Continental Casualty Co. v. Bump
Continental Casualty Co. v. Bump
070rehearing
On Motion for Rehearing.
Defendant in error (claimant) as a part of his motion for rehearing also filed a suggestion of diminution of the record and along with it a certified copy of a supersedeas bond filed by the plaintiff in error on May 14, 1962, (one day after the bill of exceptions was certified) together with the clerk’s certificate that all costs had been paid. He contends that this supersedeas divested the lower court of jurisdiction to enter the second order referred to in the main opinion.
However valid this contention may appear to be, it will not withstand a close examination of the cases and the applicable statute. It is true that once there is a compliance with the requirement of Code § 6-1002 as was done by plaintiff in error here, the supersedeas is automatic (i.e., arises by operation of
The cases are not clearly definitive as to whether a supersedeas merely “suspends the enforcement” of the judgment excepted to (Barnett v. Strain, 153 Ga. 43 (1), 111 SE 574, and citations; West v. Gainesville Bank, 158 Ga. 640, 641, 123 SE 870; Tanner v. Wilson, 184 Ga. 628, 633-637, 192 SE 425, and citations; Campbell v. Gormley, 185 Ga. 65, 66, supra) or makes further action by the trial court “coram non judice and void.”
Motion for rehearing denied.
The breath of this pronouncement when measured by the facts of the cases appears to be unwarranted. However, cases of both types refer to “lack of jurisdiction” in the lower court.
Opinion of the Court
We do not here deal with an appeal from a decision of the board, such as is contemplated in Code § 114-710.
Thus the posture of the case is that the defendants now have in the superior court all of the relief that they could ask for here. The correctness of the first judgment of the superior court “simply becomes moot and a reversal would not benefit the plaintiff in error.” Gillon v. Johns, 105 Ga. App. 599, 600 (125 SE2d 70) and citations.
The propriety of the second judgment is not now before us.
Since the action of plaintiff in error in obtaining the second judgment has rendered the questions made in this bill of exceptions moot, the costs on appeal are taxed against it. Gillon v. Johns, 105 Ga. App. 599, supra.
Writ of error dismissed.
The applicable portion of this statute reads: “In case of an appeal from the decision of the Board, said appeal shall operate as a supersedeas, if the employer has complied with the provisions of this Title respecting insurance, and no such employer shall be required to make payment of the award involved in the questions made in the case so appealed, until such questions at issue therein shall have been fully determined in accordance with the provisions of this Title.”
Providing, inter alia, that: “Upon presentation to the court of a certified copy of a decision of the Board ending, diminishing or increasing a weekly payment under the provisions of this Title, particularly of section 114-709, the court shall revoke or modify the [original] order or decree to conform to such decision of the Board.” (Emphasis added). This statutory provision creates an exception to the rule that a judgment may not be vacated or modified after expiration of the term of the court during which it was entered.
Reference
- Full Case Name
- CONTINENTAL CASUALTY COMPANY v. BUMP
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- Published