Roper v. Motors Insurance

139 Ga. App. 788 | Ga. Ct. App. | 1976

Quillian, Judge.

Appeal was taken from an order denying the plaintiffs motion for imposition of attorney fees incurred by the plaintiff in resisting the defendant’s motion for new trial and appeal to this court. See Motors Ins. Corp. v. Roper, 136 Ga. App. 224 (221 SE2d 55). This judgment was entered on December 10,1975. At that time this case was pending on certiorari to the Supreme Court. Held:

"Once a final judgment is entered, from which a party files a notice of appeal and pays all costs there is an automatic supersedeas which deprives the trial court of jurisdiction to modify or alter the judgment of the case pending on appeal.” Philips &c. Corp. v. Production 70’s, 133 Ga. App. 765, 766 (1) (213 SE2d 35), and cit; Code Ann. § 6-1002 (Ga. L. 1965, pp. 18, 22). Here the motion was brought in and under the same case which was on appeal at the time the motion was passed on. The motion prayed for "the entry of an award of additional attorney fees.” Thus, in effect it sought to modify or enlarge the prior award. See Code Ann. § 56-1206 (Ga. L. 1960, pp. 289, 502; 1962, p. 712), which requires that the amount of reasonable attorney fees be determined by the trial jury and included in any judgment rendered in the action.

Argued April 12, 1976 Decided September 9, 1976 Rehearing denied October 5, 1976 Jones, Wilson & Tomlinson, Robert P. Wilson, for appellant. A. Mims Wilkinson, Jr., for appellee. Carter, Ansley, Smith & McLendon, Melburne D. McLendon, Alston, Miller & Gaines, Ronald L. Reid, Neely, Freeman & Hawkins, Edgar A. Neely, Jr., amicus curiae.

The judgment rendered while the cause was pending before the Supreme Court is nugatory. Hence, there is nothing from which the plaintiff may appeal.

Appeal dismissed.

Deen, P. J., and Webb, J., concur.