44 Ga. App. 639 | Ga. Ct. App. | 1932
In the city court of Hall county, H. T. Oliver, for use of Mrs. Jot Allen, brought an action against Firemen’s Insurance Company to recover damages upon a policy of insurance against loss by windstorms, cyclones and tornadoes. A verdict and judgment were rendered in favor of the plaintiff for $620 principal, $155 penalty, and $155 attorney’s fees. By a former decision of this court the judgment of the trial court overruling a demurrer to the defendant’s petition to vacate and set aside the verdict and judgment was reversed. Oliver v. Firemen’s Insurance Co., 42 Ga. App. 99 (155 S. E. 227). The plaintiff’s motion to dismiss the defendant’s pending motion for a new trial was “overruled and disallowed” by the trial court, and, on final hearing, the defendant’s motion for a new trial was “ refused and denied and overruled and a new trial denied.” The case is again before this court (upon the main bill of exceptions) for review of the judgment refusing and overruling the motion for a new trial; and (upon the cross-bill of exceptions) for review of the judgment overruling and disallowing the plaintiff’s motion to dismiss the motion for a new trial.
The novel and vital question raised by the records before us is whether, under former decisions of this court, and especially under the derision rendered when this case was previously here, the defendant’s petition to vacate and set aside the verdict and judgment rendered against it was, to all intents and purposes, “in effect a motion for a new trial,” or in effect “a motion for new trial” in some qualified sense rendering it permissible for the defendant, in the circumstances of this case, to avail itself of both those remedial measures, successively, or, perhaps, simultaneously. It is urged by counsel for the defendant below that this court has permitted to creep into its decisions an erroneous doctrine relating to the nature of motions to set aside judgments; that this doctrine is without authority to support it in this State; and that its harmful
A case which seems to us to recognize the distinction emphasized in the quoted excerpt from the opinion and judgment of the learned trial judge is that of Holmes v. Reville, 27 Ga. App. 552 (109 S. E. 417), in which the court says: “Where a judgment is based upon a verdict or finding on facts, as the verdict or finding must be set aside before a motion to set aside the judgment can be granted for any cause not apparent on the face of the record or pleadings (Ayer v. James, 120 Ga. 578, 580, 48 S. E. 154), a motion to set aside the judgment, based solely upon matters of evidence, such as, in the instant case, the want of evidence as to the amount of interest due, is tantamount to a motion -for a new trial on the general ground that the verdict or finding is contrary to evidence or without evidence to support it, and thus is controlled by the rules of law governing such motions.” (Cases cited.) Notwithstanding any individual view of the question that the writer of this opinion may entertain, and notwithstanding that there seems to be sufficient authority upon which a contrary view might be based, the controlling fact exists that the former decision of this court in this ease must be accepted as the law of the case, that is to say: “In so far as the petition to vacate and set aside the previous verdict and judgment was based upon matters not appearing upon the face of the record, under the rulings by this court in Grogan v. Deraney, 38 Ga. App. 287, 289 (143 S. E. 912), and the numerous cases there cited, it was in effect a motion for a new trial and subject to all the rules governing such a motion. Not being accompanied by a brief of the evidence adduced on the previous trial, the petition was fatally defective in'that re
If the motion to vacate and set aside the verdict and judgment was “in effect a motion for a new trial” in the sense that it was required to be accompanied by a brief of the evidence, or otherwise be deemed to be fatally defective, then we think it should follow, as the night the day, that the filing and prosecution to final judgment of such a motion to vacate and set aside thé verdict and judgment exhausted the right of the defendant to file and prosecute his motion for a new trial. We base this conclusion upon the authority of the ease of Wimpy v. Gaskill, 76 Ga. 41, which we must accept as a binding precedent upon this court, where the Supreme Court decided: “ Where a motion for new trial was presented and overruled, and at the same term of .court a similar motion was again presented, the court was right in refusing to entertain it and in dismissing it.” And in its opinion the court observed: “The court was right to refuse to entertain the motion and to dismiss the same; it was res adjudicata and requires no demonstration.” In the instant case the trial judge denied the motion to dismiss the motion for a new trial, and also denied the motion for a new trial itself. Our view is, of course, that the trial judge was bound by the former decision in this case to sustain the motion to dismiss the motion for a new trial; and his error in refusing to dismiss the motion rendered the further proceedings in the case nugatory.
This court not being satisfied that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error that damages be awarded is denied.
Judgment on cross-bill of exceptions reversed; main bill of exceptions dismissed.