to have granted a new trial in the case, and it was error to have adjudged the rights of the parties to this litigation upon the motion.' See also American Associated Companies v. Vaughan, 210 Ga. 141(2), 78 S.E.2d 43; Fennell v. Fennell, 210 Ga. 153, 78 S.E.2d 524. Mayor and Council of Monroe v. Fidelity and Deposit Co., 50 Ga.App. 865(1, 4), 178 S.E. 767, came here on exception to the direction of a verdict. After reversal the court entered judgment for the plaintiff in error. This court held: 'Although under the ruling of the appellate court as applied to the law and the evidence, the verdict, which had been directed for the plaintiff, was without evidence to support it and contrary to law, and under the law and the evidence a verdict for the defendant was demanded as a matter of law, the case nevertheless (after reversal) stands on the docket for trial * * * The court erred in disallowing the amendment and in rendering a judgment for the defendant without the intervention of a jury.'

In 1878 Judge Bleckley in Schley v. Schofield & Son, 61 Ga. 528, 529, at page 532, speaking for the court, held that a straight judgment of reversal required a new trial although the first opinion had reversed on the ground that plaintiff in error was entitled to judgment as a matter of law since he held priority of lien. He then said: 'The reasons given for a reversl, whether expressed in the judgment or in the opinion, are to be respected and appied in conducting the new trial, without any direction to that effect; but to embody these reasons in a new judgment based on the former trial, where there was been no verdict and no special finding of the facts, requires a direction from this court in express terms. And what we direct, is to be ascertained from the judgment which we render; the direction is judgment, not mere opinion, and as judgment it must appear. What the judgment ought to have contained is manifest, in the present case, from the opinion of the court * * *; but what the judgment does contain is a...