O.C.G.A. § 5-6-10 (2019)

Annotations

Cross references. - Filing of remittitur and judgment, Uniform Superior Court Rules, Rule 38. JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION EFFECT OF AFFIRMANCE EFFECT OF REVERSAL General Consideration Court of Appeals opinions binding on trial court. - Trial court, regardless of the court’s good intentions, cannot decide to disregard the opinions of the Court of Appeals. Eastgate Assocs. v. Piggly Wiggly S., Inc., 200 Ga. App. 872, 410 S.E.2d 129, cert. denied, 200 Ga. App. 896, 410 S.E.2d 129 (1991). Second appeal cannot enlarge scope of first appeal. - Party cannot, on a second appeal, by challenging the judgment entered on remittitur, enlarge the scope of the previous appeal. Womack Indus., Inc. v. B & A Equip. Co., 204 Ga. App. 32, 418 S.E.2d 411 (1992). Remittitur, whenever presented, is proper evidence to court below of decision of Supreme Court, and decision thus evidenced is to be respected and in good faith carried into effect. Hartley v. Hartley, 212 Ga. 62, 90 S.E.2d 555 (1955). Cases are ‘‘sent back’’ to trial court by transmittal and filing of remittitur in clerk’s office. Hagan v. Robert & Co.

Assocs., 222 Ga. 469, 150 S.E.2d 663 (1966). Filing of remittitur immediately reestablishes jurisdiction. - Filing of a remittitur in the office of the clerk of a trial court immediately reinvests the court with jurisdiction for all purposes over the case to which such remittitur relates, though good practice requires that the trial court cause the remittitur to be entered upon the trial court’s minutes. Chambers v. State, 262 Ga. 200, 415 S.E.2d 643 (1992). Carrying remittitur into effect is not discretionary with presiding judge, but is a matter of statutory mandate and compulsion. Hartley v. Hartley, 212 Ga. 62, 90 S.E.2d 555 (1955). Trial court cannot vary or modify direction given. - When in affirming judgment, the Supreme Court gives direction to the trial court to amend the trial court’s decree in a certain specified manner, trial court on receipt of remittitur has no power or discretion to vary or modify direction given, but must enter judgment

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in compliance with instructions contained therein. Estes v. Estes, 206 Ga. 530, 57 S.E.2d 587 (1950); Akins v. State, 237 Ga. 826, 229 S.E.2d 645 (1976). Superior court order making judgment of Georgia Supreme Court its own judgment closes state suit. Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga.), aff ’d, 483 F.2d 1395 (5th Cir. 1973). New hearing cannot be had before remittitur from appellate court is filed in lower court. Lyon v. Lyon, 103 Ga. 747, 30 S.E. 575 (1898). Effect of loss of remittitur before entry on minutes of lower court. Jones v. State, 67 Ga. 240 (1881). Awarding costs upon return of remittitur which makes no reference to costs. - It is within supreme jurisdiction of judge of superior court, upon return of remittitur in case brought by bill of exceptions (see O.C.G.A. §§ 5-6-49 and 5-6-50) to Supreme Court, and in which no reference is made to subject of costs in cases to incorporate in judgment costs allowed by law as costs in Supreme Court, as well as costs of officers of superior court for their services in transmission of bill of exceptions and transcript of record to Supreme Court. Anderson v. Beasley, 169 Ga. 720, 151 S.E. 360 (1930). Effect of failure to file appellate court’s order. - When the trial court which originally reentered summary judgment lacks jurisdiction over the case, the remittitur of the appellate court remanding for the entry of a new order not having been filed with the clerk of the lower court, the trial court’s order is a nullity. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981). Trial court was without jurisdiction to order the defendant to appear for trial when remittitur had not been filed. Nave v. State, 171 Ga. App. 165, 318 S.E.2d 753 (1984). Cited in Hadden v. Fuqua, 194 Ga. 621, 22 S.E.2d 377 (1942); Gay v. Crockett, 219 Ga. 248, 132 S.E.2d 673 (1963); Rahal v. Titus, 110 Ga. App. 122, 138 S.E.2d 68 (1964); Stone v. Peoples Bank, 128 Ga. App. 796, 197 S.E.2d 925 (1973); Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Ansley v. Atlanta Suburbia Estates, Ltd.,

231 Ga. 640, 203 S.E.2d 861 (1974); Keener v. MacDougall, 233 Ga. 881, 213 S.E.2d 835 (1975); Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 235 S.E.2d 729 (1977); Gold Kist, Inc. v. Wilson, 247 Ga. App. 107, 542 S.E.2d 126 (2000). Effect of Affirmance Affirmance denies trial court jurisdiction to grant new trial. - When judgment was entered for the plaintiff, who then filed a notice of appeal, and the defendant then filed a cross appeal as well as a motion for new trial in the trial court, and the Court of Appeals then affirmed the trial court’s judgment, the trial court could not reassert the trial court’s jurisdiction and grant a new trial to the defendant. The fact that the case made its way through the appeal processes of the Court of Appeals effectively cut off the defendant’s right to pursue the defendant’s motion for a new trial. Thus, the proper means of placing this issue before the appellate court would be to file a motion for a stay of the direct appeal with the Court of Appeals, and if the stay is denied, then to petition for writ of certiorari. Housing Auth. v. Van Geeter, 252 Ga. 196, 312 S.E.2d 309 (1984). Upon affirmance of trial court’s final judgment, rights involved are conclusively adjudicated. - When final judgment of trial court is affirmed by Supreme Court, and not remanded to trial court for further proceedings, controversy is at an end; rights of parties, so far as those rights are involved in litigation, are conclusively adjudicated. Pearle Optical of Monroeville, Inc. v. Georgia State Bd. of Exmrs. in Optometry, 219 Ga. 856, 136 S.E.2d 371 (1964). Affirmance without remand gives judgment full effect. - When final judgment of trial court is affirmed on appeal, and not remanded to trial court, further proceedings on case in appellate court and in trial court are precluded and judgment of lower court is in full force and effect, precisely the same as if no appeal had been taken. Pearle Optical of Monroeville, Inc. v. Georgia State Bd. of Exmrs. in Optometry, 219 Ga. 856, 136 S.E.2d 371 (1964).

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Effect of Affirmance (Cont’d) After affirmance of final decree trial court cannot entertain ex parte motions to alter decree. - Affirmance of final decree of trial court by Supreme Court without condition or direction leaves trial court on return of remittitur without jurisdiction to entertain or pass upon ex parte motion to add to or amend decree. Pearle Optical of Monroeville, Inc. v. Georgia State Bd. of Exmrs. in Optometry, 219 Ga. 856, 136 S.E.2d 371 (1964). Effect of Reversal Reversal without direction results in vacation of judgment and trial de novo. Worley v. Travelers Indem. Co., 121 Ga. App. 179, 173 S.E.2d 248 (1970). Judgment of reversal, without more, operates only to vacate orders and decree as therein stated, and to reinvest trial court with jurisdiction, on filing of remittitur in office of clerk of trial court. It neither serves as a substitute for findings for appellant, nor enlarges powers of trial judge in reference thereto. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939). Effect of reversal by Supreme Court is to place case where it stood prior thereto; and thereafter the trial court should enter order sustaining exceptions of law, and a finding sustaining exceptions of fact when jury trial is not demanded. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939). Filing of remittitur merely annuls and vacates orders which have been reversed, leaving examiner’s report standing as before, and restoring exceptions to their original status - neither sustained nor overruled, but ripe for disposition according to law. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939). Lower court’s entry of judgment on remittitur reversing denial of dispositive motion. - If appellate court has reversed lower court’s denial of motion dispositive of case - such as motion to dismiss or motion for summary judgment - entry by lower court of judgment on remittitur constitutes final judgment and terminates case, whereas generally in

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all other situations case continues in lower court until final judgment. Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga.), aff ’d, 483 F.2d 1395 (5th Cir. 1973). When the lower court has entered a judgment on remittitur reversing the denial of a dispositive motion, the judgment on remittitur is dispositive and the losing party cannot amend or dismiss. Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga.), aff ’d, 483 F.2d 1395 (5th Cir. 1973). Judgment on remittitur reversing decree not dispositive of case. - When the appellate court reverses the lower court’s decree which was not dispositive of the case, and further findings of fact and conclusions of law are necessary, party which loses on appeal may amend pleadings or dismiss case even after entry by lower court of judgment on remittitur. Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga.), aff ’d, 483 F.2d 1395 (5th Cir. 1973). When the appellate court reverses lower court’s denial of motion dispositive of case and transmits remittitur back to lower court, before entry by lower court of judgment on remittitur party that lost on appeal can amend that party’s pleadings, or can even dismiss the case entirely. Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga.), aff ’d, 483 F.2d 1395 (5th Cir. 1973). Effect of reversal of trial court’s sustaining of motion to vacate judgment. - When trial court, after hearing motion to set aside prior order in pending case vacates judgment complained of, and on appeal trial court’s decision is reversed without direction, judgment of appellate court is final. Upon remittitur from appellate court being filed in trial court, issue is res judicata, and lower court has no authority to allow movant to amend the movant’s motion. Nor can the lower court hear further evidence or consider any other matter that would otherwise affect the finality of the judgment of the Supreme Court. Shepherd v. Shepherd, 243 Ga. 253, 253 S.E.2d 696 (1979). Repayment of funds tendered in attempt to satisfy trial court’s judgment. - Appellate court’s order reversing the trial court’s judgment in favor of the plaintiff was enforceable, pursuant to

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O.C.G.A. § 5-6-10, and the trial court correctly ordered the plaintiff to return money paid by the defendant bank in an

attempt to satisfy the judgment prior to appeal. Blanton v. Bank of Am., 263 Ga. App. 284, 587 S.E.2d 411 (2003).

RESEARCH REFERENCES Am. Jur. 2d. - 5 Am. Jur. 2d, Appellate Review, §§ 265, 593 et seq. ALR. - Remittitur on which court has conditioned refusal of new trial or reversal, as inuring to benefit of codefendant failing to move for new trial or to appeal, 160 ALR 984. Appellate court’s power to order

remittitur of portion of actual damages awarded at trial while sustaining trial award of punitive damages, 97 ALR2d 1145. Financial worth of one or more of several joint defendants as proper matter for consideration in fixing punitive damages, 9 ALR3d 692.