436 S.E.2d 819 | Ga. Ct. App. | 1993
Lead Opinion
On March 13, 1992, Carl Dykes brought the instant action against the appellant, Bobby Fabian and William Woodall as president and vice president of Fabian and Woodall, Inc. (the corporation), seeking reimbursement for monies paid as a guarantor on a September 30, 1982, promissory note from said corporation to The Coastal' Bank. Fabian responded to the complaint, asserting several defenses and denying liability based upon a release executed by the bank within two months of the execution of the promissory note. Woodall was never located or served with a summons or a copy ,of the complaint, and the action proceeded to trial against Fabian.
After the presentation of evidence by Dykes, Dykes moved for a directed verdict. The trial court deferred ruling on the motion, indicating that the court would submit to the jury for its consideration the issue of whether Fabian had been released from the promissory note. After Fabian presented evidence in his defense, the jury deliberated on the issue of the release, and returned a verdict in favor of Fabian, finding that Fabian had been released from the debt. Thereafter, Dykes renewed his motion for a directed verdict, or in the alternative, a j.n.o.v., and the trial court entered a j.n.o.v., finding in favor of Dykes as a matter of law because, as a surety, Dykes had an independent right to collect from his principal, Fabian, under OCGA § 10-7-41.
In the case sub judice, after initially reserving its ruling on Dykes’ motion for directed verdict, the trial court entered a judgment in favor of Dykes prior to entering a judgment on the jury’s verdict that Fabian had been released from the promissory obligation. Accordingly, we are bound by our recent decisions in Anaya and Wright, and must reverse the trial court’s judgment, with direction that judgment be entered on the jury’s verdict. Thereafter, the parties will be entitled to pursue post-judgment remedies, including the right to file an appeal from any adverse final judgment in the case.
Judgment reversed with direction.
OCGA § 10-7-41 specifically provides that “[pjayment by a surety or endorser of a debt past due shall entitle him to proceed immediately against his principal for the sum paid, with interest thereon, and all legal costs to which he may have been subjected by the default of his principal.”
Dykes died following the filing of this appeal. On June 21, 1993, this court substituted
As we stated in Anaya, when a ruling on a motion for directed verdict is reserved by the trial court and ruled on after the verdict, it is treated as a j.n.o.v.
Concurrence Opinion
concurring specially.
I am constrained to agree with the majority in this case because it correctly applies this court’s decision in Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (417 SE2d 423) (1992). However, I continue to believe that Anaya was wrongly decided for the reasons set forth in my dissent in that case. Here, as in Anaya, we return a case to the trial court for the entry of a judgment upon the jury’s verdict to correct a purely technical defect which, when corrected, will bring this case back to us for consideration of the merits. As I wrote in Anaya, “(a)ll of this is totally unnecessary and could be obviated by simply reaching the merits of the . . . appeal at the present time.”