Durham v. Pitts

Full title: DURHAM et al. v. PITTS

Court: Court of Appeals of Georgia

Date published: Mar 10, 1960

113 S.E.2d 779 (Ga. Ct. App. 1960)

113 S.E.2d 779

Opinion

37953.

DECIDED MARCH 10, 1960. REHEARING DENIED MARCH 28, 1960.

Motion to enter judgment. Butts Superior Court. Before Judge Brown. May 30, 1959.

Hurt, Gaines, Baird, Peek Peabody, W. Neal Baird, W. M. Redman, for plaintiffs in error. Ernest M. Smith, Alfred D. Fears, Kennedy, Kennedy Seay, Harvey J. Kennedy, contra.

BELL, Judge.

1. Exception is taken to the judgment of the trial court in denying the defendants' motion to enter a judgment in their favor predicated on a verdict which was returned in a previous trial of the same case at a different term and 6 months and 18 days prior to the filing of the motion. The motion is fatally defective because it affirmatively declares material developments precluding it which ensued subsequently to the particular verdict to which the motion is directed and which occurred prior to the filing of the motion. These material developments are: (1) a more recent trial; (2) the rendering therein of a verdict and judgment against the defendants; and (3) such verdict and judgment rendered in the more recent trial have not been vacated. The defendants' motion did not pray that the verdict and judgment be set aside.

2. Moreover, under the holding in Durham v. Pitts, ante, neither in that nor in the instant case is cause shown sufficient to require the setting aside of the latter verdict and judgment.

3. The defendants' motion that a judgment be entered on a verdict claimed to be in their favor, filed more than 6 months after such verdict was rendered, and filed subsequently to a retrial of the cause at a later term, at which retrial a verdict and judgment was entered, came too late. Code § 110-302 provides: "In all cases when a verdict shall be rendered, the party in whose favor it may be or his attorney shall be allowed to enter and sign up judgment thereon at any time within four days after the adjournment of the court at which such verdict was rendered, for the amount thereof and all costs recoverable thereon."

The judgment of the trial court denying the defendants' motion to enter judgment for the defendants based on the prior verdict is affirmed.

Judgment affirmed. Felton, C. J. and Nichols, J., concur.

DECIDED MARCH 10, 1960 — REHEARING DENIED MARCH 28, 1960.