Opinion
29831.
DECIDED JANUARY 27, 1943.
Motion to vacate judgment; from Fulton civil court — Judge Carpenter. July 9, 1942.
Mose S. Hayes, for plaintiff.
Powell, Goldstein, Frazer Murphy, James K. Rankin, for defendant.
1. Where the plaintiff brought suit against the defendant for a stated amount and the latter filed a cross-action to recover a greater sum, and the court directed a verdict for the defendant on his cross-action, and the jury to whom the principal action was submitted returned a verdict finding in favor of the plaintiff in the sum of $150 and, as directed by the court, also finding in favor of the defendant on his cross-action in the sum of $2075, principal and interest, and one judgment, in favor of the defendant, was entered for the difference between the two sums, and this court, on an appeal brought by the plaintiff in the principal action ( 66 Ga. App. 843, 19 S.E.2d., 350) reversed, without direction, the judgment of the trial court for the reason that the issue as made by the cross-action should have been submitted to the jury, the effect of the judgment of this court, without direction, was not to cause a final judgment to be entered in the trial court but to set aside in toto the judgment of the trial court as rendered and to grant a new trial. Woods v. Jones, 56 Ga. 520; Anderson v. Clark, 70 Ga. 362 (2); Lyon v. Lyon, 103 Ga. 747, 750 ( 30 S.E. 575); United States Fidelity c. Co. v. Clark, 187 Ga. 774, 782 ( 2 S.E.2d 608); Union Central Life Insurance Co. v. Trundle, 65 Ga. App. 553, 556 ( 15 S.E.2d 909).
2. Accordingly, where upon the filing in the trial court of the remittitur from this court reversing, without direction, a judgment as reported in 66 Ga. App. 843 ( 19 S.E.2d 350), the trial court entered up a final judgment for $150 in favor of the plaintiff in the principal action, and the defendant, who had obtained a judgment in the trial court for the difference between the sum found in its favor by the jury, as directed by the trial court, and the sum which it found in favor of the plaintiff, filed, within the statutory period (Code, § 3-702; Baker v. McCord, 173 Ga. 819 (3), 162 S.E. 110; Byers v. Byers, 41 Ga. App. 671 (2), 154 S.E. 456), a motion to set aside the judgment entered by the trial court upon receipt of the remittitur from this court, the grounds of which were, among others, that the judgment was void because it was shown on the face of the record that it was based upon a judgment of this court which had reversed the former judgment of the trial court without direction, and not a judgment rendered as a result of any new hearing but was rendered only because the trial court mistakenly assumed that the judgment of this court was a final judgment in favor of the plaintiff in the principal action, the trial court did not err in overruling the demurrer of the plaintiff in the principal case to the motion to set aside or in vacating the judgment entered in favor of the plaintiff in the principal case upon the remittitur from this court.
Judgment affirmed. Stephens, P. J., and Felton, J., concur.