Robinson v. Vickers, 160 Ga. 362

Robinson v. Vickers

160 Ga. 362 | Ga. | 1925

Dissenting Opinion

Russell, C. J.,

dissenting. This case has been here before (Vickers v. Robinson, 157 Ga. 731), and we affirmed the judgment of the lower court'and held, in effect, that Vickers should make a deed to Robinson et al. It is very plain from the record that Vickers did not make the deed when Robinson tendered the money, which we held he should have done, because he believed the land was going higher. It is likewise very plain that the purpose of the present proceeding is to get the land back and keep the payments made by Robinson, because farming land has everywhere declined in value. Ilnder these circumstances, which are plain from the record, I am the more inclined to enforce what I understand to be the law. The case now before us is one to amend the decree formerly entered before the case was brought to the Supreme Court. In the exercise of due diligence, Vickers should have seen to the perfection of the decree upon the first trial. If for any reason the court erred in formulating the decree, this fact should have been brought to the attention of the court at the time the decree was rendered. “The error committed might have been corrected by a proper motion made during the term, and, in the event of the overruling of such motion, by a direct bill of exceptions to this court; but it was too late, after the term at which this judgment was rendered, to attack it by motion.” Crow v. Am. Mtg. Co., 92 Ga. 815, 817 (19 S. E. 31). The motion in this case was made in vacation. See also Booth v. Mohr, 122 Ga. 333 *364(5) (50 S. E. 173), which calls special attention to the variation of the rale where a case has been carried to the Supreme Court, as this case has been. See also Hightower v. Williams, 104 Ga. 608, 610 (30 S. E. 862); Jefferson v. Hamilton, 69 Ga. 401, 404; Burke v. White, 141 Ga. 72, 73 (80 S. E. 311). Other cases could be cited bearing upon this point.

Lead Opinion

Gilbert, J.

I. A judgment may be amended by order of the court to make it conform to the verdict and the issues made by the pleadings. Sanders v. Williams, 75 Ga. 283.

2. Such defects, amounting to irregularities in the judgment, and apparent on the face of the record, may be corrected after the expiration of the term. Latimer v. Sweat, 125 Ga. 475 (2), 477 (54 S. E. 673), and authorities cited. In the present case the amendment had the effect merely of carrying out the intendment of the original verdict and decree. A decree for specific performance must bind both parties. When one institutes a proceeding to require the other to specifically perform a contract and obtains such a decree, the movant must also be bound to specifically perform. The proceeding is in equity. He who would have equity must do equity.

3. Amendments to judgments, of the character mentioned above, may be made even after an affirmance of the ease in the Supreme Court. Moses v. Eagle &c. Mfg. Co., 68 Ga. 241.

4. The contention that the court was without jurisdiction to amend the judgment, because the petition was presented to the judge and rule nisi issued in vacation, is without merit. The order amending the judgment was passed at and during term time.

5. No error is shown.

■Judgment affirmed.

All the Justices concur, except Himes, J., disqualified, and Russell, G. J., dissenting. E. L. Stephens, for plaintiffs in error. E. W. Jordan and A. L. Hatcher, contra.