Scope of verdict.

- Verdict must comprehend the whole issue or issues submitted to the jury. Wood v. Milly McGuire's Children, 17 Ga. 361, 63 Am. Dec. 246 (1855).

Verdict must conform to pleadings and must not be inconsistent. Miller v. Ray, 84 Ga. App. 251, 65 S.E.2d 923 (1951).

If a verdict and judgment are supported by neither pleadings nor proof, the verdict and judgment are illegal and void. Johnson v. Walton, 236 Ga. 675, 225 S.E.2d 55 (1976).

Relief cannot be granted for matter not alleged or prayed for and a verdict and judgment which award relief beyond such pleadings and prayer is illegal and subject to be set aside. This is the general rule in this state, and is based upon the principle that the court pronounces its decree secundum allegata et probata (according to what is alleged and proved). Barbee v. Barbee, 201 Ga. 763, 41 S.E.2d 126 (1947); Wade v. Wade, 122 Ga. 389, 149 S.E.2d 816 (1966); Pray v. Pray, 223 Ga. 215, 154 S.E.2d 208 (1967).

Effect of verdict's silence on issue.

- Verdict's silence on issue of pain and suffering demonstrates intent to award plaintiff nothing for this element of damage. McAfee v. Fickling & Walker Dev. Co., 123 Ga. App. 647, 182 S.E.2d 146 (1971).

Incomplete verdict.

- Verdict finding that the plaintiff was entitled to punitive damages but acknowledging that the jury was unable to determine the amount of such damages was an incomplete verdict. Kane v. Cohen, 182 Ga. App. 485, 356 S.E.2d 94 (1987).

Judge empowered to send jury back into deliberation to clarify verdict.

- When it is determined that verdict was ambiguous, uncertain, or did not cover issues in the case, it is not error for the trial judge to require the jury to return to the juror's room, under proper instructions, and make the juror's verdict certain. Lowery v. Morton, 200 Ga. 227, 36 S.E.2d 661 (1946).

Whenever a verdict is ambiguous and uncertain in the verdict's meaning, or does not cover a substantial issue made by the pleadings in the case upon which proof is offered, it is proper to have the jury retire again for the purpose of rendering another verdict, under proper instructions from the court. Colley v. Dillon, 158 Ga. App. 416, 280 S.E.2d 425 (1981).

Court cannot supply substantial omission in verdicts. Wood v. Milly McGuire's Children, 17 Ga. 361, 63 Am. Dec. 246 (1855); Mayo v. Keaton, 78 Ga. 125, 2 S.E. 687 (1886).

Gratuitous finding by jury on matters not raised by pleadings.

- When part of the verdict in a complaint for land was a gratuitous finding relating to establishment of a line, but was not in conflict with the first part of the verdict which was a finding in favor of the defendant, that part of the verdict upon the only issue that could have been submitted to the jury, a finding in favor of the defendant, was good and enforceable, and the remaining part of the verdict, dealing with matters not involving any issue raised by the pleadings, was beyond the legitimate province of the jury and would be disregarded as surplusage. Patterson v. Fountain, 188 Ga. 473, 4 S.E.2d 38 (1939).

Construction of general verdict.

- General verdict is to be construed in light of the pleadings, issues made by the evidence, and charge of the court; all presumptions are in the verdict's favor. Morris v. Bell, 100 Ga. App. 341, 111 S.E.2d 270 (1959); Price v. Georgia Indus. Realty Co., 132 Ga. App. 107, 207 S.E.2d 556 (1974).

What general verdict covers.

- When petition alleges both general damages and special damages, a general verdict covers both. Price v. Georgia Indus. Realty Co., 132 Ga. App. 107, 207 S.E.2d 556 (1974).

Complaint as to amount of verdict.

- There is no principle of law that will justify a defendant in complaining of a verdict against the defendant on the ground that the verdict should have been for a larger amount. Jones & Phillips, Inc. v. Patrick, 11 Ga. App. 67, 74 S.E. 700 (1912).

Effect of verdict when counts are good and bad.

- When there are two good counts in a declaration and one defective count, and evidence on the trial substantially supports allegation in the good counts, and a general verdict is rendered for the plaintiff, intendment of the law is that the jury found their verdict on the good counts and not on the defective count. Bradshaw v. Perdue, 12 Ga. 510 (1853).

Setting aside verdict.

- Verdict will be set aside as contrary to law when the verdict fails to cover all issues made by the pleadings and the proofs submitted in support thereof. Tompkins v. Corry, 14 Ga. 118 (1853); Pickron v. Garrett, 73 Ga. App. 61, 35 S.E.2d 540 (1945).

Verdict which failed to cover issues made by pleadings and which was too indefinite for enforcement should have been set aside on proper motion for that purpose, made during the term at which the verdict was rendered, though subsequent to the verdict's reception by the court and the verdict's entry upon the minutes. Abbott v. Roach, 113 Ga. 511, 38 S.E. 955 (1901).

Impropriety of verdict raiseable by motion for new trial.

- Argument that judgment is not authorized by verdict or warranted by pleadings is not a good ground of motion for new trial, but that the verdict does not cover or is contrary to the issues made by the pleadings is a question which may be raised by motion for new trial. Manry v. Stephens, 190 Ga. 305, 9 S.E.2d 58 (1940).

That a verdict is contrary to law and contrary to the issues made by the pleadings is a question which may be raised by a motion for new trial. Hubbard v. Whatley, 200 Ga. 751, 38 S.E.2d 738 (1946).

Statutory claim case.

- In trial of a statutory claim case, sole issue is whether property is subject or not subject to the fi. fa., and the verdict in such case, whether found by the jury or directed by the court, cannot stand unless the verdict is so phrased as to determine this issue with definiteness. Moseley v. Binford, 31 Ga. App. 513, 121 S.E. 127 (1924).

Verdict for one defendant against another.

- Verdict for one defendant against another defendant, when there are no pleadings or altercations in the case between the defendants, is void, especially when there is no verdict at all for the plaintiff against either, though the sole issues submitted were between the plaintiff and the defendants. Maples v. Hoggard, 58 Ga. 315 (1877).

Judgments when defendants joined in same action.

- There is no law authorizing separate judgments to be rendered by different tribunals against different defendants, and at different terms when the defendants are joined in the same action. Norris v. Pollard, 75 Ga. 358 (1885).

Entry of decree nunc pro tunc.

- Trial court had authority to enter divorce decree nunc pro tunc as of a date prior to death of a party when the jury had previously returned a verdict and the cause was ripe for judgment. Moore v. Moore, 229 Ga. 600, 193 S.E.2d 608 (1972).

Cure of defects in pleadings by verdict.

- Unless a pleading shows on the pleading's face that a cause of action does not in fact exist or is so utterly defective that it could not be amended at all, or the defect is of such character as renders unenforceable or meaningless a verdict and judgment based thereon, defects in the pleading are cured by the verdict on the theory that there is a conclusive presumption that the jury had before the jury sufficient evidence to authorize the verdict on every essential ingredient necessary for the verdict's rendition which would have been admissible or relevant under any proper amendment. Juneau v. Juneau, 98 Ga. App. 330, 105 S.E.2d 913 (1958).

Defendant cannot complain of verdict which the defendant has specifically requested. Stancil v. State, 158 Ga. App. 147, 279 S.E.2d 457 (1981).

Cited in Owen v. Anderson, 54 Ga. App. 53, 186 S.E. 864 (1936); Calhoun v. Babcock Bros. Lumber Co., 199 Ga. 171, 33 S.E.2d 430 (1945); Gibson v. Gibson, 204 Ga. 437, 49 S.E.2d 877 (1948); DOT v. Great S. Enters., Inc., 137 Ga. App. 710, 225 S.E.2d 80 (1976).

Am. Jur. 2d.

- 75B Am. Jur. 2d, Trial, § 1543 et seq.

15 Am. Jur. Pleading and Practice Forms, Judges, § 80.

C.J.S.

- 89 C.J.S., Trial, § 981 et seq.

ALR.

- Judgment against executor or administrator qualified in one state as binding upon an executor or administrator of the same decedent, qualified in another, 3 A.L.R. 64.

Power of legislature to set aside or impair judgment, 3 A.L.R. 450.

Power to enter judgment nunc pro tunc after death of party, 3 A.L.R. 1403; 68 A.L.R. 261.

Foreign judgment based upon or which fails to give effect to a judgment previously rendered at the forum or in a third jurisdiction, 44 A.L.R. 457; 53 A.L.R. 1146.

Decree abating nuisance as affecting owner not served with process, 63 A.L.R. 698.

Verdict as affected by agreement in advance among jurors to abide by less than unanimous vote, 73 A.L.R. 93.

Provision in judgment for taxes as regards future penalties, 93 A.L.R. 793.

Power of court to mold or amend verdict with respect to the parties for or against whom it was rendered, 106 A.L.R. 418.

Right of court to accept verdict upon one or more counts of an indictment or information when jury is unable to reach a verdict on all counts or is silent as to part of counts, and effect of such acceptance, 114 A.L.R. 1406.

Rule of practical construction as applicable to judgment, 120 A.L.R. 868.

Failure of one or more jurors to join in answer to special interrogatory or special verdict as affecting verdict, 155 A.L.R. 586.

Merger of earlier in later judgment rendered in the same jurisdiction, 158 A.L.R. 859.

Propriety of court questioning jury as to meaning of their verdict, or for purpose of correcting it in matters of form, 164 A.L.R. 989.

Coercive effect of verdict-urging by judge in civil case, 19 A.L.R.2d 1257.

Receipt of verdict in civil case in absence of trial judge, 20 A.L.R.2d 281.

Effect of verdict "for plaintiff" in action against multiple defendants, 47 A.L.R.2d 803.

Verdict for money judgment which finds for party for ambiguous or no amount, 49 A.L.R.2d 1328.

Judgment ambiguous or silent as to amount of recovery as defective for lack of certainty, 55 A.L.R.2d 723.

Effect on verdict in civil case of haste or shortness of time in which the jury reached it, 91 A.L.R.2d 1220.

Submission of special interrogatories in connection with general verdict under Federal Rule 49(b), and state counterparts, 6 A.L.R.3d 438.

Verdict-urging instructions in civil case stressing desirability and importance of agreement, 38 A.L.R.3d 1281.

Verdict-urging instructions in civil case commenting on weight of majority view or authorizing compromise, 41 A.L.R.3d 845.

Verdict-urging instructions in civil case admonishing jurors to refrain from intransigence, or reflecting on integrity or intelligence of jurors, 41 A.L.R.3d 1154.

Waiver of objection to verdict.

- Irregularity in form of verdict is waived in absence of objection at time of the verdict's rendition because any formal error can be corrected before the jury is discharged. Bissell v. State, 153 Ga. App. 564, 266 S.E.2d 238 (1980).

Waiver of right to special verdict.

- Party who, after invoking a special verdict, allows a general verdict to be received and published in open court, in the presence of the party's counsel, without objection or motion to have the jury retired with direction to find a special verdict, will be deemed to have waived the right to a special verdict. Livingston v. Taylor, 132 Ga. 1, 63 S.E. 694 (1908), overruled on other grounds, Monteith v. Story, 255 Ga. 528, 341 S.E.2d 1 (1986).

Form of verdict.

- When no request was made for a different form of verdict, it was not error as a matter of law for the court to fail to instruct the jury as to some other form of verdict which was also a correct form. Fidelity & Cas. Co. v. Mangum, 102 Ga. App. 311, 116 S.E.2d 326 (1960).

Harmless error not ground for new trial.

- When the foreperson stated that the jury found "with the auditor," and the jury was polled as to the verdict reached, any error in failing to write out a verdict in favor of the defendant and "against the auditor" was harmless and would not be a ground of a motion for new trial such as to authorize reversal of the case since an error to be harmful must be accompanied by an injury. Gaulding v. Courts, 90 Ga. App. 472, 83 S.E.2d 288 (1954).

Am. Jur. 2d.

- 75B Am. Jur. 2d, Trial, § 1205 et seq.

C.J.S.

- 88 C.J.S., Trial, § 645.

Purpose of section.

- This section is specific authority for receiving verdicts, by agreement, otherwise than in open court. Malcolm Bros. v. Pollock, 181 Ga. 687, 183 S.E. 917, answer conformed to, 52 Ga. App. 772, 184 S.E. 659 (1936).

Return of sealed jury verdict to sheriff per agreement.

- When in a civil case, after the jury has taken the case under advisement and before the jury renders the verdict, the trial judge leaves court and goes to the judge's home in another county, having directed in open court that the verdict shall be sealed and "returned" to the sheriff, with consent of counsel for both sides, verdict afterward rendered and "returned" to the sheriff and never received in open court or other than as indicated was not a nullity. Malcolm Bros. v. Pollock, 181 Ga. 687, 183 S.E. 917, answer conformed to, 52 Ga. App. 772, 184 S.E. 659 (1936).

Implied consent to sealed verdict.

- Counsel's consent to rendition of a sealed verdict in absence of the judge may be implied, when the judge states in the counsel's presence that, if there is no objection, the judge will be absent from court and go to the judge's home in another county, and that, should the jury make a verdict, the verdict should be sealed and returned to the sheriff. Malcolm Bros. v. Pollock, 52 Ga. App. 772, 184 S.E. 659 (1936).

Cited in Smith v. Jones, 185 Ga. 236, 194 S.E. 556 (1937).

Am. Jur. 2d.

- 75B Am. Jur. 2d, Trial, § 1533 et seq.

C.J.S.

- 89 C.J.S., Trial, § 992 et seq.

Amendment of verdicts to obviate avoidance.

- To obviate avoidance of verdicts, verdicts may be amended to make the verdicts conform to the pleadings; and when part is illegal, that may be written off. Central R.R. v. Freeman, 75 Ga. 331 (1885).

Amendment of misnomer in judgment at subsequent court term.

- When the verdict against the defendant in attachment was in favor of "Albany Hardware & Mill Supply Company" as the plaintiff, judgment rendered thereon against the garnishee which was entered in the name of "Albany Mill Supply Company" was, at a subsequent term of court, amendable on motion of the plaintiff by striking therefrom "Albany Mill Supply Company" as the plaintiff, and substituting therefor "Albany Hardware & Mill Supply Company." Merchants' Grocery Co. v. Albany Hdwe. & Mill Supply Co., 44 Ga. App. 412, 160 S.E. 658 (1931).

Verdict of the jury should be upheld if it can be done in accordance with the law. Bob Lairsey Ins. Agency v. Allen, 180 Ga. App. 11, 348 S.E.2d 658 (1986).

Verdict not set aside when no timely objection made.

- Verdict which is not as specific as the verdict could be but which is capable of being reduced to judgment will not be set aside on appeal when no timely objection was made thereto. Todhunter v. Price, 248 Ga. 411, 283 S.E.2d 864 (1981).

Cited in Bridges v. Donalson, 165 Ga. 228, 140 S.E. 497 (1927); Nottingham v. Nicholson, 40 Ga. App. 754, 151 S.E. 533 (1930); Nelson Bros. v. Webb, 176 Ga. 842, 169 S.E. 111 (1933); Durden v. Durden, 58 Ga. App. 46, 197 S.E. 493 (1938); Davidson v. Turner, 191 Ga. 197, 12 S.E.2d 308 (1940); Rushing v. Jones, 68 Ga. App. 300, 22 S.E.2d 675 (1942); Pierson v. M. & M. Bus. Co., 74 Ga. App. 537, 40 S.E.2d 561 (1946); Johns v. League, Duvall & Powell, Inc., 202 Ga. 868, 45 S.E.2d 211 (1947); Carawan v. Carawan, 203 Ga. 325, 46 S.E.2d 588 (1948); Fields v. Fields, 203 Ga. 561, 47 S.E.2d 640 (1948); Finch v. State, 87 Ga. App. 426, 74 S.E.2d 121 (1953); Field v. Liberty Mut. Ins. Co., 92 Ga. App. 621, 89 S.E.2d 573 (1955); Taylor v. Taylor, 212 Ga. 637, 94 S.E.2d 744 (1956); Rosenthal v. O'Neal, 108 Ga. App. 54, 132 S.E.2d 150 (1963); Georgia Power Co. v. Rabun, 111 Ga. App. 63, 140 S.E.2d 568 (1965); National Upholstery Co. v. Padgett, 111 Ga. App. 842, 143 S.E.2d 494 (1965); Moon v. Moon, 222 Ga. 650, 151 S.E.2d 714 (1966); Bateman v. Bateman, 224 Ga. 20, 159 S.E.2d 387 (1968); Bragg v. Bragg, 224 Ga. 294, 161 S.E.2d 313 (1968); McLane v. McLane, 224 Ga. 748, 164 S.E.2d 821 (1968); Norred v. Dispain, 119 Ga. App. 29, 166 S.E.2d 38 (1969); Resolute Ins. Co. v. Brayton, 119 Ga. App. 412, 167 S.E.2d 398 (1969); Davis v. State, 119 Ga. App. 740, 168 S.E.2d 784 (1969); West Ga. Pulpwood & Timber Co. v. Stephens, 128 Ga. App. 864, 198 S.E.2d 420 (1973); Fitts v. Fitts, 231 Ga. 528, 202 S.E.2d 414 (1973); Jackson v. Riviera Dev. Corp., 130 Ga. App. 146, 202 S.E.2d 545 (1973); Bradley v. Bradley, 233 Ga. 83, 210 S.E.2d 1 (1974); Ford Motor Co. v. Lee, 137 Ga. App. 486, 224 S.E.2d 168 (1976); Sturdivant v. Polk, 140 Ga. App. 152, 230 S.E.2d 115 (1976); Butler v. Butler, 238 Ga. 292, 232 S.E.2d 562 (1977); McGarr v. McGarr, 239 Ga. 640, 238 S.E.2d 427 (1977); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977); LeBlanc v. Easterwood, 242 Ga. 99, 249 S.E.2d 567 (1978); Chandler v. Chandler, 243 Ga. 496, 255 S.E.2d 11 (1979); Cotts v. Cotts, 245 Ga. 138, 263 S.E.2d 163 (1980); O'Neill v. Western Mtg. Corp., 153 Ga. App. 151, 264 S.E.2d 691 (1980); Brown v. Leasing Int'l, Inc., 154 Ga. App. 616, 269 S.E.2d 106 (1980); Wellington v. Lenkerd Co., 157 Ga. App. 755, 278 S.E.2d 458 (1981); Swish Mfg. S.E., Inc. v. Wilkie, 158 Ga. App. 275, 279 S.E.2d 724 (1981); A.C. Gas Serv., Inc. v. Bickley, 160 Ga. App. 737, 288 S.E.2d 84 (1981); Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 329 S.E.2d 900 (1985); Rolle v. State, 177 Ga. App. 79, 338 S.E.2d 519 (1985); Chrysler Corp. v. Marinari, 177 Ga. App. 304, 339 S.E.2d 343 (1985); Fullard v. Southern Mut. Ins. Co., 191 Ga. App. 483, 382 S.E.2d 140 (1989); Redding v. State, 259 Ga. 871, 389 S.E.2d 227 (1990); Barnes v. Wall, 201 Ga. App. 228, 411 S.E.2d 270 (1991); Macon-Bibb County Bd. of Tax Assessors v. J.C. Penney Co., 239 Ga. App. 322, 521 S.E.2d 234 (1999); Hewitt Assocs., LLC v. Rollins, Inc., 308 Ga. App. 848, 708 S.E.2d 697 (2011).

Presumptions in favor of verdict.

- Presumptions are in favor of the validity of jury verdicts. Southern Ry. v. Oliver & Morrow, 1 Ga. App. 734, 58 S.E. 244 (1907); Browning v. State, 31 Ga. App. 150, 120 S.E. 649 (1923); David v. Marbut-Williams Lumber Co., 32 Ga. App. 157, 122 S.E. 906 (1924); North British & Mercantile Ins. Co. v. Parnell, 53 Ga. App. 178, 185 S.E. 122 (1936); Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497 (1937); Douglas Motor Co. v. Watson, 68 Ga. App. 335, 22 S.E.2d 766 (1942); Rowland v. Gardner, 79 Ga. App. 153, 53 S.E.2d 198 (1949); Parks v. Parks, 89 Ga. App. 725, 80 S.E.2d 837 (1954); Gough v. Gough, 238 Ga. 695, 235 S.E.2d 9 (1977).

After rendition of a verdict, all evidence and every presumption and inference arising therefrom must be construed most favorably towards upholding the verdict. Pepsi Cola Bottling Co. v. First Nat'l Bank, 248 Ga. 114, 281 S.E.2d 579 (1981).

Jury's verdict should stand. Shuman v. Strickland Transport-Leasing Co., 203 Ga. App. 456, 416 S.E.2d 885 (1992).

Burden is on the party attacking verdict to show the verdict's invalidity. Calhoun v. Babcock Bros. Lumber Co., 199 Ga. 171, 33 S.E.2d 430 (1945); Hunnicutt v. Hunnicutt, 182 Ga. App. 578, 356 S.E.2d 679 (1987); Zurich Am. Ins. Co. v. Bruce, 193 Ga. App. 804, 388 S.E.2d 923 (1989).

Verdicts should be construed to stand if practicable. Swain v. Georgia Power & Light Co., 46 Ga. App. 794, 169 S.E. 249 (1933); Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497 (1937); Douglas Motor Co. v. Watson, 68 Ga. App. 335, 22 S.E.2d 766 (1942); Jackson v. Houston, 200 Ga. 399, 37 S.E.2d 399 (1946); Powell v. Moore, 202 Ga. 62, 42 S.E.2d 110 (1947); Rowland v. Gardner, 79 Ga. App. 153, 53 S.E.2d 198 (1949); Parks v. Parks, 89 Ga. App. 725, 80 S.E.2d 837 (1954); Minor v. Ray, 127 Ga. App. 1, 193 S.E.2d 41 (1972); King v. Cox, 130 Ga. App. 91, 202 S.E.2d 216 (1973); Jordan v. Ellis, 148 Ga. App. 286, 250 S.E.2d 859 (1978); Shipman v. Horizon Corp., 151 Ga. App. 242, 259 S.E.2d 221 (1979); Suber v. Fountain, 151 Ga. App. 283, 259 S.E.2d 685 (1979); Herman v. Boyer, 154 Ga. App. 617, 269 S.E.2d 107 (1980).

Verdict is certain if verdict can be made certain. Giles ex rel. Jaques & Johnson v. Spinks, 64 Ga. 205 (1879); Cox v. State, 79 Ga. App. 202, 53 S.E.2d 221 (1949).

How to make verdict certain.

- Verdict may be made certain by what it contains or by the record. Rouse v. Chance & Hopkins, 27 Ga. App. 256, 108 S.E. 65 (1921); Smith v. Cooper, 161 Ga. 594, 131 S.E. 478 (1926); Swain v. Georgia Power & Light Co., 46 Ga. App. 794, 169 S.E. 249 (1933); Owen v. Anderson, 54 Ga. App. 53, 186 S.E. 864 (1936); Harrell v. Bowman, 69 Ga. App. 881, 27 S.E.2d 50 (1943); Jackson v. Houston, 200 Ga. 399, 37 S.E.2d 399 (1946); Minor v. Ray, 127 Ga. App. 1, 193 S.E.2d 41 (1972); King v. Cox, 130 Ga. App. 91, 202 S.E.2d 216 (1973).

Matters considered in construing verdict.

- Verdicts will be construed in light of the pleadings, issues made by the evidence, and the charge of the court. Harvey v. Head, 68 Ga. 247 (1881); Seifert v. Holt, 82 Ga. 757, 9 S.E. 843 (1889); Tifton, T. & G. Ry. v. Butler, 4 Ga. App. 191, 60 S.E. 1087 (1908); David v. Tucker, 140 Ga. 240, 78 S.E. 909 (1913); Browning v. State, 31 Ga. App. 150, 120 S.E. 649 (1923); McMillan v. Rodgers, 32 Ga. App. 647, 124 S.E. 354 (1924); Swain v. Georgia Power & Light Co., 46 Ga. App. 794, 169 S.E. 249 (1933); Story v. Howell, 85 Ga. App. 661, 70 S.E.2d 29 (1952); Wade v. Wade, 222 Ga. 389, 149 S.E.2d 816 (1966); Gough v. Gough, 238 Ga. 695, 235 S.E.2d 9 (1977).

Construction of verdict may be aided by consideration of pleadings and undisputed facts proved upon trial, but this rule of construction is to be resorted to only when the intent of the jury is not reasonably apparent from the language of the verdict itself. Ryner v. Duke, 205 Ga. 280, 53 S.E.2d 362 (1949).

Trial court's construction of verdict authorized.

- Trial court could find that by returning a verdict "in favor of the plaintiffs" in a medical malpractice suit brought by the parents for the wrongful death of a child, rather than "in favor of the defendant," the jury found that the doctor had breached a duty of care owed to the parents, that the doctor had been negligent, and that any contributory negligence by the mother was not the sole proximate cause of the child's death, but that the parents should not recover damages. Roberts v. Aderhold, 273 Ga. App. 642, 615 S.E.2d 761 (2005).

What constitutes sufficient verdict.

- Verdict which may, by reasonable construction, be understood, and on which legal judgment can be entered, is sufficient. Williams, Birnie & Co. v. Brown, 57 Ga. 304 (1876); Peninsular Naval Stores Co. v. State, 20 Ga. App. 501, 93 S.E. 159, cert. denied, 20 Ga. App. 832, 93 S.E. 159 (1917); Swain v. Georgia Power & Light Co., 46 Ga. App. 794, 169 S.E. 249 (1933); Harrell v. Bowman, 69 Ga. App. 881, 27 S.E.2d 50 (1943); Jackson v. Houston, 200 Ga. 399, 37 S.E.2d 399 (1946).

Verdicts capable of reduction to reasonable certainty.

- Verdicts are not to be set aside for indefiniteness if capable of being reduced to reasonable certainty by an application of ordinary canons of construction. Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390, 73 S.E. 522 (1912).

Verdicts are to be given a reasonable intendment and are not to be rendered ineffectual when the true meaning of the finding can be readily ascertained; in every instance, a verdict should be construed in the light of the maxim that that is certain which can be rendered certain. Owen v. Anderson, 54 Ga. App. 53, 186 S.E. 864 (1936); Cox v. State, 79 Ga. App. 202, 53 S.E.2d 221 (1949).

Verdicts are to be given a reasonable intendment. Gragg v. Hall, 164 Ga. 628, 139 S.E. 339 (1927).

Verdicts are to be upheld if capable of legal intendment, construed in light of the pleadings, the issues made by the evidence, and the charge of the court; the presumptions are in favor of the validity of a verdict, and if possible a construction will be given that will uphold the verdict. Pickron v. Garrett, 73 Ga. App. 61, 35 S.E.2d 540 (1945).

Reasonable intendment.

- Even though the verdict is somewhat confused, by a reasonable intendment the verdict may stand. Horne v. Guiser Mfg. Co., 74 Ga. 790 (1885).

Although a verdict may not be explicit or definite in the verdict's terms, if its intent is apparent from the pleadings and evidence, it must be construed with reference thereto. Jones v. Empire Furn. Co., 40 Ga. App. 556, 150 S.E. 563 (1929); Nottingham v. Nicholson, 42 Ga. App. 628, 157 S.E. 118 (1931); Dunson v. Harris, 45 Ga. App. 450, 164 S.E. 910 (1932); Powell v. Moore, 202 Ga. 62, 42 S.E.2d 110 (1947); Carithers v. Carithers, 202 Ga. 596, 43 S.E.2d 503 (1947); Sheldon v. Hargrose, 213 Ga. 672, 100 S.E.2d 898 (1957); Minor v. Ray, 127 Ga. App. 1, 193 S.E.2d 41 (1972); Carlson v. Holt, 152 Ga. App. 95, 262 S.E.2d 508 (1979).

How to determine reasonable intendment.

- In determining "reasonable intendment" of jury verdicts courts look to pleadings, issues made by evidence at trial, and charge of the court. Lingerfelt v. Hufstetler, 137 Ga. App. 723, 224 S.E.2d 827 (1976).

Plain verdict must speak for itself.

- When the verdict is plain and unmistakable in the verdict's legal effect, the verdict must speak for itself, unaided by any consideration of pleadings and facts proved upon trial for construction thereof. Turner v. Shackleford, 39 Ga. App. 49, 145 S.E. 913 (1928); Ryner v. Duke, 205 Ga. 280, 53 S.E.2d 362 (1949); Jolly v. Jolly, 137 Ga. App. 625, 224 S.E.2d 807 (1976).

Verdict which is not ambiguous must speak for itself. Anderson v. Green, 46 Ga. 361 (1872).

Uncertain verdict may be void.

- Verdict which is too uncertain to be basis of valid decree is void. Taylor v. Taylor, 195 Ga. 711, 25 S.E.2d 506 (1943).

Verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon; a judgment entered on such verdict will be set aside. Pickron v. Garrett, 73 Ga. App. 61, 35 S.E.2d 540 (1945); Thompson v. Ingram, 226 Ga. 668, 177 S.E.2d 61 (1970); Four Oaks Homes, Inc. v. Smith, 153 Ga. App. 326, 265 S.E.2d 76 (1980).

Contradictory verdict argument rejected.

- In the client's action against an attorney, alleging that the attorney obtained title to the client's house by fraud, the trial court properly denied the attorney's motion for a directed verdict and allowed the jury to decide if the client failed to exercise due diligence by failing to read papers the attorney gave the client to sign, and the appellate court rejected the argument that the jury's verdict was contradictory because the jury found the attorney liable for fraud in tort but not fraud in equity. Queen v. Lambert, 259 Ga. App. 385, 577 S.E.2d 72 (2003).

Judgment must accord with intent of verdict.

- Judgment entered on verdict must follow true meaning and intent thereof; and when the judgment fails to do this and it is not possible to frame a judgment in accordance both with the true intent of the verdict and with the issues made by the pleadings, the verdict as rendered cannot be upheld. Garrett v. Wall, 29 Ga. App. 642, 116 S.E. 331 (1923).

Party could not redraft verdict.

- Jury found a breach of the duty of good faith, but did not find that a broker was the procuring cause of a lease negotiated by a corporation, or that the broker was entitled to recover in quantum meruit, which left the verdict for breach of the duty of good faith that the broker had abandoned; the broker was not allowed to redraft the verdict form that it presented to include a finding on procuring cause or quantum meruit and, thus, the corporation was entitled to judgment notwithstanding the verdict. Quantum Trading Corp. v. Forum Realty Corp., 278 Ga. App. 485, 629 S.E.2d 420 (2006).

Jury may be ordered to further deliberate void verdict.

- When an inconsistent and void verdict is returned by the jury, it is proper for the judge to refuse to receive the verdict, and to require the jury to return for further deliberations. Thompson v. Ingram, 226 Ga. 668, 177 S.E.2d 61 (1970); Kemp v. Bell-View, Inc., 179 Ga. App. 577, 346 S.E.2d 923 (1986).

Facts mandating affirmance of verdict on review.

- When only question for determination regarding verdict requires consideration of the evidence, and when no transcript of the evidence is contained in the record, judgment of the trial court must be affirmed. King v. Cox, 130 Ga. App. 91, 202 S.E.2d 216 (1973).

Verdict repugnant which exonerates true culprit but punishes mere participants.

- Verdict, exonerating one defendant in a trespass suit seeking damages for timber cut who actually committed the alleged trespass, and relieving that one defendant of all liability, and assessing damages against the other defendants who participated in the alleged actual trespass only through the acts of the defendant relieved, is inconsistent, repugnant, and must be set aside as null and void. Pickron v. Garrett, 73 Ga. App. 61, 35 S.E.2d 540 (1945).

Substantial certainty to common and reasonable intent essential.

- Verdicts are to be construed in light of pleadings and evidence, and all that is essential to a valid verdict is substantial certainty to a common and reasonable intent. Short v. Cofer, 161 Ga. 587, 131 S.E. 362 (1926); Jackson v. Houston, 200 Ga. 399, 37 S.E.2d 399 (1946); Powell v. Moore, 202 Ga. 62, 42 S.E.2d 110 (1947); King v. Cox, 130 Ga. App. 91, 202 S.E.2d 216 (1973); Patterson v. Loggins, 142 Ga. App. 868, 237 S.E.2d 469 (1977).

When verdict is ambiguous and susceptible of two constructions, one of which would uphold the verdict, and one of which would defeat the verdict, the verdict will not on this account be set aside, but will be given a construction which will uphold the verdict. Atlantic & B. Ry. v. Brown, 129 Ga. 622, 59 S.E. 278 (1907); David v. Marbut-Williams Lumber Co., 32 Ga. App. 157, 122 S.E. 906 (1924); Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497 (1937); Calhoun v. Babcock Bros. Lumber Co., 199 Ga. 171, 33 S.E.2d 430 (1945); Rowland v. Gardner, 79 Ga. App. 153, 53 S.E.2d 198 (1949); Parks v. Parks, 89 Ga. App. 725, 80 S.E.2d 837 (1954); Buck Creek Indus., Inc v. Williams-East, Inc., 130 Ga. App. 813, 204 S.E.2d 787 (1974); Brown v. Techdata Corp., 238 Ga. 622, 234 S.E.2d 787 (1977); Jordan v. Ellis, 148 Ga. App. 286, 250 S.E.2d 859 (1978); Suber v. Fountain, 151 Ga. App. 283, 259 S.E.2d 685 (1979).

Use of criminal verdict form in civil case.

- Fact that the form used by the jury in a civil case was the form generally used in criminal cases was not enough to invalidate the verdict if by inspection or by reasonable construction the court may apprehend the verdict's intendment. Haughton v. Judsen, 116 Ga. App. 308, 157 S.E.2d 297 (1967).

Surplusage and immaterial findings.

- Verdicts are to be upheld if capable of legal intendment, and surplusage or immaterial findings included may be disregarded. Tifton, T. & G. Ry. v. Butler, 4 Ga. App. 191, 60 S.E. 1087 (1908); McAfee v. Fickling & Walker Dev. Co., 123 Ga. App. 647, 182 S.E.2d 146 (1971).

Saving verdict by rejecting surplusage which causes indefiniteness.

- Maxim, "utile per inutile non vitiatur" (the useful is not vitiated by the useless), authorizes rejection of surplusage, and saves from imputation of uncertainty a verdict which is definite, complete, and certain upon rejection of the surplusage in which indefiniteness inheres. Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390, 73 S.E. 522 (1912); McMillan v. Rodgers, 32 Ga. App. 647, 124 S.E. 354 (1924).

Disregarding surplusage not error.

- When verdict stated "From the evidence presented we find equal negligence on the part of both parties, therefore, we conclude no verdict," judge did not err in entering judgment by disregarding words "no verdict," which were surplusage. Hales v. Sandersville Bldrs. Supply Co., 127 Ga. App. 558, 194 S.E.2d 281 (1972).

When part of verdict in complaint for land was gratuitous finding relating to establishment of a line, but was not in conflict with the first part of the verdict which was a finding in favor of the defendant, that part of the verdict upon the only issue that could have been submitted to the jury, a finding in favor of the defendant, was good and enforceable, and the remaining part of the verdict, dealing with matters not involving any issue raised by the pleadings, was beyond the legitimate province of the jury and would be disregarded as surplusage. Patterson v. Fountain, 188 Ga. 473, 4 S.E.2d 38 (1939).

Singular includes plural.

- Under common canon of construction that singular or plural number each includes the other, unless the contrary plainly appears from the context, a verdict finding in favor of "the defendant" will be construed as a finding in favor of all defendants when an action is against two or more persons. Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390, 73 S.E. 522 (1912); Neda Constr. Co. v. Jenkins, 137 Ga. App. 344, 223 S.E.2d 732 (1976); Carlson v. Holt, 152 Ga. App. 95, 262 S.E.2d 508 (1979).

Exception demanding construction of verdict and judgment against one defendant.

- When daughter-in-law brings trover action against the mother-in-law and father-in-law to recover the value of the automobile and the mother-in-law denied that she was in possession of the automobile and denied that she claimed any title to the automobile, thereby disclaiming any interest in the litigation, and the father-in-law admitted possession and claimed title to the automobile, and the trial court entered judgment for the daughter-in-law, the Court of Appeals, on writ of error, would construe the verdict and judgment as against the father-in-law only. Parks v. Parks, 89 Ga. App. 725, 80 S.E.2d 837 (1954).

Verdict finding property subject to mortgage execution properly construed.

- When the only issue involved in a case was whether the particular property levied upon was subject to the plaintiff's mortgage execution, and which verdict was in the language "we, the jury, find the property of the defendant is subject to the fi. fa.," was properly construed as a verdict finding the subject property levied upon. Dunson v. Harris, 45 Ga. App. 450, 164 S.E. 910 (1932).

Verdict silent on issue of pain and suffering demonstrates intent to award the plaintiff nothing for this element of damage. McAfee v. Fickling & Walker Dev. Co., 123 Ga. App. 647, 182 S.E.2d 146 (1971).

Failure to specify amount in verdict did not render void for uncertainty a verdict for the plaintiff in an action for a stated sum and interest thereon to which there was a plea of set-off. Southern Fittings & Foundry Co. v. Warfield, 18 Ga. App. 283, 89 S.E. 376 (1916).

Dollar amount not specified but capable of calculation.

- When verdict was for amount on face of note, and for interest to date of verdict, less credits on note, and an inspection of these credits showed the amount to be deducted, leaving the verdict as a net balance, if the verdict was not certain, the verdict could easily have been made certain. Smith v. Hightower, 3 Ga. App. 197, 59 S.E. 593 (1907).

Verdict rendered on trial of consolidated issues, finding for the plaintiff a given sum, was not so vague, indefinite, and uncertain as to render judgments entered therein void. Paulk v. South Ga. Bldg. & Inv. Co., 152 Ga. 646, 111 S.E. 26 (1922).

Interpretation of misnomer in verdict.

- When there is a close connection between a defendant and a corporation of which the defendant is majority owner and president, and the fact that on numerous occasions the plaintiff's rebuttal witness and on at least one occasion the plaintiff's attorney, referred to the company as "he," as if an individual defendant personified it, the reasonable intention of a verdict awarding "him" the sum of $2,000.00, when the individual owner had no counterclaim, is that the company should take $2,000.00 on one of the company's counterclaims. Buck Creek Indus., Inc. v. Williams-East, Inc., 130 Ga. App. 813, 204 S.E.2d 787 (1974).

Amount of damages capable of ascertainment.

- When measure of damages was correctly stated by the court to the jury, a new trial will not be granted because the verdict separated the amount of damage under the three heads of items named, the aggregate amount being amply supported by the evidence. Such verdict was sufficiently clear, certain, and definite. Telfair County v. Clements, 1 Ga. App. 437, 57 S.E. 1059 (1907).

Disregarding recommendation proper.

- When, upon trial of action to enjoin city from enforcing a fi. fa. for back taxes, a verdict is returned in favor of the city, but added to the verdict is a recommendation that past taxes be waived, the recommendation is purely surplusage without legal meaning or effect; and the court properly disregarded such recommendation and entered judgment in accord with the actual verdict refusing an injunction. Morrison v. Smith, 208 Ga. 521, 67 S.E.2d 577 (1951).

Restriction on verdict changes by reassembled jury.

- After jury has published verdict and dispersed, their expressions, on being reassembled, as to its intent could not change plain import and intent of the verdict. Ryner v. Duke, 205 Ga. 280, 53 S.E.2d 362 (1949).

Total principal and interest stated.

- Verdict finding a certain principal and interest and stating the total, although irregular, is not illegal. Tifton, T. & G. Ry. v. Butler, 4 Ga. App. 191, 60 S.E. 1087 (1908).

Verdict finding liability but failing to indicate an award of either no damages or a sum of damages was illegal and void since the jury's explanation of such failure indicated the jury's confusion as to the damages issue as well as the jury's intent to make some award of damages. Rucker v. Camden Tel. & Tel. Co., 181 Ga. App. 504, 353 S.E.2d 50 (1987).

When substantial justice was done, and verdict was for about the right amount, and the objection turned upon a purely technical idea, the court allowed the verdict to stand. Horne v. Guiser Mfg. Co., 74 Ga. 790 (1885).

Lump sum not void for uncertainty.

- When a verdict is supported by evidence on both counts sued on, the verdict is not void for uncertainty and ambiguity because the verdict is in a lump sum based on the two counts. Rowland v. Gardner, 79 Ga. App. 153, 53 S.E.2d 198 (1949).

Construction of verdict in trover action.

- Verdict in a trover action which reads, "We, the jury, find the property in dispute in favor of the defendant," will, at the instance of the defendant, be construed as a verdict finding for the defendant or the value of the property in the amount established by the plaintiff's affidavit for bail, which is corroborated by the plaintiff's own personal testimony upon trial. This is true although the defendant may not, prior to rendition of the verdict, have elected to take a verdict for the value of the property. Pound v. Baldwin, 34 Ga. App. 810, 131 S.E. 291 (1926).

Trespass award not excessive.

- In a trespass counterclaim, a jury's award of $22,000 properly withstood motions for relief from judgment because there was evidence to support the verdict and even if the award, which had not been specifically enumerated as general or nominal damages, was awarded as nominal damages, such damages could vary widely in Georgia and were not subject to being set aside based solely on the amount. Wright v. Wilcox, 262 Ga. App. 659, 586 S.E.2d 364 (2003).

Am. Jur. 2d.

- 75B Am. Jur. 2d, Trial, § 1545.

C.J.S.

- 89 C.J.S., Trial, §§ 1083 et seq., 1175 et seq.

ALR.

- Validity and effect of verdict in civil action finding defendant "not guilty,", 7 A.L.R.2d 1341.

Verdict for money judgment which finds for party for ambiguous or no amount, 49 A.L.R.2d 1328.

Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering, 55 A.L.R.4th 186.

Guidelines as to molding decrees.

- Superior court is authorized to have the jury so mold a verdict as to do justice to the parties in the same manner as a decree in equity and the court may mold a decree so as to meet the exigencies of each case. Central R.R. v. First Nat'l Bank, 73 Ga. 383 (1884).

Damage award could not be "molded."

- When a trial judge attempted to amend the jury's verdict, after the jury had dispersed, regarding a matter of substance, the award of damages, this action exceeded the authority vested by law in the trial judge to "mold" the verdict, and thus could not be sustained. Force v. McGeachy, 186 Ga. App. 781, 368 S.E.2d 777 (1988).

After the insured's home was severely damaged by fire, and the insured was awarded a jury verdict against the insurer for the insured's loss, the trial court erred in increasing the amount of damages for the loss of the plaintiff's home, but did not err in refusing to modify the jury's set-off for mortgage payments made by the insurer as this would have been an unauthorized "molding" of the jury's verdict. Allstate Ins. Co. v. Durham, 194 Ga. App. 867, 392 S.E.2d 53 (1990).

In a proper case, the superior court may mold the verdict so as to do justice. However, after the jury's verdict has been received and recorded and the jury has been dispersed, a verdict may not be amended regarding a matter of substance such as an award of damages. Crawford v. Presbyterian Home, Inc., 216 Ga. App. 54, 453 S.E.2d 480 (1995).

Trial court did not err by refusing to enter a judgment molding with a jury's verdict to correct an alleged illegality and inconsistency in the damages award because under O.C.G.A. § 9-12-7 the trial court had no authority to mold the verdict since an increase in damages was a matter of substance, not mere form; a plumbing contractor was not without a potential remedy if the contractor believed that the jury's verdict was incorrect because, after the return of the verdict but before the dispersal of the jury, the plumbing contractor could have argued that the jury's damage award was illegal and internally inconsistent and could have requested the trial court to give additional instructions and permit the jury to consider the matter again, and alternatively, after the jury was dispersed, the plumbing contractor could have asked for a new trial on the issue of damages or to conditionally grant a new trial under the court's power of additur under O.C.G.A. § 51-12-12. Gill Plumbing Co. v. Jimenez, 310 Ga. App. 863, 714 S.E.2d 342 (2011), cert. denied, No. S11C1826, 2011 Ga. LEXIS 966 (Ga. 2011).

Molding judgment to allow enforcement of right.

- Lower courts can mold their judgments so as to enable the plaintiff to enforce the plaintiff's right. Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317, 119 S.E. 25 (1923); Alvaton Mercantile Co. v. Caldwell, 31 Ga. App. 195, 120 S.E. 448 (1923).

City courts can exercise power conferred by this section. Rylee v. Bank of Statham, 7 Ga. App. 489, 67 S.E. 383 (1910); Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317, 119 S.E. 25 (1923).

Molding of verdict pertaining to land.

- Verdict can be so molded as to compel the defendant to surrender possession of the land, and to place the parties in the same condition in which the parties were before the contract was made. Sizemore v. Pinkston, 51 Ga. 398 (1874).

Although a jury's verdict did not describe the boundary line between two neighbors, the trial court's judgment establishing the boundary line between the parties' respective properties using a plat submitted by the prevailing owner did not substantively change the verdict but simply molded the verdict to do justice to the parties as permitted by O.C.G.A. § 9-12-5. Mathews v. Cloud, 294 Ga. 415, 754 S.E.2d 70 (2014).

Sale of railroad property under execution.

- While all the property of a railroad company was subject to be applied to payment of its just debts, and may be sold for that purpose under a judgment at law, the judgment and the execution founded thereon must be specially molded in compliance with former Civil Code 1910, §§ 5928 and 6025 (see now O.C.G.A. §§ 9-12-5 and9-13-4), and a sale under an execution not so molded, about to be made by the sheriff, may be arrested by an affidavit of illegality interposed by the corporation through the corporation's proper officers. Ocilla S.R.R. v. Morton, 17 Ga. App. 703, 87 S.E. 1088 (1916).

Attachment of disputed land to mold verdict.

- When a plat of disputed property is not introduced in evidence, but there is sufficient evidence produced at trial to identify the plat as the disputed tract of land, the trial judge may attach the plat to mold the verdict so as to do full justice to the parties. Mathews v. Penley, 242 Ga. 192, 249 S.E.2d 552 (1978), cert. denied, 440 U.S. 924, 99 S. Ct. 1255, 59 L. Ed. 2d 478 (1979).

Continuing nuisance.

- Trial court was entitled to enter an order molding the verdict in a continuing nuisance case pursuant to O.C.G.A. § 9-12-5 as doing so was necessary to do full justice to the parties; order entered three months after judgment did not modify the judgment in any matter of substance not contemplated by the parties at the time the judgment was entered. City of Columbus v. Barngrover, 250 Ga. App. 589, 552 S.E.2d 536 (2001).

Time for molding verdict.

- When the verdict has been received and published and the jury has dispersed, the judge cannot amend or reform the verdict in any matter of substance. Harlan v. Ellis, 198 Ga. 678, 32 S.E.2d 389 (1944).

Subtracting from verdict's finding.

- After dispersal of the jury, the judge has no power either to add to or take from the jury's finding, and has no power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury. Fried v. Fried, 208 Ga. 861, 69 S.E.2d 862 (1952).

Decree substantially modifying findings of jury.

- Judge cannot accomplish the same result as amending a verdict in a matter of substance by entering a decree different from the jury verdict, thereby eliminating certain substantial findings of the verdict, and substantially modifying or changing other findings of the jury. Fried v. Fried, 208 Ga. 861, 69 S.E.2d 862 (1952).

Disregarding surplusage in verdict held proper.

- When, upon the trial of a suit to enjoin a city from enforcing a fieri facias for back taxes, a verdict is returned in favor of the city, but added to the verdict is a recommendation that the past taxes be waived, the recommendation is surplusage without legal meaning or effect; and the court properly disregarded such recommendation and entered judgment in accord with the actual verdict refusing an injunction. Morrison v. Smith, 208 Ga. 521, 67 S.E.2d 577 (1951).

Judge held to have erred in striking jury's findings.

- When the jury found for plaintiff punitive damages and attorney's fees, but no actual damages, the judge erred in granting the defendants' motion to strike the jury's findings as surplusage and in entering a judgment for the defendants since a verdict may not be set aside or substantially changed except upon a motion for new trial, or its equivalent. Parrish Bakeries of Ga., Inc. v. Wiseman Baking Co., 104 Ga. App. 573, 122 S.E.2d 260 (1961).

Stipulation by parties as to jury's award.

- Ordinarily, jury or court may not award relief to persons not parties to the litigation, but when parties stipulated that the jury might award the interest of either party in certain property to the other for life, with a remainder over upon death, neither can be heard to complain of the verdict. McGill v. McGill, 247 Ga. 428, 276 S.E.2d 587 (1981).

Verdict in the singular construed to include all defendants.

- Verdicts are not to be set aside for indefiniteness if the verdicts are capable of being reduced to a reasonable certainty by application of the ordinary canons of construction. Under the common canons of construction, the singular and the plural each includes the other, unless the contrary plainly appears from the context. Thus, a verdict involving the defendant will be construed as a finding involving all the defendants when the suit is against two or more persons. Neda Constr. Co. v. Jenkins, 137 Ga. App. 344, 223 S.E.2d 732 (1976).

Creation of trust for child support intended by verdict.

- When, in a divorce case, the jury clearly intended to create a trust for the purpose of providing support for a minor child during the minor's minority and the jury also intended that there be monthly payments from the trust for the use of the child, but the husband failed to take any substantive steps to set up the trust, there was no error in the trial court naming a trustee and providing the necessary provisions to effectuate the trust for the purpose of providing monthly child support, such as requiring the husband to make the payments necessary to keep current on his obligations for his share of the debts, encumbrances, and maintenance of the trust property. Aycock v. Aycock, 251 Ga. 104, 303 S.E.2d 456 (1983).

Cited in Ottauquechee Sav. Bank v. Elliott, 172 Ga. 656, 158 S.E. 316 (1931); Jarecky v. Arnold, 51 Ga. App. 954, 182 S.E. 66 (1935); Sawyer Coal & Ice Co. v. Kinnett-Odom Co., 192 Ga. 166, 14 S.E.2d 879 (1941); Moon v. Moon, 222 Ga. 650, 151 S.E.2d 714 (1966); Bradley v. Bradley, 233 Ga. 83, 210 S.E.2d 1 (1974); Ford Motor Co. v. Lee, 137 Ga. App. 486, 224 S.E.2d 168 (1976); Swicord v. Hester, 240 Ga. 484, 241 S.E.2d 242 (1978); Solomon v. Solomon, 241 Ga. 188, 244 S.E.2d 2 (1978); Rental Equip. Group, LLC v. Maci, LLC, 263 Ga. App. 155, 587 S.E.2d 364 (2003).

Am. Jur. 2d.

- 75B Am. Jur. 2d, Trial, § 1612 et seq.

C.J.S.

- 89 C.J.S., Trial, §§ 1074 et seq., 1166 et seq.

ALR.

- Constitutionality, construction, and application of statutes empowering court to require judgment debtor to make payment out of income or by installments, 111 A.L.R. 392.

Power of trial court or appellate court to correct former's misinterpretation of jury's verdict, 160 A.L.R. 457.

Power of appellate court to remit portion of verdict or judgment covering period barred by statute of limitations, 26 A.L.R.2d 956.

Verdict for money judgment which finds for party for ambiguous or no amount, 49 A.L.R.2d 1328.

Court's power to increase amount of verdict or judgment over either party's refusal or failure to consent to addition, 56 A.L.R.2d 213.

Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering, 55 A.L.R.4th 186.

Separating amount of principal and interest.

- Amendment of verdict authorized so as to separate the amount of principal and interest in a lump sum verdict. Morgan v. J.B. Colt Co., 34 Ga. App. 630, 130 S.E. 600 (1925).

Framing verdict by court proper.

- When the foreperson states that the jury's intention was to allow interest, insurance, taxes, and attorney's fees, but these items were not included, it is proper for the court to so frame the verdict. Doster v. Brown, 52 Ga. 543 (1874); Morgan v. Coleman, 139 Ga. 459, 77 S.E. 579 (1913).

Attorney's fees.

- When the amount of jury finding does not include attorney's fees, it is proper to require the jury to find attorney's fees. Smith v. Pilcher, 130 Ga. 350, 60 S.E. 1000 (1908).

It is proper for court to have jury separate according to principal and interest counsel fees in verdict. Smith v. Pilcher, 130 Ga. 350, 60 S.E. 1000 (1908).

As to instance when execution of contract for payment of attorney fees improper, see Lester v. Mathews, 56 Ga. 655 (1876); City & Suburban Ry. v. Brauss, 70 Ga. 368 (1883).

Indefinite or ambiguous verdict requires correction.

- It is the right and duty of the trial judge to call the attention of the jury to an indefinite or ambiguous verdict and to require the jury to return to the jury room and correct the verdict. Jordan v. Downs, 118 Ga. 544, 45 S.E. 439 (1903); Smith v. Pilcher, 130 Ga. 350, 60 S.E. 1000 (1908).

Rule on correction is the same when the verdict is incomplete. Lee v. Humphries, 124 Ga. 539, 52 S.E. 1007 (1905).

Writing off part of verdict.

- Judge could correct certain errors in the verdict by requiring the plaintiff to write off a specified amount in order to prevent grant of a new trial. Hayslip v. Fields, 142 Ga. 49, 82 S.E. 441 (1914). See also McConnell v. Selph, 30 Ga. App. 795, 119 S.E. 438 (1923).

Time for correction of verdict by jury.

- Jury in a justice of the peace court may correct the jury's verdict at the time of returning the verdict and before the jurors have dispersed or been discharged when the jurors have made a mistake in writing the verdict out. Almand v. Scott & Co., 83 Ga. 402, 11 S.E. 653 (1889).

Perfecting verdict in presence of jury.

- There was no error in allowing the verdict to be perfected in the presence of the jury before the jury had retired from the box. Manry v. First Nat'l Bank, 195 Ga. 163, 23 S.E.2d 662 (1942).

Correction in suit on an account.

- Trial court correctly orders that the jury verdict be corrected to amount sued for on an account if the plaintiff 's own complaint and evidence shows the plaintiff is not entitled to more on the account. Chieffe v. Alcoa Bldg. Prods., Inc., 168 Ga. App. 384, 309 S.E.2d 167 (1983).

Cited in Harvey v. Head, 68 Ga. 247 (1881); Weddington v. Huey, 80 Ga. 651, 6 S.E. 281 (1888); Johns v. State, 79 Ga. App. 429, 54 S.E.2d 142 (1949); Maxwell v. Summerville Lumber Co., 87 Ga. App. 405, 74 S.E.2d 111 (1953); Denham v. Shellman Grain Elevator, Inc., 123 Ga. App. 569, 181 S.E.2d 894 (1971); Turley v. Turley, 244 Ga. 808, 262 S.E.2d 112 (1979); Rental Equip. Group, LLC v. Maci, LLC, 263 Ga. App. 155, 587 S.E.2d 364 (2003).

Am. Jur. 2d.

- 75B Am. Jur. 2d, Trial, § 1612 et seq.

C.J.S.

- 89 C.J.S., Trial, §§ 1064, 1065, 1166 et seq.

ALR.

- Power of court to mold or amend verdict with respect to the parties for or against whom it was rendered, 106 A.L.R. 418.

Conflict of laws as to administration of testamentary trusts, and proper forum for judicial proceedings relating thereto, 115 A.L.R. 802.

Conflict of laws as regards effect of divorce, or other change in the relation of insured and beneficiary, upon rights of beneficiary under insurance policy, 125 A.L.R. 1287.

Power of trial court or appellate court to correct former's misinterpretation of jury's verdict, 160 A.L.R. 457.

Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering, 55 A.L.R.4th 186.

Court's duty to reshape informal jury verdict.

- Jury may express their meaning in an informal manner, and the court has the right to put it in such form and shape as to do justice to the parties, according to the pleadings and the evidence. Davis v. Wright, 194 Ga. 1, 21 S.E.2d 88 (1942).

Amendment to conform to reasonable intendment of verdict.

- Authority given the trial judge to amend judgment to conform to the reasonable intendment of the verdict constitutes an exception to the rule of this section. Turley v. Turley, 244 Ga. 808, 262 S.E.2d 112 (1979).

Polling of jury.

- Judge may poll the jury as to the intendment of the jury's verdict. Ballard v. Turner, 147 Ga. App. 584, 249 S.E.2d 637 (1978).

Adding interest after jury's denial of interest.

- It is error for the trial court to add interest after the jury has denied interest in the jury's verdict. Hoffman v. Clendenon, 150 Ga. App. 98, 256 S.E.2d 676 (1979).

Trial court was without authority to add additional interest after the jury dispersed since it was clear that the jury intended to award interest, but found that the plaintiff was entitled to less than the maximum amount the court charged could be awarded. Voxcom, Inc. v. Boda, 221 Ga. App. 619, 472 S.E.2d 155 (1996).

Intention of jury.

- When intention of the jury is not apparent on the face of the verdict, the court has no power to amend the verdict. Polk v. Fulton County, 96 Ga. App. 733, 101 S.E.2d 736 (1957).

When the intention of the jury is apparent on the face of the verdict, the verdict's form may be amended to conform to the apparent intention. Polk v. Fulton County, 96 Ga. App. 733, 101 S.E.2d 736 (1957).

When the jury's intendment appears plainly from record of the proceedings in the case, the trial court does not abuse the court's discretion in fashioning the court's judgment to conform to that intendment. Gateway Leasing Corp. v. Heath, 168 Ga. App. 858, 310 S.E.2d 549 (1983).

Illegal portion of a verdict may be separated and stricken under former Code 1933, § 110-112 (see now O.C.G.A. § 9-12-8). Hardin v. Fireman's Fund Ins. Co., 150 Ga. App. 277, 257 S.E.2d 300 (1979).

As the illegal portion of the jury's verdict was determinable and separable from the rest and the trial court properly wrote off the illegal portion of the verdict and reduced the principal amount of the judgment, there was no cause to grant a guarantor's request for a new trial. Fletcher v. C. W. Matthews Contr. Co., 322 Ga. App. 751, 746 S.E.2d 230 (2013).

Expressing legal meaning of jury's finding.

- When a jury, by the consent of the parties, is allowed to disperse after making the jury's verdict, and returns into court, it was not error in the court to allow an alteration to be made, which alteration expressed the legal meaning of the finding. Jones v. Smith, 64 Ga. 711 (1880).

Amending verdict after dispersing temporarily.

- After dispersal for the night, with the intention of returning the verdict found in the morning, the court properly allowed an amendment in the morning to make the verdict correspond with the statement of the foreperson. Barnes v. Strohecker, 17 Ga. 340 (1855).

Ordering jury back in session to clarify difference.

- After the jury in a justice of the peace court reached a verdict while the court was recessed, and dispersed, and when the court reconvened the jury reassembled in the jury box, and the verdict was read, and when the foreperson of the jury thereupon stated that the jury had intended to find for the defendants, instead of for the plaintiff and after the justice of the peace polled the jury and ascertained that the jury intended to find for the defendants, and the justice instructed the jury as to the identity of the parties as plaintiff and defendants, the justice did not err in ordering the jury back to the jury room to make a verdict. McGahee v. Samuels, 61 Ga. App. 773, 7 S.E.2d 611 (1940).

Error in using "plaintiff" instead of "defendant" when the meaning is clear has been held to be immaterial as a mere lapsus linguae. Polk v. Fulton County, 96 Ga. App. 733, 101 S.E.2d 736 (1957).

Ordering jury to find verdict contrary to the jury's intent.

- It was error for the court to instruct the jury to return a verdict for a different amount from that which the jury had informed the court before the jurors dispersed that the jurors had intended to find. Monroe v. Alden, 61 Ga. App. 829, 7 S.E.2d 424 (1940).

Failure of the foreperson to sign a verdict amounted at most to an informality which was properly amended. Avera v. Tool, McGarrah & Toudee, 74 Ga. 398 (1884).

Jury foreperson may be called back to date the verdict after the jury has been discharged. Fowler v. Aldridge, 108 Ga. App. 358, 133 S.E.2d 48 (1963).

When modification of verdict in substance permitted.

- When a jury makes a mistake in writing a verdict, and the verdict as returned into court does not express or contain the true finding of the jury, the jury, before dispersing, may change or modify the jury's verdict in matter of substance so as to express the true intention and finding of the jury. Monroe v. Alden, 61 Ga. App. 829, 7 S.E.2d 424 (1940); Ballard v. Turner, 147 Ga. App. 584, 249 S.E.2d 637 (1978).

Verdict not to be amended after received and recorded.

- Verdict may not be amended in substance after the verdict has been received and recorded, and the jury has dispersed; this is nonetheless true in a case wherein the court had directed what the verdict should be. McGahee v. Samuels, 61 Ga. App. 773, 7 S.E.2d 611 (1940); Harlan v. Ellis, 198 Ga. 678, 32 S.E.2d 389 (1944); Morris v. Morris, 242 Ga. 591, 250 S.E.2d 459 (1978); Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 151 Ga. App. 898, 262 S.E.2d 151 (1979).

After dispersal of the jury a judge has no power to add to or take from the jury's findings, and has not the power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury. Fried v. Fried, 208 Ga. 861, 69 S.E.2d 862 (1952); Parrish Bakeries of Ga., Inc. v. Wiseman Baking Co., 104 Ga. App. 573, 122 S.E.2d 260 (1961); Bass v. Barrett, 190 Ga. App. 314, 378 S.E.2d 722 (1989).

Jury found a breach of the duty of good faith, but did not find that a broker was the procuring cause of a lease negotiated by a corporation, or that the broker was entitled to recover in quantum meruit, which left the verdict for breach of the duty of good faith that the broker had abandoned; the broker was not allowed to redraft the verdict form that it presented to include a finding on procuring cause or quantum meruit, and, thus, the corporation was entitled to judgment notwithstanding the verdict. Quantum Trading Corp. v. Forum Realty Corp., 278 Ga. App. 485, 629 S.E.2d 420 (2006).

Under O.C.G.A. § 9-12-7, a verdict could be amended in mere matter of form after the jury has dispersed; however, after a verdict was received and recorded and the jury has dispersed, a verdict could not be amended in a matter of substance either by what the jurors say the jurors intended to find or otherwise. Wilkinson v. State, 283 Ga. App. 213, 641 S.E.2d 189 (2006).

Even when jury has found punitive but not general damages.

- After the jury disperses, and the verdict has been received and recorded, it may not be amended in a matter of substance, even if the jury has found punitive but no general damages. Ballard v. Turner, 147 Ga. App. 584, 249 S.E.2d 637 (1978).

Reassembling jury after verdict received and recorded.

- When a jury has rendered an imperfect verdict, by not finding all the issues submitted to the jury, it was held that after the verdict had been received and recorded, and the jury discharged from further consideration of the action, that the court erred, after the expiration of four days, in reassembling the jury and amending the verdict according to what the jury stated was their intention to find. Settle v. Alison, 8 Ga. 201, 52 Am. Dec. 393 (1850); Read Phosphate Co. v. Wells, 18 Ga. App. 656, 90 S.E. 358 (1916).

Motion for new trial required.

- When the jury found for the plaintiff punitive damages and attorney's fees, but no actual damages, the trial judge erred in granting the defendants' motion to strike the jury's findings as surplusage and in entering a judgment for the defendants since a verdict may not be set aside or substantially changed except upon a motion for new trial, or its equivalent. Parrish Bakeries of Ga., Inc. v. Wiseman Baking Co., 104 Ga. App. 573, 122 S.E.2d 260 (1961).

Instructing jury to correct jury's verdict.

- If a judge is not satisfied that the verdict as returned is proper, before receiving the verdict the judge may require the jury to return to the room and correct the jury's verdict under proper instructions from the court. Ballard v. Turner, 147 Ga. App. 584, 249 S.E.2d 637 (1978).

Erroneous modification of the jury verdict.

- Trial court erroneously modified the jury verdict by awarding any overpayment of marital debt to the wife. In ordering that $19,861 of the house sale proceeds be paid toward non-existent debts and that the resulting overpayment then be returned to the wife, the trial court completely undermined the jury verdict by giving the wife a windfall of approximately $19,000 that the jury did not intend while denying the mother-in-law the proceeds from the house sale awarded to her in the verdict. Blevins v. Brown, 267 Ga. App. 665, 600 S.E.2d 739 (2004).

Decree substantially modifying verdict.

- Judge cannot accomplish the same result as amending a verdict in manner of substance by entering a decree different from the verdict of the jury, thereby eliminating certain substantial findings of the verdict, and substantially modifying or changing other findings of the jury. Fried v. Fried, 208 Ga. 861, 69 S.E.2d 862 (1952); Parrish Bakeries of Ga., Inc. v. Wiseman Baking Co., 104 Ga. App. 573, 122 S.E.2d 260 (1961).

Substitution for verdict which was contrary to instructions.

- When the verdict is palpably contrary to the instructions, the judge has no power to discard the verdict and substitute another in the verdict's place. McCrary v. Gano, 115 Ga. 295, 41 S.E. 580 (1902).

Amending directed verdict.

- After the court has directed a verdict, the court should not amend the returned verdict at the instance of the party whose attorney prepared the verdict. McCrary v. Gano, 115 Ga. 295, 41 S.E. 580 (1902).

Requiring affidavits of jurors as to findings of fact.

- At a hearing of the defendant's motions for new trial, a court errs in allowing and considering affidavits of jurors as to what findings the jurors had made in reaching the jurors' verdicts since the effect of such affidavits is to amend the verdict into special findings of fact, and special verdicts are only permissible in equity cases. Davison-Paxon Co. v. Archer, 91 Ga. App. 131, 85 S.E.2d 182 (1954).

Statement of single juror as to jury's intent.

- It is improper to amend the judgment on the basis of what one of the jurors says the jury intended. Turley v. Turley, 244 Ga. 808, 262 S.E.2d 112 (1979).

Personal property award added to the jury's verdict by a court in the court's final judgment is improper, because a trial court is not authorized to award any additional property after the jury's verdict. Garner v. Garner, 242 Ga. 446, 249 S.E.2d 200 (1978).

Creating trust to effectuate jury's intent.

- When, in a divorce case, the jury clearly intended to create a trust for the purpose of providing support for a minor child during the minor's minority and the jury also intended that there be monthly payments from the trust for the use of the child, but the husband failed to take any substantive steps to set up the trust, there was no error in the trial court naming a trustee and providing the necessary provisions to effectuate the trust for the purpose of providing monthly child support, such as requiring the husband to make the payments necessary to keep current on his obligations for his share of the debts, encumbrances, and maintenance of the trust property. Aycock v. Aycock, 251 Ga. 104, 303 S.E.2d 456 (1983).

Damage award could not be amended.

- When the trial judge attempted to amend the jury's verdict, after the jury had dispersed, regarding a matter of substance, the award of damages, this action exceeded the authority vested by law in the trial judge to "mold" the verdict and, thus, could not be sustained. Force v. McGeachy, 186 Ga. App. 781, 368 S.E.2d 777 (1988).

After the insured's home was severely damaged by fire, and the insured was awarded a jury verdict against the insurer for the insured's loss, the trial court erred in increasing the amount of damages for the loss of the plaintiff's home, but did not err in refusing to modify the jury's set-off for mortgage payments made by the insurer as this would have been an unauthorized "molding" of the jury's verdict. Allstate Ins. Co. v. Durham, 194 Ga. App. 867, 392 S.E.2d 53 (1990).

Trial court did not err by refusing to enter a judgment molding with a jury's verdict to correct an alleged illegality and inconsistency in the damages award because under O.C.G.A. § 9-12-7 the trial court had no authority to mold the verdict since an increase in damages was a matter of substance, not mere form; a plumbing contractor was not without a potential remedy if the contractor believed that the jury's verdict was incorrect because, after the return of the verdict but before the dispersal of the jury, the plumbing contractor could have argued that the jury's damage award was illegal and internally inconsistent and could have requested the trial court to give additional instructions and permit the jury to consider the matter again, and alternatively, after the jury was dispersed, the plumbing contractor could have asked for a new trial on the issue of damages or to conditionally grant a new trial under the court's power of additur under O.C.G.A. § 51-12-12. Gill Plumbing Co. v. Jimenez, 310 Ga. App. 863, 714 S.E.2d 342 (2011), cert. denied, No. S11C1826, 2011 Ga. LEXIS 966 (Ga. 2011).

Trial court's award of a substantial sum in litigation expenses to the wife in a divorce proceeding worked a change "in matter of substance" of the jury's allocation of resources between the parties, when such allocation was based upon the jury's expectation that no party would be required to pay litigation costs incurred by the other party. Stone v. Stone, 258 Ga. 716, 373 S.E.2d 627 (1988).

Equitable division of marital residence.

- In a divorce action, the trial court erred in granting a new trial on a sole issue of equitable division of the marital residence. If a motion for a new trial is granted, all issues of the allocation of economic resources must be determined de novo. Griggs v. Griggs, 260 Ga. 249, 392 S.E.2d 11 (1990).

Trial court could not amend judgment to eliminate party's interest.

- In a breach of contract case arising out of an LLC operating agreement, it was not clear that the jury intended to extinguish a former LLC member's interest in the operating agreement by the jury's verdict awarding the former member damages, and under O.C.G.A. §§ 9-12-7,9-12-9, and9-12-14, the trial court could not vary the judgment from the terms of the verdict. Kaufman Development Partners, L.P. v. Eichenblatt, 324 Ga. App. 71, 749 S.E.2d 374 (2013).

Cited in Corbett v. Gilbert, 24 Ga. 454 (1858); Mullins v. Christopher, 36 Ga. 584 (1867); Patterson v. Murphy, 63 Ga. 281 (1879); Shelton v. O'Brien, 76 Ga. 820 (1886); Brooke v. Lowry Nat'l Bank, 141 Ga. 493, 81 S.E. 223 (1914); Nicholson v. Smith & Son, 29 Ga. App. 376, 115 S.E. 499 (1923); United States v. 340 Acres of Land, 54 F. Supp. 457 (S.D Ga. 1944); Gibbs v. Forrester, 204 Ga. 545, 50 S.E.2d 318 (1948); Reagan v. Reagan, 220 Ga. 587, 140 S.E.2d 841 (1965); Moon v. Moon, 222 Ga. 650, 151 S.E.2d 714 (1966); Saint v. Ryan, 114 Ga. App. 489, 151 S.E.2d 826 (1966); Thompson v. Ingram, 226 Ga. 668, 177 S.E.2d 61 (1970); Bradley v. Bradley, 233 Ga. 83, 210 S.E.2d 1 (1974); Wadlington v. Wadlington, 235 Ga. 582, 221 S.E.2d 1 (1975); Roswell Road-Perimeter Hwy. Liquor Store, Inc. v. Schurke, 137 Ga. App. 145, 222 S.E.2d 847 (1975); Ace Parts & Distribs., Inc. v. First Nat'l Bank, 146 Ga. App. 4, 245 S.E.2d 314 (1978); Miller v. Roses' Stores, Inc., 151 Ga. App. 158, 259 S.E.2d 162 (1979); Cotts v. Cotts, 245 Ga. 138, 263 S.E.2d 163 (1980); Todhunter v. Price, 248 Ga. 411, 283 S.E.2d 864 (1981); Taylor v. Smith, 159 Ga. App. 797, 285 S.E.2d 200 (1981); First Union Nat'l Bank v. Gorlin, 194 Ga. App. 574, 390 S.E.2d 923 (1990); French Quarter, Inc. v. Peterson, Young, Self & Asselin, 220 Ga. App. 852, 471 S.E.2d 9 (1996); Rental Equip. Group, LLC v. Maci, LLC, 263 Ga. App. 155, 587 S.E.2d 364 (2003); Surles v. Cornell Corr. of Cal., Inc., 290 Ga. App. 260, 659 S.E.2d 683 (2008).

Am. Jur. 2d.

- 75B Am. Jur. 2d, Trial, § 1612 et seq.

C.J.S.

- 89 C.J.S., Trial, §§ 1074 et seq., 1166 et seq.

ALR.

- Power of court to mold or amend verdict with respect to the parties for or against whom it was rendered, 106 A.L.R. 418.

Entry of final judgment after disagreement of jury, 31 A.L.R.2d 885.

Court's power to increase amount of verdict or judgment over either party's refusal or failure to consent to addition, 56 A.L.R.2d 213.

Competency of juror's statement or affidavit to show that verdict in a civil case was not correctly recorded, 18 A.L.R.3d 1132.

Propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after jury has been discharged, or has reached or sealed its verdict and separated, 14 A.L.R.5th 89.

Propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after discharge or separation at conclusion of civil case, 19 A.L.R.5th 622.

Matters not raised by pleadings disregarded as surplusage.

- When part of a verdict was a gratuitous finding, but was not in conflict with the first part of the verdict which was a finding in favor of the defendant, that part of the verdict upon the only issue that could have been submitted to the jury was good and enforceable, and the remaining part of the verdict, dealing with matters not involving any issue raised by the pleadings, was beyond the legitimate province of the jury, and would be disregarded as surplusage. Patterson v. Fountain, 188 Ga. 473, 4 S.E.2d 38 (1939).

Illegal portion of a divorce decree can be separated and properly stricken. Kimble v. Kimble, 240 Ga. 100, 239 S.E.2d 676 (1977); Hardin v. Fireman's Fund Ins. Co., 150 Ga. App. 277, 257 S.E.2d 300 (1979).

Separation of illegal portions of judgment.

- When the illegal provisions of a judgment can be separated from those which are legal, those parts which are illegal may be set aside and the legal provisions allowed to stand. Davis v. Davis, 206 Ga. 559, 57 S.E.2d 673 (1950).

As the illegal portion of the jury's verdict was determinable and separable from the rest and the trial court properly wrote off the illegal portion of the verdict and reduced the principal amount of the judgment, there was no cause to grant a guarantor's request for a new trial. Fletcher v. C. W. Matthews Contr. Co., 322 Ga. App. 751, 746 S.E.2d 230 (2013).

Alimony decree granting insurance proceeds to children who are not beneficiaries, upon death of their father, is illegal and properly stricken under the provisions of this section as it would amount to a further grant of child support from the estate of the wife. Veal v. Veal, 226 Ga. 285, 174 S.E.2d 435 (1970).

Verdict for an amount in excess of an insurance policy was not valid against an insurance carrier as to the excess, but was not invalid by reason of the amount as to the insured, and it cannot be wholly set aside because it was partly legal and partly illegal. It may be treated as an irregularity as to the complaining insurance carrier; and an irregularity in the judgment, apparent on the face of the record may often be corrected. George A. Rheman Co. v. May, 71 Ga. App. 651, 31 S.E.2d 738 (1944).

Vague portion stricken.

- Portion of the verdict stating the defendant "shall pay total cost of operation and hospitalization of plaintiff" was too vague and indefinite to authorize a decree as to these items; the pleadings being equally indefinite in reference to operation and hospitalization, the court erred in overruling the motion to arrest the judgment so far as the judgment applied to these subjects. Martin v. Martin, 183 Ga. 787, 189 S.E. 843 (1937).

Illegal award of punitive damages properly struck.

- Because an assignee was not legally entitled to punitive damages, the illegal portion of a jury's verdict was separable from the legal portion; consequently, the trial court acted within the authority of O.C.G.A. § 9-12-8 by striking the jury's illegal award of punitive damages and entering judgment on the remaining legal part. Chapman v. Clark, 272 Ga. App. 667, 613 S.E.2d 184 (2005).

Illegal award of attorney's fees and expenses.

- Ancillary award of attorney fees and expenses in favor of a seller was ordered struck, pursuant to O.C.G.A. § 9-12-8, as: (1) the jury failed to find the buyers liable on the seller's underlying substantive claims; (2) the award was based on O.C.G.A. § 13-6-11, not O.C.G.A. § 10-5-14; and, as a result, (3) the lack of a damages award in favor of the seller did not support the award. Davis v. Johnson, 280 Ga. App. 318, 634 S.E.2d 108 (2006).

When an inconsistent and void verdict is returned by the jury, it is proper for the judge to refuse to receive the verdict, and to require the jury to return for further deliberations. Thompson v. Ingram, 226 Ga. 668, 177 S.E.2d 61 (1970); Kemp v. Bell-View, Inc., 179 Ga. App. 577, 346 S.E.2d 923 (1986); Kendall v. Curtis, 194 Ga. App. 37, 389 S.E.2d 550 (1989).

Verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside. Thompson v. Ingram, 226 Ga. 668, 177 S.E.2d 61 (1970); Kendall v. Curtis, 194 Ga. App. 37, 389 S.E.2d 550 (1989).

Cited in Steed v. Cruise, 70 Ga. 168 (1883); Haley v. Covington, 19 Ga. App. 782, 92 S.E. 297 (1917); Cowart v. McLarin, 87 Ga. App. 253, 73 S.E.2d 507 (1952); Maxwell v. Summerville Lumber Co., 87 Ga. App. 405, 74 S.E.2d 111 (1953); Church of God of Union Ass'y, Inc. v. City of Dalton, 216 Ga. 659, 119 S.E.2d 11 (1961); Barnes v. Barnes, 230 Ga. 226, 196 S.E.2d 390 (1973); Elrod v. Elrod, 231 Ga. 222, 200 S.E.2d 885 (1973); Scales v. Scales, 235 Ga. 509, 220 S.E.2d 267 (1975); Wadlington v. Wadlington, 235 Ga. 582, 221 S.E.2d 1 (1975); Eco-Rez, Inc. v. Citizens Bank, 141 Ga. App. 90, 232 S.E.2d 587 (1977); McGarr v. McGarr, 239 Ga. 640, 238 S.E.2d 427 (1977); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977); Bagwell v. Sportsman Camping Ctrs. of Am., Inc., 144 Ga. App. 486, 241 S.E.2d 602 (1978); Morris v. Morris, 242 Ga. 591, 250 S.E.2d 459 (1978); Plaza Pontiac, Inc. v. Shaw, 158 Ga. App. 799, 282 S.E.2d 383 (1981); Georgia Farm Bureau Mut. Ins. Co. v. Collins, 161 Ga. App. 149, 288 S.E.2d 106 (1982); Biggers v. Biggers, 250 Ga. 248, 297 S.E.2d 257 (1982); Cleaveland v. Alford, 188 Ga. App. 690, 373 S.E.2d 853 (1988).

Am. Jur. 2d.

- 75B Am. Jur. 2d, Trial, § 1612 et seq.

C.J.S.

- 89 C.J.S., Trial, §§ 1074 et seq., 1166 et seq.

ALR.

- Power of court to mold or amend verdict with respect to the parties for or against whom it was rendered, 106 A.L.R. 418.

Power of appellate court to remit portion of verdict or judgment covering period barred by statute of limitations, 26 A.L.R.2d 956.

Verdict in excess of amount demanded as requiring new trial notwithstanding voluntary remittitur, 65 A.L.R.2d 1331.

Amendment of judgment to conform to verdict.

- Judgment must conform to reasonable intendment of verdict upon which the judgment is based and the judgment may be amended by order of the court in order to conform to the verdict, even after execution has been issued. Frank E. Wood Co. v. Colson, 43 Ga. App. 265, 158 S.E. 533 (1931).

Judgment entered on jury verdict in favor of the homeowners had to require the repair of the dam at issue so that it impounded a lake with the normal pool elevation that the evidence reflected was the elevation prior to an emergency partial breach of the dam as the issue for resolution was the action to be taken by the dam owners to comply with an order of the Environmental Protection Division of the Georgia Natural Resources Department without diminishing the homeowners' property interest in the homeowners' irrevocable easement. Forsyth County v. Martin, 279 Ga. 215, 610 S.E.2d 512 (2005).

Judgment must follow true meaning and intent of finding of the jury. Taylor v. Taylor, 212 Ga. 637, 94 S.E.2d 744 (1956); King v. Cox, 130 Ga. App. 91, 202 S.E.2d 216 (1973); DOT v. Great S. Enters., Inc., 137 Ga. App. 710, 225 S.E.2d 80 (1976).

Trial court erred by entering judgment on the jury's first verdict in a property owner's action for trespass and nuisance because the trial court had the authority and duty to instruct the jury to reconsider the verdict once a substantial error in the charge was discovered even though the owner had not objected to the trial court's actions, and the charges and the verdict form created substantial uncertainty about the meaning of the jury's initial decision; the initial failure to charge on O.C.G.A. § 51-12-33(g) was harmful because the jury's initial decision showed an intent to reduce the owner's award by only 50 percent, not 100 percent, but once the jury was fully instructed, the jury confirmed that intent in the second verdict, and the trial court was required to enter judgment in accordance with that intent. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).

Decree should follow special verdict so far as facts are found on the issues presented, and the decree should be based thereon in connection with the facts admitted in the pleadings. Law v. Coleman, 173 Ga. 68, 159 S.E. 679 (1931).

Relationship of decree to jury's finding of facts.

- It is not true that no decree can be rendered unless the verdict contains finding of all facts upon which the verdict can be based; judge in rendering a decree can grant no relief contrary to the findings of fact made by the jury. Law v. Coleman, 173 Ga. 68, 159 S.E. 679 (1931).

In determining whether a judgment conforms to the verdict, judgment must be construed with reference to pleadings and the evidence. Taylor v. Taylor, 212 Ga. 637, 94 S.E.2d 744 (1956); DOT v. Great S. Enters., Inc., 137 Ga. App. 710, 225 S.E.2d 80 (1976).

When verdict conformed to pleadings and was authorized thereby, it would have been improper to have sustained the defendants' motion for an order making the judgment in the case conform to the verdict rendered by the jury. Maxwell v. Summerville Lumber Co., 87 Ga. App. 405, 74 S.E.2d 111 (1953).

Amendment after verdict received and recorded.

- Verdict may not be amended in matters of substance after the verdict has been received and recorded, and the jury has dispersed; this is nonetheless true in a case wherein the court had directed what the verdict should be. Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 151 Ga. App. 898, 262 S.E.2d 151 (1979).

Verdict against a bank branch which was in fact a corporate nonentity could not be amended by the trial court to substitute the main bank as the party against whom the verdict was to be considered rendered. Harrell v. Bank of S., 174 Ga. App. 384, 330 S.E.2d 147 (1985).

Setting aside jury's verdict.

- Judgment based on jury's verdict cannot be set aside by a motion to set aside as long as the verdict upon which the judgment is based stands and has not been set aside by proper procedure. Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556, cert. dismissed, 222 Ga. 820, 152 S.E.2d 693 (1966).

Verdict that is contradictory and repugnant is void, and no valid judgment can be entered thereon. Four Oaks Homes, Inc. v. Smith, 153 Ga. App. 326, 265 S.E.2d 76 (1980).

Verdicts must have a liberal construction, and should be so construed as to stand, if practicable; and the judge may examine the entire pleadings, the admissions in the answer, and all undisputed facts in making a final decree. Law v. Coleman, 173 Ga. 68, 159 S.E. 679 (1931).

Only a single judgment could be entered from verdict.

- Although there was no procedure under Georgia law by which two separate judgments could be rendered from a single verdict, a bankruptcy court could limit automatic stay relief in a manner that would prevent the creditors from collecting any portion of a verdict in a state court civil action arising from an automobile accident that was in excess of the debtor's policy limits. Creditors could then file a renewed motion for stay relief to the extent that the creditors sought to pursue, or encourage the debtor to pursue, a bad faith claim against the debtor's insurer for failure to settle the case within the debtor's policy limits. Bruch v. Hall (In re Hall), Bankr. (Bankr. S.D. Ga. Aug. 19, 2014).

Parol proof cannot furnish a ground of amendment of judgment. Frank E. Wood Co. v. Colson, 43 Ga. App. 265, 158 S.E. 533 (1931).

Judge is not empowered to completely change verdict by allowing interest to a damage award which the jury has denied in the jury's verdict. Taylor v. Taylor, 212 Ga. 637, 94 S.E.2d 744 (1956); Giant Peanut Co. v. Carolina Chem., Inc., 133 Ga. App. 229, 211 S.E.2d 155 (1974), later appeal, 135 Ga. App. 597, 218 S.E.2d 305 (1975).

Trial court could not amend judgment to eliminate party's interest.

- In a breach of contract case arising out of an LLC operating agreement, it was not clear that the jury intended to extinguish a former LLC member's interest in the operating agreement by the jury's verdict awarding the former member damages, and under O.C.G.A. §§ 9-12-7,9-12-9, and9-12-14, the trial court could not vary the judgment from the terms of the verdict. Kaufman Development Partners, L.P. v. Eichenblatt, 324 Ga. App. 71, 749 S.E.2d 374 (2013).

When announcement by the jury is an inquiry, and not a pronouncement, the law allows the jury all reasonable opportunity, before verdict is put on record and the jurors are discharged, to discover and declare the truth according to the judgment. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

Since the jury was confused as to whether the jurors had the power to apportion damages between two defendants, and after the jurors returned to the courtroom when the jurors intimated the jurors had found against both defendants, specifying no amounts, but that the jurors wanted to apportion damages, the judge instructed as to this issue and the jury foreperson indicated that the jury would discuss the matter further, after which the jury then left for further deliberations and returned the verdict finding only against one defendant, there was no error in entering a judgment on this verdict as it was the only "verdict" in the case. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

Failure to conform judgment to verdict.

- Because the jury clearly intended for the easement to encompass the new road built by the grantee, the trial court erred by amending the judgment on remand in a manner that failed to conform to the reasonable intendment of the verdict and the evidence presented at trial regarding the location of the new road. R. C. Acres, Inc. v. Mommies Properties, LLC, 338 Ga. App. 569, 790 S.E.2d 824 (2016).

Addition of interest to judgment to conform verdict.

- Trial judge was without authority to add interest to a judgment without a direction to do so in the verdict; since the trial court's judgment was not an accurate reflection of the jury verdict, it was proper for the court to amend the judgment to conform to the verdict. Dismuke v. Gibson, 174 Ga. App. 546, 330 S.E.2d 771 (1985).

Error in adding interest and fees to judgment.

- Prejudgment interest and attorney's fees were stricken, although the parties stipulated at the unreported charge conference that issues of attorney's fees and prejudgment interest would be withdrawn from the jury's consideration and instead would be added to the verdict by the court in the event of an award in favor of the plaintiff since the court ruled that it was error to add prejudgment interest and attorney's fees because O.C.G.A. § 9-12-9 requires that judgment and execution shall conform to the verdict. Dover v. Master Lease Corp., 203 Ga. App. 526, 417 S.E.2d 368 (1992).

Erroneous modification of the jury verdict.

- Trial court erroneously modified the jury verdict by awarding any overpayment of marital debt to the wife. In ordering that $19,861 of the house sale proceeds be paid toward non-existent debts and that the resulting overpayment then be returned to the wife, the trial court completely undermined the jury verdict by giving the wife a windfall of approximately $19,000 that the jury did not intend, while denying the mother-in-law the proceeds from the house sale awarded to her in the verdict. Blevins v. Brown, 267 Ga. App. 665, 600 S.E.2d 739 (2004).

Cited in Banks v. Kilday, 88 Ga. App. 307, 76 S.E.2d 642 (1958); Hesters v. Sammons, 106 Ga. App. 126, 126 S.E.2d 484 (1962); Jenkins v. Tastee-Freez of Ga., Inc., 114 Ga. App. 849, 152 S.E.2d 909 (1966); Willingham v. Lee, 124 Ga. App. 641, 185 S.E.2d 553 (1971); Norton Realty & Loan Co. v. Board of Educ., 129 Ga. App. 668, 200 S.E.2d 461 (1973); Jackson v. Riviera Dev. Corp., 130 Ga. App. 146, 202 S.E.2d 545 (1973); Kamor v. Firemen's Fund Ins. Co., 133 Ga. App. 234, 211 S.E.2d 179 (1974); Jolly v. Jolly, 137 Ga. App. 625, 224 S.E.2d 807 (1976); Erdmier v. Eunice, 143 Ga. App. 505, 239 S.E.2d 192 (1977); Lowe v. Lowe, 243 Ga. 398, 254 S.E.2d 323 (1979); First Am. Bank v. Bishop, 244 Ga. 317, 260 S.E.2d 49 (1979); Turley v. Turley, 244 Ga. 808, 262 S.E.2d 112 (1979); C & W Land Dev. Corp. v. Kaminsky, 175 Ga. App. 774, 334 S.E.2d 362 (1985); Force v. McGeachy, 186 Ga. App. 781, 368 S.E.2d 777 (1988); Chastain v. United States Fid. & Guar. Co., 190 Ga. App. 215, 378 S.E.2d 397 (1989); First Union Nat'l Bank v. Gorlin, 194 Ga. App. 574, 390 S.E.2d 923 (1990); Meyers v. Thornton, 224 Ga. App. 326, 480 S.E.2d 334 (1997); Pinkerton & Laws, Inc. v. Macro Constr., Inc., 226 Ga. App. 169, 485 S.E.2d 797 (1997); Holmes v. Henderson, 274 Ga. 8, 549 S.E.2d 81 (2001); Navy Fed. Credit Union v. McCrea, 337 Ga. App. 103, 786 S.E.2d 707 (2016).

C.J.S.

- 49 C.J.S., Judgments, §§ 77, 78.

ALR.

- Judgments enforcing contract contrary to public policy as subject to collateral attack, 30 A.L.R. 1100.

Right of one liable for death or injury to have damages awarded in judgment against him paid over to physician or nurse for medical attention given to injured or deceased person, 66 A.L.R. 711.

Power of court to add interest to verdict returned by jury, 72 A.L.R. 1150.

Right to have jury polled regarding method of reaching verdict, 86 A.L.R. 203.

Absence of accused at return of verdict in felony case, 23 A.L.R.2d 456.

Post-judgment interest.

- O.C.G.A. § 9-12-10 forbids post-judgment interest except on the principal or original debt. DOT v. Consolidated Equities Corp., 181 Ga. App. 672, 353 S.E.2d 603 (1987).

Post-judgment interest under O.C.G.A. § 13-6-11. - Trial court properly excluded an award of pre-judgment interest in calculating the amount of post-judgment interest and properly applied post-judgment interest to the award of attorney fees under O.C.G.A. § 13-6-11. Davis v. Whitford Props., 282 Ga. App. 143, 637 S.E.2d 849 (2006).

Use of prejudgment interest to compute post judgment interest.

- O.C.G.A. § 9-12-10 expressly excludes prejudgment interest, when authorized, to be included in the amount used to compute post judgment interest. DOT v. Consolidated Equities Corp., 181 Ga. App. 672, 353 S.E.2d 603 (1987); Groover v. Commercial Bancorp, 220 Ga. App. 13, 467 S.E.2d 355 (1996).

Judgment creditor was not entitled in a garnishment proceeding to collect interest on prejudgment interest. Lott v. Arrington & Hollowell, P.C., 258 Ga. App. 51, 572 S.E.2d 664 (2002).

Interest on open account should not be included in verdict unless it is specified as such. Linder v. Renfroe, 1 Ga. App. 58, 57 S.E. 975 (1907).

Failure to show dates in pleading.

- In a suit for a stated sum "besides interest" on an open account when judgment was rendered for the principal amount claimed, besides a stated sum as interest, failure to include in the petition or exhibit the dates or other data upon which interest might be computed was an amendable defect, and did not render judgment unauthorized by pleadings or subject to motion in arrest of judgment. Holmes v. Reville, 27 Ga. App. 552, 109 S.E. 417 (1921).

Mistake in one's favor making interest too small is not a good ground of exception by defendant. Gunn v. Tackett, 67 Ga. 725 (1881).

Amount of principal and interest not specified.

- When, in the foreclosure of a mortgage on personalty, principal and interest were not separated, foreclosure was fatally defective. Harris v. Usry, 77 Ga. 426 (1886).

When the verdict in favor of the plaintiff includes both principal and interest, and does not specify the amount of each, a new trial will be required unless the plaintiff will renounce all future interest upon the judgment. Hubbard v. McRae, 95 Ga. 705, 22 S.E. 714 (1895); Bentley v. Phillips, 171 Ga. 866, 156 S.E. 898 (1930).

When a judgment permitted the plaintiffs to recover "the sum of" principal, prejudgment interest, as well as costs, with interest accruing on the sum total, it clearly provided for interest on interest and was subject to amendment to provide that interest after judgment should accrue on the principal sum only. Windermere v. Bettes, 211 Ga. App. 177, 438 S.E.2d 406 (1993).

Interest on principal sum only.

- Judgment may be legally entered for principal sum and interest due on the claim sued on to date of judgment; however, such judgment only bears interest from the judgement's date on the principal sum, and interest found to be due at date of judgment does not bear interest. Southern Loan Co. v. McDaniel, 50 Ga. App. 285, 177 S.E. 834 (1934).

Only that portion of judgment which represents principal due on the original debt is entitled to bear interest. Bank of Tupelo v. Collier, 191 Ga. 852, 14 S.E.2d 59 (1941).

Judgment providing for interest on interest is erroneous. State Hwy. Dep't v. Godfrey, 118 Ga. App. 560, 164 S.E.2d 340 (1968); Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191, 489 S.E.2d 53 (1997).

Correction after term when judgment rendered.

- Even after term when judgment or decree is rendered, irregularity may be so corrected by amendment that only the principal sum will bear interest, if by an inspection of the record, including the pleadings and verdict, or the approved findings of a master or commissioner, and without extraneous proof, the respective amounts of principal and interest can be correctly segregated. Bank of Tupelo v. Collier, 192 Ga. 409, 15 S.E.2d 499 (1941).

After-accruing interest.

- Judgment as to after-accruing interest is limited to the principal sum found. Ivester v. Brown, 157 Ga. 376, 121 S.E. 241 (1924).

Amendment on motion in writ of fieri facias.

- When principal and interest were segregated in accordance with the approved findings of the commissioner, the court did not err, on motion of plaintiff in writ of fieri facias, in amending the original decree rendered in an equitable partition proceeding. Bank of Tupelo v. Collier, 192 Ga. 409, 15 S.E.2d 499 (1941).

Effect of final judgment rendered for less than assessors' award.

- When, in a condemnation proceeding under the "three assessor" law as contained in former Code 1933, § 36-601 et seq. (see now O.C.G.A. § 22-2-80 et seq.), the amount of the final judgment was less than the award made by the assessors, the condemnee was not liable for the payment of interest on the difference in the amount of the award and the judgment except from the date of the judgment. City of Atlanta v. Lunsford, 105 Ga. App. 247, 124 S.E.2d 493 (1962).

Judgments by confession.

- This section includes judgments obtained by confession. Williams v. Atwood, 52 Ga. 585 (1874).

Condemnation proceedings.

- Prejudgment interest is not to be included as a portion of "just and adequate compensation" in a condemnation case. DOT v. Consolidated Equities Corp., 181 Ga. App. 672, 353 S.E.2d 603 (1987).

Foreign judgment cannot be collaterally attacked as in violation of O.C.G.A. § 9-12-10 since such an attack involves the merits of the award rather than a jurisdictional or fraud issue. Osborne v. Bank of Delight, 173 Ga. App. 322, 326 S.E.2d 523 (1985).

Interest properly awarded.

- When an attorney sued a former client's ex-spouse to enforce a lien on the former client's former marital residence, which was titled in the ex-spouse's name, the trial court's award of post-judgment interest did not violate O.C.G.A. § 9-12-10, allowing an award of interest on a principal sum only, even though the judgment on which the lien was based included an award of interest, because the interest awarded by the trial court was based on the ex-spouse's breach of a duty, under the separation agreement, to pay the attorney's lien. Northen v. Tobin, 262 Ga. App. 339, 585 S.E.2d 681 (2003).

Cited in Sharpe v. City of Waycross, 185 Ga. 208, 194 S.E. 522 (1937); United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); Fried v. Morris & Eckels Co., 118 Ga. App. 595, 164 S.E.2d 732 (1968); Newby v. Maxwell, 121 Ga. App. 18, 172 S.E.2d 458 (1970); Dampier v. Citizens & S. Nat'l Bank, 129 Ga. App. 240, 199 S.E.2d 330 (1973); Sirmans v. Citizens & S. Nat'l Bank, 129 Ga. App. 551, 199 S.E.2d 894 (1973); Laminoirs-Trefileries-Cableries de Lens, S.A. v. Southwire Co., 484 F. Supp. 1063 (N.D. Ga. 1980); Stinson v. Georgia Dep't of Human Resources Credit Union, 171 Ga. App. 303, 319 S.E.2d 508 (1984); Dixieland Truck Brokers, Inc. v. International Indem. Co., 210 Ga. App. 160, 435 S.E.2d 520 (1993); Biggs v. Heriot, 249 Ga. App. 461, 549 S.E.2d 131 (2001); Threatt v. Forsyth County, 262 Ga. App. 186, 585 S.E.2d 159 (2003).

Am. Jur. 2d.

- 44B Am. Jur. 2d, Interest and Usury, § 38 et seq.

C.J.S.

- 47 C.J.S., Interest and Usury; Consumer Credit, § 60 et seq.

ALR.

- Power of court to add interest to verdict returned by jury, 72 A.L.R. 1150.

Statute of limitation applicable to interest on judgment, 120 A.L.R. 719.

Date of verdict or date of entry of judgment thereon as beginning of interest period on judgment, 1 A.L.R.2d 479.

Recovery of interest on claim against a governmental unit in absence of provision in contract or express statutory provision, 24 A.L.R.2d 928.

Right to interest on unpaid alimony, 33 A.L.R.2d 1455.

Interest on decree or judgment of probate court allowing a claim against estate or making an allowance for services, 54 A.L.R.2d 814.

Liability insurer's liability for interest and costs on excess of judgment over policy limit, 76 A.L.R.2d 983.

Date from which interest on judgment starts running, as affected by modification of amount of judgment on appeal, 4 A.L.R.3d 1221.

Right to interest, pending appeal, of judgment creditor appealing unsuccessfully on ground of inadequacy, 15 A.L.R.3d 411; 11 A.L.R.4th 1099.

Running of interest on judgment where both parties appeal, 11 A.L.R.4th 1099.

Retrospective application and effect of state statute or rule allowing interest or changing rate of interest on judgments or verdicts, 41 A.L.R.4th 694.

Prejudgment interest awards in divorce cases, 62 A.L.R.4th 156.

Liability of insurer for prejudgment interest in excess of policy limits for covered loss, 23 A.L.R.5th 75.

Date on which post judgment interest, under 28 U.S.C. § 1961 (a), begins to accrue on federal court's award of attorneys' fees, 111 A.L.R. Fed. 615.

Judgment failing to describe security as security.

- Judgment is not void by reason of failing to describe the security as security, but is amendable. Saffold v. Wade, 56 Ga. 174 (1876).

Plaintiff or attorney must specify status of parties to promissory note.

- Former Code 1933, §§ 110-306 and 110-307 (see now O.C.G.A. §§ 9-12-11 and9-13-30) place the burden upon the plaintiff or the plaintiff's attorney in an action against a surety or an endorser on a promissory note to specify the status of the parties to the note; when this was not done the judgment and execution should be corrected under former Code 1933, § 110-311 (see now O.C.G.A. § 9-12-14). Franklin v. Sea Island Bank, 120 Ga. App. 654, 171 S.E.2d 866 (1969).

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judgments, §§ 79, 80.

C.J.S.

- 49 C.J.S., Judgments, § 117 et seq.

Am. Jur. 2d.

- 20 Am. Jur. 2d, Costs, § 86 et seq.

No recovery of amount greater than penalty.

- Sureties of a sheriff, after recoveries have been had against the sureties to the amount of the sureties' bond, may defend themselves at law against all pending or future suits on that ground. Bothwell v. Sheffield, 8 Ga. 569 (1850).

Penalty in bond being a certain sum, the surety is not liable thereon for more than that sum, with interest. Westbrook v. Moore, 59 Ga. 204 (1877).

This section does not provide for recovery against surety of an amount greater than the penalty of the bond; but rather this section provides for a lesser recovery. Gullatt v. Blankenship, 42 Ga. App. 139, 155 S.E. 353 (1930).

Peace bond.

- In a suit against the obligor and the obligor's sureties in a peace bond for a breach of peace, judgment for the full amount of the penalty stipulated in the bond will be awarded against the defendant and the defendant's sureties in case of a recovery. Shirley v. Terrell, 134 Ga. 61, 67 S.E. 436 (1910).

Bond in bastardy proceedings.

- When it did not appear either from the allegations in the petition or from the evidence adduced that the bond sued on was the statutory bond required in bastardy proceedings, the only recovery permissible was the amount of the actual damage sustained as a result of the breach of the bond. Graves v. Campbell, 33 Ga. App. 505, 126 S.E. 854 (1925), later appeal, 35 Ga. App. 418, 133 S.E. 267 (1926).

Subcontractor bonds.

- Surety on performance and payment bonds for a subcontractor could not be held liable to the general contractor for both the 25 percent penalty for bad faith and for attorney's fees and expenses of litigation. Congress Re-Insurance Corp. v. Archer-Western Contractors, 226 Ga. App. 829, 487 S.E.2d 679 (1997).

Am. Jur. 2d.

- 12 Am. Jur. 2d, Bonds, § 37 et seq.

ALR.

- Validity of judgment entered on appeal or supersedeas bond without previous notice and opportunity to be heard, 86 A.L.R. 308.

Entire penalty as recoverable for breach of bond given to public as condition of license or other privilege, or conditioned on compliance with law, 103 A.L.R. 405.

Attorneys' fees as element of damages allowable in action on injunction bond, 164 A.L.R. 1088.

Claim not raised before trial court could not be raised for first time on appeal.

- Trial court properly denied a motion to correct a judgment entered against two debtors and their guarantors, five years and eight months after the expiration of the term of court in which the judgment was entered, as they failed to show any entitlement to relief or exception as to why they could not have timely sought the relief requested, and the debtors and their guarantors failed to raise a claim regarding O.C.G.A. § 9-12-14 in the court below, so it was not properly before the court. De La Reza v. Osprey Capital, LLC, 287 Ga. App. 196, 651 S.E.2d 97 (2007), cert. denied, No. S07C1928, 2007 Ga. LEXIS 819 (Ga. 2007).

When judgment enlarges on the verdict the judgment may be amended to conform thereto. Segers v. Williams, 147 Ga. 146, 93 S.E. 81 (1917).

Judgment enlarging on a verdict may be amended to conform thereto, even if the judgment includes a party defendant against whom the jury made no finding. Rucker v. Williams, 129 Ga. 828, 60 S.E. 155 (1908).

One may prop the execution by working on the judgment, though one cannot prop the levy by working on the execution. Pound v. Faulkner, 193 Ga. 413, 18 S.E.2d 749 (1942).

Amendment may be had at a subsequent term. King v. Rodgers, 22 Ga. App. 198, 95 S.E. 766 (1918).

Modification after end of term allowed when merits not affected.

- Trial court does not err in modifying the court's original order after the end of the court's term since the subsequent modification in no way affected the merits. Burns v. Fedco Mgt. Co., 168 Ga. App. 15, 308 S.E.2d 38 (1983).

Amendment may relate back to the subject matter of the original verdict and judgment, and is not the same thing as setting aside one judgment and entering another; interest is allowable on the judgment on the verdict. Giant Peanut Co. v. Carolina Chems., Inc., 135 Ga. App. 597, 218 S.E.2d 305 (1975).

Motion to amend made nine years after the judgment held not barred. Rucker v. Williams, 129 Ga. 828, 60 S.E. 155 (1908).

Even after judgment has been reviewed by Supreme Court and affirmed, the judgment may be amended. Moses v. Eagle & Phenix Mfg. Co., 68 Ga. 241 (1881).

Amendment after issuance of writ of fieri facias.

- Amendments to judgments may be made in a proper case even after a writ of fieri facias has issued, and the fact that the case has been affirmed by an appellate court in the meantime does not prevent such amendment. Giant Peanut Co. v. Carolina Chems., Inc., 135 Ga. App. 597, 218 S.E.2d 305 (1975).

Eliminating illegal interest.

- When an affidavit of illegality was interposed to a writ of fieri facias upon the ground that the judgment upon which the fieri facias issued included certain interest not warranted by the pleadings, it was not error, as against the defendant, to amend the judgment and fieri facias so as to eliminate the illegal interest, and thereafter to render judgment against the affidavit of illegality. Haygood v. E.B. Clark Co., 30 Ga. App. 392, 118 S.E. 461 (1923).

Modification of decree after expiration of term.

- After expiration of the term at which a decree was entered, it is out of the power of the court to modify and revise the decree in any matter of substance or in any matter affecting the merits. Phillips v. Bowen, 206 Ga. 268, 56 S.E.2d 503 (1949); Reid v. Strickland, 115 Ga. App. 394, 154 S.E.2d 778 (1967).

Judgment bears upon matters in issue at time of the judgment's rendition, and cannot be amended so as to conform to facts not adjudicated at the time. Scarborough v. Merchants & Farmers Bank, 131 Ga. 590, 62 S.E. 1040 (1908); Richards v. McHan, 139 Ga. 37, 76 S.E. 382 (1912); Phillips v. Bowen, 206 Ga. 268, 56 S.E.2d 503 (1949).

When a judgment does not follow the verdict upon which the judgment was issued, the judgment may be amended by order of the court having rendered the judgment so as to make the judgment conform thereto. Powell v. Moore, 202 Ga. 62, 42 S.E.2d 110 (1947).

Revision nunc pro tunc.

- Judgment may be revised or amended, or entered of record, nunc pro tunc, on proper motion, at a term subsequent to that at which the judgment was rendered, so as to make the judgment speak the truth of the decision that was actually rendered, or to make the judgment conform to the verdict. Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611, 51 S.E.2d 872 (1949).

Amendment concerning things occurring subsequent to judgment.

- Judgment which follows a verdict that is in conformity with the issues made by the pleadings cannot, at a subsequent term, be amended on motion, since the matter sought by amendment concerns things that occurred subsequent to the judgment, or as to matters that could have been determined on the trial. Phillips v. Bowen, 206 Ga. 268, 56 S.E.2d 503 (1949).

Amendment eliminating party's interest in contract.

- In a breach of contract case arising out of an LLC operating agreement, it was not clear that the jury intended to extinguish a former LLC member's interest in the operating agreement by the jury's verdict awarding the former member damages, and under O.C.G.A. §§ 9-12-7,9-12-9, and9-12-14, the trial court could not vary the judgment from the terms of the verdict. Kaufman Development Partners, L.P. v. Eichenblatt, 324 Ga. App. 71, 749 S.E.2d 374 (2013).

Judgment which, although dormant, still survives as a debt of record, enforceable by suit, may be so amended as to show an irregularity therein. Leonard v. Collier, 53 Ga. 387 (1874); Williams v. Merritt, 109 Ga. 217, 34 S.E. 1012 (1900).

Amending matters precluded by res judicata not permitted. Glennville Bank v. Deal, 146 Ga. 127, 90 S.E. 958 (1916); Deal v. Glennville Bank, 21 Ga. App. 619, 94 S.E. 835 (1918).

As to matters of form ascertainable from the pleadings and verdict in a case, the decree entered thereon may be amended at any time, even after execution. Reid v. Strickland, 115 Ga. App. 394, 154 S.E.2d 778 (1967).

When a judgment is improperly entered as to matters of form, the decree entered thereon may be amended at any time, even after execution. Harrell v. Kelley, 21 Ga. App. 525, 94 S.E. 830 (1918).

Typographical errors.

- When errors appearing in a judgment as finally entered up are typographical, the errors may be corrected by proper amendment. Clark v. Jackson, 23 Ga. App. 269, 97 S.E. 883 (1919).

Amendment to show judgment is against defendants.

- When a verdict is rendered against the defendants in an action, and the judgment does not show that the judgment is against the defendants, the judgment may be amended to conform to the verdict and show that the judgment is against the defendants. Miller v. Jackson, 49 Ga. App. 309, 175 S.E. 409 (1934).

When a verdict is based on an agreement of counsel, but nothing in the pleadings or verdict shows this fact, the court does not err in denying a motion to amend the judgment entered on the verdict so as to conform the judgment to the true intent of the agreement at a subsequent term of court. Reid v. Strickland, 115 Ga. App. 394, 154 S.E.2d 778 (1967).

Amending to provide for payment of costs.

- When a defendant is convicted, but the judge fails to enter a judgment for costs, it is proper for the judge to enter a nunc pro tunc order amending the former judgment to provide for the payment of costs, after the expiration of the term at which the judgment was entered, and even after an execution for the costs has issued. Pound v. Faulkner, 193 Ga. 413, 18 S.E.2d 749 (1942).

Amending to incorporate plat utilized by jury.

- Trial judge has power to amend a judgment to incorporate the plat utilized by the jury in determining the verdict and thereby conform the description of the condemned lands to the evidence. Norton Realty & Loan Co. v. Board of Educ., 129 Ga. App. 668, 200 S.E.2d 461 (1973).

When judgment against a garnishee fails to conform to the verdict, the judgment may be amended to conform therewith. Merchants' Grocery Co. v. Albany Hdwe. & Mill Supply Co., 44 Ga. App. 112, 160 S.E. 658 (1931).

Power of courts to correct clerical errors and misprisions and to make the record speak the truth by nunc pro tunc amendments after the term does not enable the courts to change the court's judgments in substance or in any material respect. Rogers v. Rigell, 183 Ga. 455, 188 S.E. 704 (1936).

Lapse of time is not sufficient to constitute a bar. Segers v. Williams, 147 Ga. 146, 93 S.E. 81 (1917).

Amendment must be in writing and signed by the judge; there is no such thing as an oral amendment of a sentence or judgment. Mathews v. Swatts, 16 Ga. App. 208, 84 S.E. 980 (1915).

Power to amend and revise does not include the power to supply judicial omissions so as to include what a court might or should have decided, but did not actually decide. Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611, 51 S.E.2d 872 (1949).

Judgment changing verdict in matters of substance.

- When the trial judge entered a lengthy judgment, which changed the verdict in matters of substance, and added numerous powers and directives which were not contained in the verdict, which the judge had no authority to do, the court may be directed to modify that portion of the decree involved in the litigation to conform to the verdict of the jury. Hiscock v. Hiscock, 227 Ga. 329, 180 S.E.2d 730 (1971).

Instance of amendment of judgment error.

- It was error for the court to amend a judgment in trover based on a verdict finding a part of the property to belong to the defendant, thereby rendering a money judgment in favor of the defendant as to the property so found for the defendant, when the plaintiff's petition did not allege the value of the property found for the defendant and the jury made no finding as to its value. Betts v. Mathews, 72 Ga. App. 678, 34 S.E.2d 729 (1945).

Specification of status of parties to promissory note.

- Former Civil Code 1933, §§ 110-306 and 39-107 (see now O.C.G.A. §§ 9-12-11 and9-13-30) placed the burden upon the plaintiff or the plaintiff's attorney in an action against a surety or an endorser on a promissory note to specify the status of the parties to the note. When this was not done, the judgment and execution should be corrected under former Code 1933, § 110-311 (see now O.C.G.A. § 9-12-14). Franklin v. Sea Island Bank, 120 Ga. App. 654, 171 S.E.2d 866 (1969).

When an excess penalty included in a tax execution is illegal, such excess does not invalidate the entire claim, but requires only a partial abatement or amendment; a dismissal of the execution for this reason is unauthorized. State Revenue Comm'n v. National Biscuit Co., 49 Ga. App. 409, 175 S.E. 607 (1934).

Power of a justice of the peace to amend a judgment rendered by the justice of the peace is limited to matters of form. The justice of the peace has no power to change its legal tenor or effect. Barnes v. Mechanics' Sav. Bank, 22 Ga. App. 214, 95 S.E. 757 (1918).

Justice of peace court without authority to amend.

- While in courts of record, judgments are in the breast of the court until the end of the term, and may be amended, modified, set aside, or changed, in form or effect, at the pleasure of the court, this power does not exist in justice of the peace courts. Field v. Jordan, 124 Ga. 685, 52 S.E. 885 (1906); Barnes v. Mechanics' Sav. Bank, 22 Ga. App. 214, 95 S.E. 757 (1918); Reid v. Strickland, 115 Ga. App. 394, 154 S.E.2d 778 (1967).

Cited in Leonard v. Collier, 53 Ga. 387 (1874); Gay v. Cheney, 58 Ga. 304 (1879); Moses v. Eagle & Phenix Mfg. Co., 68 Ga. 241 (1881); Sanders v. Williams, 75 Ga. 283 (1885); Merchants Grocery Co. v. Albany Hdwe. & Mill Supply Co., 44 Ga. App. 412, 160 S.E. 658 (1931); Neely v. Mobley, 49 Ga. App. 541, 176 S.E. 527 (1934); Brown v. Cole, 196 Ga. 843, 28 S.E.2d 76 (1943); McCartney v. McCartney, 217 Ga. 200, 121 S.E.2d 785 (1961); Hesters v. Sammons, 106 Ga. App. 126, 126 S.E.2d 484 (1962); Davis v. Howell, 218 Ga. 169, 126 S.E.2d 766 (1962); Davis v. Howell, 220 Ga. 287, 138 S.E.2d 563 (1964); Johnson v. Johnson, 223 Ga. 833, 158 S.E.2d 383 (1967); Parker v. Spurlin, 227 Ga. 183, 179 S.E.2d 251 (1971); Rosenberg v. Mossman, 140 Ga. App. 694, 231 S.E.2d 417 (1976); Tingle v. Cate, 142 Ga. App. 467, 236 S.E.2d 127 (1977); Insurance Co. v. Dills, 145 Ga. App. 183, 243 S.E.2d 549 (1978); Lowe v. Lowe, 243 Ga. 398, 254 S.E.2d 323 (1979); Hoffman v. Clendenon, 150 Ga. App. 98, 256 S.E.2d 676 (1979); American Petro. Prods., Inc. v. Mom & Pop Stores, Inc., 231 Ga. App. 1, 497 S.E.2d 616 (1998); Taylor v. Peachbelt Props., 293 Ga. App. 335, 667 S.E.2d 117 (2008).

C.J.S.

- 49 C.J.S., Judgments, §§ 77 et seq., 368.

ALR.

- Power of court to amend indictment, 7 A.L.R. 1516; 68 A.L.R. 928.

Power of appellate court to remit portion of verdict or judgment covering period barred by statute of limitations, 26 A.L.R.2d 956.

Court's power to increase amount of verdict or judgment over either party's refusal or failure to consent to addition, 56 A.L.R.2d 213.

Editor's notes.

- Many of the cases cited under O.C.G.A. § 9-12-15 were decided under procedure obtaining prior to enactment of the Civil Practice Act of 1966 (Chapter 11 of this title). See O.C.G.A. § 9-11-60 as to relief from judgments under the Civil Practice Act.

Code section carrying forward these provisions.

- Provisions of former Code 1933, § 110-705 (see now O.C.G.A. § 9-12-15) were substantially carried forward in Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60). Cook v. Bright, 150 Ga. App. 696, 258 S.E.2d 326 (1979).

Scope of section.

- Under O.C.G.A. § 9-12-15, a judgment may not be set aside for any defect that is aided by a verdict or amendable as to matter of form. Grier v. Employees Fin. Servs., 158 Ga. App. 813, 282 S.E.2d 342 (1981).

This section is applicable to motions in arrest of judgments, not to motions for new trial, and seems then to apply to formal defects only. City of Rome v. Shropshire, 112 Ga. 93, 37 S.E. 168 (1900).

Defect may be cured by verdict.

- Though a cause of action may be defectively set forth, the defect may be cured by the verdict. Pattillo v. Mangum, 179 Ga. 784, 177 S.E. 604 (1934).

Motion to set aside a judgment will lie for any defect not amendable which appears on the face of the record or pleadings, but since the verdict cures any defect which might have been corrected by amendment, even though it could be assumed that the plaintiff could have been required to amend the plaintiff's petition so as to allege specifically and in terms that the defendant was indebted to the plaintiff as payee on unconditional, unendorsed, and unpaid promise to pay, the petition did not fail to set forth a cause of action, it being the general rule that the payee of a note is presumed to continue in its ownership. Hobbs v. Citizens Bank, 32 Ga. App. 522, 124 S.E. 72 (1924). See also Strickland v. Citizens Nat'l Bank, 15 Ga. App. 464, 83 S.E. 883 (1914); Brooke v. Fouts, 37 Ga. App. 563, 140 S.E. 902 (1927).

Unless a pleading shows on the pleading's face that a cause of action does not exist, or the pleading is so defective that the pleading could not be amended at all, or the defect is of such character as renders unenforceable or meaningless a verdict and judgment based thereon, defects in the pleading are cured by the verdict on the theory that there is a conclusive presumption that the jury had before it sufficient evidence to authorize the verdict on every essential ingredient, necessary for the verdict's rendition, which would have been admissible or relevant under any proper amendment. J.R. Watkins Co. v. Herring, 51 Ga. App. 396, 180 S.E. 525 (1935).

Defect cured by judgment.

- Defect which would be amendable before verdict will be cured by the judgment in the case. Mercer v. Nowell, 179 Ga. 37, 175 S.E. 12 (1934).

Defect making legal judgment impossible.

- Petition cannot be said to be so defective that no legal judgment can be rendered thereon when an amendment would have perfected the judgment. Stowers v. Harris, 194 Ga. 636, 22 S.E.2d 405 (1942).

If the pleadings are so defective that no legal judgment can be rendered, the judgment will be arrested or set aside. Auld v. Schmelz, 199 Ga. 633, 34 S.E.2d 860 (1945).

Motion in arrest of judgment can be sustained only for defects appearing on the face of the pleadings which could not be cured by amendment and are not aided by the verdict. Pattillo v. Mangum, 179 Ga. 784, 177 S.E. 604 (1934).

Facts necessary to render judgment subject to motion in arrest of judgment.

- Petition, although defective and subject to general demurrer (now motion to dismiss), in that the petition omits to set forth all the necessary ingredients of a cause of action, will not render the judgment based thereon subject to a motion in arrest of judgment, unless the petition shows on the petition's face that a cause of action did not exist, or that the petition is so defective that the petition could not be amended at all, or that the defect in the petition is of such character as renders unenforceable or meaningless the verdict and judgment based thereon. This must be the rule, for the reason that, save for the exceptions stated, the defects in the pleadings are cured by the verdict, on the theory that there is a conclusive presumption that the jury had before it sufficient evidence to authorize the verdict on every essential ingredient, necessary for the judgment's rendition, which would have been admissible or relevant under any proper amendment. Rollins v. Personal Fin. Co., 49 Ga. App. 365, 175 S.E. 609 (1934); Burch v. Dodge County, 193 Ga. 890, 20 S.E.2d 428 (1942); Cravey v. Citizens & S. Nat'l Bank, 110 Ga. App. 284, 138 S.E.2d 321 (1964); Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556, cert. dismissed, 222 Ga. 280, 152 S.E.2d 692 (1966).

Motion to arrest held to be without merit.

- When nowhere in the motion for arrest was it alleged that the judgment sought to be arrested was procured by accident, mistake, or fraud or through any defect not amendable appearing on the face of the record or pleadings, or by perjury, or any other irregularity, the motion was without merit. Stefanick v. Ouellette, 97 Ga. App. 644, 104 S.E.2d 156 (1958).

When motion to arrest may be interposed.

- Motion in arrest of or to set aside a judgment may be interposed when it appears from the face of the record or the pleadings that no cause of action exists against the defendant. Smith v. Franklin Printing Co., 54 Ga. App. 385, 187 S.E. 904 (1936).

Defenses in motion to arrest judgment barred by waiver.

- When the defendant is served, and appears and pleads to the merits, and a verdict and judgment are rendered against the defendant, the defendant cannot, in a motion to arrest the judgment, urge matters of defense which were put in issue and passed upon by the court and jury. Olshine v. Bryant, 55 Ga. App. 90, 189 S.E. 572 (1936).

Test for collateral attack on judgment.

- One of the tests in determining whether a judgment is absolutely void and subject to collateral attack is whether the party attacking the judgment had been a party thereto. A motion in arrest of judgment could have been sustained for defects appearing in the face of the pleadings, which could not have been aided by amendment or cured by the verdict. Deck v. Shields, 195 Ga. 697, 25 S.E.2d 514 (1943).

Cited in Hudson v. Cohen, 34 Ga. App. 119, 128 S.E. 205 (1925); Henderson v. Ellarbee, 35 Ga. App. 5, 131 S.E. 524 (1926); Flanigan v. Hutchins, 164 Ga. 313, 138 S.E. 793 (1927); Weems v. Kidd, 37 Ga. App. 8, 138 S.E. 863 (1927); Willcox v. Beechwood Band Mill Co., 166 Ga. 367, 143 S.E. 405 (1928); Merchants' Grocery Co. v. Albany Hdwe. & Mill Supply Co., 44 Ga. App. 112, 160 S.E. 658 (1931); McBride v. Sconyers, 46 Ga. App. 235, 167 S.E. 309 (1933); Hayes v. American Bankers' Ins. Co., 46 Ga. App. 552, 167 S.E. 731 (1933); Henderson v. American Hat Mfg. Co., 57 Ga. App. 10, 194 S.E. 254 (1937); Underwood v. D.C. Heath & Co., 64 Ga. App. 180, 12 S.E.2d 464 (1940); Deck v. Shields, 195 Ga. 697, 25 S.E.2d 514 (1943); Veneer Mfg. Co. v. Hill, 72 Ga. App. 28, 32 S.E.2d 838 (1945); Barbee v. Barbee, 201 Ga. 763, 41 S.E.2d 126 (1947); McEntyre v. Burns, 81 Ga. App. 239, 58 S.E.2d 442 (1950); Wilder v. Rowell, 83 Ga. App. 585, 64 S.E.2d 96 (1951); Miller v. Turner, 209 Ga. 255, 71 S.E.2d 517 (1952); Hinkle v. Hinkle, 209 Ga. 554, 74 S.E.2d 657 (1953); Harper v. Mayes, 210 Ga. 183, 78 S.E.2d 490 (1953); Busey v. Milam, 95 Ga. App. 198, 97 S.E.2d 533 (1957); Stefanick v. Ouellette, 97 Ga. App. 644, 104 S.E.2d 156 (1958); Crawford v. Sumerau, 101 Ga. App. 32, 112 S.E.2d 682 (1960); Rielly v. Crook, 112 Ga. App. 334, 145 S.E.2d 110 (1965); Saturday v. Saturday, 113 Ga. App. 251, 147 S.E.2d 798 (1966); Daniels v. Sanders, 114 Ga. App. 495, 151 S.E.2d 820 (1966); Bragg v. Bragg, 224 Ga. 294, 161 S.E.2d 313 (1968); Alexander v. Askin Squire Corp., 144 Ga. App. 662, 242 S.E.2d 324 (1978); Simonds v. Simonds, 145 Ga. App. 227, 243 S.E.2d 545 (1978); Law Offices of Johnson & Robinson v. Fortson, 175 Ga. App. 706, 334 S.E.2d 33 (1985); Matthews v. Neal, Greene & Clark, 177 Ga. App. 26, 338 S.E.2d 496 (1985).

Judgment curing defect in summons or bill of particulars.

- Irregularity in the summons or bill of particulars attached thereto, which is not excepted to by the defendant, is waived by the defendant, and cured by a judgment rendered on the merits of the case. Harris v. Bennett Bros., 72 Ga. App. 589, 34 S.E.2d 615 (1945).

Degree of discretion for setting aside judgment based on jury verdict.

- Broad discretion in judge to arrest or set aside a judgment during the term in which the judgment was rendered, for defects not amendable which appear on the face of the record or pleadings, does not apply to a judgment based on a jury verdict. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).

When motion to arrest default judgment permitted.

- When a default judgment has been rendered, after the time for opening the default has passed, the defendant may move in arrest thereof for any defect not amendable which appears on the face of the record or pleadings, but such judgment may not be arrested or set aside for any defect in the pleadings that is aided by the verdict. Whitley v. Currington, 105 Ga. App. 681, 125 S.E.2d 678 (1962).

Motion in arrest of judgment based on a deficiency in the petition on which judgment was rendered is insufficient when such motion and the record fail to show, in addition to the fact that the petition did not state a cause of action, the further fact that no cause of action existed. Whitley v. Currington, 105 Ga. App. 681, 125 S.E.2d 678 (1962).

Service defect on face of record.

- When a defect in the service of process appears on the face of the record, it is subject to a motion in arrest or a motion to set aside the judgment, and no traverse is necessary. Jennings v. Davis, 92 Ga. App. 265, 88 S.E.2d 544 (1955).

Matters not appearing on face of record.

- Any motion to set aside a verdict, based on matters not appearing on the face of the record, is a motion for a new trial, and is subject to all the rules of law governing such motions. Johnston v. Ford, 43 Ga. App. 132, 158 S.E. 527 (1931).

Motion to set aside a verdict based on matters not appearing on the face of the record is not an available remedy to avoid a verdict, unless the motion is of such form and content as to be in substance a motion for a new trial, and complies with the rules governing such a motion. Wrenn v. Allen, 180 Ga. 613, 180 S.E. 104 (1935).

Erroneous rulings on pleadings are not proper grounds for motions in arrest or to set aside judgments, nor are rulings on pleadings proper grounds of a motion for new trial. Hambrick v. Nova, 112 Ga. App. 258, 144 S.E.2d 922 (1965).

Waiver prevents attack on jurisdiction in motion to arrest judgment.

- When a defendant appears and pleads to the merits of a case, without pleading to the jurisdiction of the court, and without excepting thereto, the defendant thereby admits the jurisdiction of the court; and, after verdict and judgment, the question of jurisdiction cannot be raised in a motion to arrest the judgment. Olshine v. Bryant, 55 Ga. App. 90, 189 S.E. 572 (1936).

Pendency of undisposed motion to dismiss.

- When a petition to vacate and set aside the judgment could have been amended as to meet grounds of demurrer (now motion to dismiss) interposed by the defendant, the pendency of the demurrers undisposed of did not constitute such a defect appearing upon the face of the record as would have authorized arresting or setting aside the judgment. Oliver v. Fireman's Ins. Co., 42 Ga. App. 99, 155 S.E. 227 (1930), rev'd on other grounds, 46 Ga. App. 507, 167 S.E. 909 (1932).

Procedure required for setting aside.

- Judgment based on the jury's verdict cannot be set aside by a motion to set aside as long as the verdict upon which the judgment is based stands and has not been set aside by proper procedure. Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556, cert. dismissed, 222 Ga. 820, 152 S.E.2d 693 (1966).

Negligence in failing to examine original pleadings.

- Negligence of a client or the client's attorney in failing to examine the original pleadings in a case is not ground for setting aside the judgment. Rahal v. Titus, 110 Ga. App. 122, 138 S.E.2d 68 (1964).

Defects in matters of form can be amended. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).

Irregularity in judgment as to the judgment's amount may be corrected by amendment. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).

Sums recoverable determinable by mathematical calculation.

- When substantial issues between parties in an attachment proceeding had been determined and the sums recoverable from funds in the hands of the garnishees to make up the amount of the verdict were easily ascertainable by subtraction, judgment for the plaintiff could be corrected by amendment, and it was not error to sustain the general demurrer (now motion to dismiss) to the defendant's motion in arrest of judgment. Homasote Co. v. Stanley, 104 Ga. App. 636, 122 S.E.2d 523 (1961).

Judgment for larger amount than sued for.

- Judgment for a larger amount than sued for is a mere irregularity which can be amended by a write off. Almon v. Citizens & S. Nat'l Bank, 108 Ga. App. 799, 134 S.E.2d 435 (1963).

Return of service is an amendable defect. Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E. 648 (1924).

Judgment not set aside when defects amendable.

- After judgment in attachment, the judgment will not be set aside on account of amendable defects in the bond and attachment. Steers & Co. v. Morgan & Armstrong, 66 Ga. 552 (1881).

Final judgment for divorce will not be set aside on the ground that petition does not set forth a cause of action since the deficiency in the petition is amendable and cured by the verdict. Guthas v. Guthas, 207 Ga. 177, 60 S.E.2d 370 (1950).

Order of forfeiture was not set aside pursuant to O.C.G.A. § 9-12-15 as the failure to verify a petition was an amendable defect. McDowell v. State of Ga., 290 Ga. App. 538, 660 S.E.2d 24 (2008).

When defect in attachment amendable.

- If an affidavit upon which the attachment was issued is to be construed as swearing to the grounds of attachment equivocally, as contended in stating the grounds of the motion to set aside, the defect was amendable. McDonald v. W.W. Kimball Co., 144 Ga. 105, 86 S.E. 234 (1915).

Failure in a trover suit to allege a demand was an amendable defect. Harris v. Bennett Bros., 72 Ga. App. 589, 34 S.E.2d 615 (1945).

Absence of prayers asking court to decree title to property to plaintiff.

- Petition for divorce and alimony, containing allegations that title and ownership of certain real and personal property were in plaintiff's name shows on its face a purpose to have title to such property decreed in the plaintiff, and the absence of specific prayers that title be decreed in the plaintiff's name is an amendable defect, and the want of such prayers is cured by judgment. Armstrong v. Armstrong, 206 Ga. 540, 57 S.E.2d 668 (1950).

Divorce petition failing to request alimony.

- Divorce petition which gives no indication by its pleadings that the wife is seeking an alimony judgment cannot be amended by the introduction of evidence when the husband has filed no pleadings and does not litigate the issues at the trial. Lambert v. Gilmer, 228 Ga. 774, 187 S.E.2d 855 (1972).

Judgment by a judge without a jury has the effect of a verdict, insofar as amendable defects in the pleadings are concerned. Davis v. Bray, 119 Ga. 220, 46 S.E. 90 (1903); Harvard v. Walton, 243 Ga. 860, 257 S.E.2d 280 (1979).

Proceeding to set aside judgment based on defective return.

- In a direct proceeding to set aside a judgment based on a defective return, the movant cannot rely on the incompleteness of the return but must affirmatively show that the service actually made was not such as is required by the statute. Jones v. Bibb Brick Co., 120 Ga. 321, 48 S.E. 25 (1904).

Failure to attach a bill of particulars to a declaration can be cured by amendment, and is not a good ground to set aside a judgment thereon. Wilson v. Strickler & Co., 66 Ga. 575 (1881); Harris v. Bennett Bros., 72 Ga. App. 589, 34 S.E.2d 615 (1945); Rich's, Inc. v. Coleman, 116 Ga. App. 419, 157 S.E.2d 814 (1967).

Petition of administrator to sell lands.

- Under former Civil Code 1910, § 4026 (see now O.C.G.A. § 53-8-23), the petition of an administrator for an order to sell the land of the administrator's intestate should set forth that such sale was necessary for the payment of the debts of the estate or for the purpose of distribution, but the omission of such an allegation was an amendable defect within the meaning of former Civil Code 1910, § 5960 (see now O.C.G.A. § 9-12-15), which was cured by a judgment granting leave to sell. Laramore v. Dudley, 145 Ga. 102, 88 S.E. 682 (1916).

Petition to recover land and mesne profits.

- Omission of specific prayers has been held to be an amendable defect. For example, failure to pray for damages in a petition to recover land and mesne profits is amendable. Fitzpatrick v. Paulding, 131 Ga. 693, 63 S.E. 213 (1908).

Omission of a prayer for process from a petition is an amendable defect. Guthrie v. Spence, 55 Ga. App. 669, 191 S.E. 188 (1937).

Omission of prayer for finding of true line in processioning case.

- In a processioning case, omission of prayer that alleged true line be found and decreed was an amendable defect. McCollum v. Thomason, 32 Ga. App. 160, 122 S.E. 800 (1924).

Issue as to entitlement to money recovery.

- When pleadings join issue as to whether the prevailing party is entitled to a recovery in money, the omission of a prayer for relief of that nature may be cured by amendment, and hence is not a ground of a motion in arrest of judgment. Wright v. Florida-Georgia Tractor Co., 218 Ga. 824, 130 S.E.2d 736 (1963); Betts v. First Ga. Bank, 177 Ga. App. 359, 339 S.E.2d 616 (1985).

Failure to include data in petition.

- Failure to include in the petition or exhibit the dates or other data upon which interest might be computed did not render the judgment unauthorized by the pleading. Holmes v. Reville, 27 Ga. App. 552, 109 S.E. 417 (1921).

While a declaration did not allege any express agreement, since the declaration did allege facts from which an agreement could be reasonably implied, the defect in the declaration was curable by amendment, and it was too late, after the verdict, to take advantage of the same by motion in arrest of judgment, the declaration in other respects setting forth a cause of action. Moss & Co. v. Stokeley, 95 Ga. 675, 22 S.E. 692 (1895).

Failure to include names of beneficiaries in homestead.

- Failure to set out the names of all the beneficiaries in a suit to subject homestead, and the informal way in which the property of the homestead estate was described, are defects which would be amendable before, and which would be cured by, a judgment in the case. Wegman Piano Co. v. Irvine, 107 Ga. 65, 32 S.E. 898, 73 Am. St. R. 109 (1899).

Failure to allege defendant's residence.

- Omission to allege, in the declaration, that the defendant resides in the county where the suit is brought, is amendable, may be waived by pleading to the merits, and is not good in arrest of judgment. Raney v. McRae, 14 Ga. 589, 60 Am. Dec. 660 (1854).

Misjoinder of causes of action could be eliminated before the verdict by appropriate amendment under operation of the rule that a defect in a petition which is amendable is cured by the verdict, such a defect unobjected to at the proper time before the verdict, would be cured by the verdict. Georgia R.R. & Banking Co. v. Tice, 124 Ga. 459, 52 S.E. 916, 4 Ann. Cas. 200 (1905); Morgan v. Morgan, 157 Ga. 907, 123 S.E. 13 (1924).

Objection to a petition on the ground of misjoinder of parties affords no ground to arrest judgment. Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E. 648 (1924).

Motion to set aside applicable when motion to dismiss would have been.

- Motion to set aside a default judgment, on account of insufficiency of the petition, operates as a general demurrer (now motion to dismiss) to the petition; and any defect which could have been reached by general demurrer can, after a default judgment, be taken advantage of by a motion to arrest or set aside the judgment. Sheffield v. Causey, 12 Ga. App. 588, 77 S.E. 1077 (1913).

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judgments, § 130 et seq.

C.J.S.

- 49 C.J.S., Judgments, §§ 54, 410.

ALR.

- Failure of decree or order of distribution of decedent's estate to describe specifically the property or property interests involved, or misdescription thereof, 120 A.L.R. 630.

Correction of mistake in judgment entered under warrant of attorney to confess judgment, 144 A.L.R. 830.

Power of court to award alimony or property settlement in divorce suit as affected by failure of pleading or notice to make a claim therefor, 152 A.L.R. 445.

Necessity of notice of application or intention to correct error in judgment entry, 14 A.L.R.2d 224.

Section not applicable.

- In the absence of evidence that the trial court lacked jurisdiction over the subject matter or the parties, the Georgia judgment was not void, rather it was merely voidable and O.C.G.A. § 9-12-16, did not apply. Williams v. Willis, 340 Ga. App. 740, 798 S.E.2d 323 (2017).

Principles of former Code 1933, § 110-709 (see now O.C.G.A. § 9-12-16) applied to Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60(e)). Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).

Section as remedy under O.C.G.A.

§ 9-11-60(e). - Former Code 1933, § 110-709 (see now O.C.G.A. § 9-12-16) gave a remedy under subsection (e) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60) to third parties who attack a judgment as void for any cause. Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978); Bonneau v. Ohme, 244 Ga. 184, 259 S.E.2d 631 (1979).

"Void judgment" defined.

- Void judgment is no judgment. By it no rights are divested; from it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. Stewart v. Golden, 98 Ga. 479, 25 S.E. 528 (1896); Shotkin v. State, 73 Ga. App. 136, 35 S.E.2d 556 (1945), cert. denied, 329 U.S. 740, 67 S. Ct. 56, 91 L. Ed. 638 (1946); Zachos v. Rowland, 80 Ga. App. 31, 55 S.E.2d 166 (1949); Adams v. Payne, 219 Ga. 638, 135 S.E.2d 423 (1964); Troup County Bd. of Comm'rs v. Public Fin. Corp., 109 Ga. App. 547, 136 S.E.2d 509 (1964).

Effect on person against whom void judgment is rendered.

- As to the person against whom a void judgment professes to be rendered, it binds the person in no degree whatever, it has no effect as a lien upon the person's property, it does not raise an estoppel against the person. As to the person in whose favor it professes to be, it places the person in no better position than the person occupied before; it gives the person no new right, but an attempt to enforce it will place the person in peril. As to third persons, it can neither be a source of title nor an impediment in the way of enforcing their claims. Shotkin v. State, 73 Ga. App. 136, 35 S.E.2d 556 (1945), cert. denied, 329 U.S. 740, 67 S. Ct. 56, 91 L. Ed. 638 (1946); Zachos v. Rowland, 80 Ga. App. 31, 55 S.E.2d 166 (1949).

Effect of subsequent actions on void judgment.

- Judgment really void cannot be vitalized by any subsequent action of the parties. Troup County Bd. of Comm'rs v. Public Fin. Corp., 109 Ga. App. 547, 136 S.E.2d 509 (1964).

Test to determine validity of judgment.

- One of the tests which can be applied to determine whether a judgment is void is whether the judgment can be set aside by motion in arrest of judgment. If the judgment can be arrested by motion, the judgment is always void. Chapman v. Taliaferro, 1 Ga. App. 235, 58 S.E. 128 (1907).

Test for collateral attack on judgment.

- One of the tests in determining whether a judgment is absolutely void and subject to collateral attack is whether the party attacking the judgment had been a party thereto. Then a motion in arrest of judgment could have been sustained for defects appearing in the face of the pleadings, which could not have been aided by amendment or cured by the verdict. Deck v. Shields, 195 Ga. 697, 25 S.E.2d 514 (1943).

Statute of limitations.

- This statute excepts an attack on a void judgment from the bar of the statute of limitation. Watson v. Watson, 235 Ga. 136, 218 S.E.2d 863 (1975).

Statutes of limitation have no application to this class of judgments, and there can be no bar, estoppel, or limitation as to the time when a void judgment may be attacked. Wasden v. Rusco Indus., Inc., 233 Ga. 439, 211 S.E.2d 733 (1975), overruled on other grounds, Murphy v. Murphy, 263 Ga. 280, 430 S.E.2d 749 (1993).

Section refers to judgments void on their face.

- It is the accepted rule that a domestic judgment cannot be called into question in a collateral proceeding, except for defects apparent on the face of the record such as would render the proceedings void. Owenby v. Stancil, 190 Ga. 50, 8 S.E.2d 7 (1940).

Judgment taken against the state without the state's consent is a nullity since the state as sovereign cannot be sued without the state's consent. Thompson v. Continental Gin Co., 73 Ga. App. 694, 37 S.E.2d 819 (1946).

Judicial review of General Assembly's internal procedures.

- If in the exercise of its power to enact laws, the General Assembly fails to observe certain rules of internal procedure, the judiciary would not be authorized to review such action, and the same would be true as to any action of the officers of that body within the sphere of their jurisdiction. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947).

Void judgment may be attacked at any time.

- If the judgment or record showed that the court rendering the judgment did not have jurisdiction of the subject matter, any person whose rights would be affected could, at any time, make the objection. Hackenhull v. Westbrook, 53 Ga. 285 (1874); Jones v. Jones, 181 Ga. 747, 184 S.E. 271 (1936); Drake v. Drake, 187 Ga. 423, 1 S.E.2d 573 (1939); Morrison v. Morrison, 212 Ga. 48, 90 S.E.2d 402 (1955).

Void judgment may be attacked at any time and anywhere because the judgment is absolutely void. Even when the issue is not raised by counsel in the trial court and is raised for the first time in the petition for certiorari to the superior court, if the judgment shows on the judgment's face that the judgment is void, the judgment may be attacked. Parker v. Bond, 47 Ga. App. 318, 170 S.E. 331 (1933).

It is not necessary to take any steps to have a void judgment reversed, vacated, or set aside. But whenever it is brought up against the party, that party may assail its pretensions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral. Shotkin v. State, 73 Ga. App. 136, 35 S.E.2d 556 (1945), cert. denied, 329 U.S. 740, 67 S. Ct. 56, 91 L. Ed. 638 (1946).

Failure to traverse the entry of service or to plead to the jurisdiction will not preclude the defendant from seeking, in an equitable action, to have the judgment set aside when the record shows on the record's face that the court was without jurisdiction of the person of the defendant. Ivey v. State Mut. Ins. Co., 200 Ga. 835, 38 S.E.2d 601 (1946).

Void judgments may be disregarded. Blood v. Earnest, 217 Ga. 642, 123 S.E.2d 913 (1962).

Motion to set aside judgment not necessary prerequisite.

- It is not necessary that heirs at law who were not bound by the judgment of probate in solemn form first move to set aside the judgment in the court of ordinary (probate court) before resorting to equity to cancel a judgment alleged to be void. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951).

Affidavit of illegality.

- Unless a judgment is void, an affidavit of illegality is never the proper method to attack the judgment. Ayers v. Baker, 216 Ga. 132, 114 S.E.2d 847 (1960).

Pleading meritorious defenses.

- In equitable proceedings to set aside a judgment rendered in a court of law on account of accident, mistake, or fraud, the plaintiff is required to set out a meritorious defense to the action in which the plaintiff seeks to set aside the judgment. This does not mean that, in a direct equitable proceeding to set aside a judgment of a court of ordinary (now probate court) or a court of law on the ground that such court or courts had no jurisdiction of the subject-matter or of the person, and that the judgment is void, it is necessary to plead a meritorious defense. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951).

Reversal on reviewing court's own motion.

- When the Court of Appeals discovers from the record that a judgment brought for review is void for any reason, it will of its own motion reverse it. Troup County Bd. of Comm'rs v. Public Fin. Corp., 109 Ga. App. 547, 136 S.E.2d 509 (1964).

Proper judgment not subject to attack.

- While the judgment of a court having no jurisdiction of the person against whom the judgment is rendered may be void, when the court has jurisdiction of the subject matter and the defendant has been served, the defendant cannot attack the judgment by affidavit of illegality. Hamilton v. Chitwood, 37 Ga. App. 393, 140 S.E. 518 (1927).

When the court has jurisdiction of the subject-matter and the defendant has been served, the defendant cannot attack the judgment by affidavit of illegality. Mason v. Stevens Whse. Co., 43 Ga. App. 375, 158 S.E. 631 (1931).

Contemner may not collaterally attack the judgment of a court in the main case in connection with which the contemner is cited for contempt, when the court has jurisdiction of the person and the subject matter of the main case. But this rule does not apply if the record in the main case shows on the record's face that the court does not have jurisdiction. Bradley v. Simpson, 59 Ga. App. 844, 2 S.E.2d 238, rev'd on other grounds, Simpson v. Bradley, 189 Ga. 316, 5 S.E.2d 893 (1939), cert. denied, 310 U.S. 643, 60 S. Ct. 1105, 84 L. Ed. 1410 (1940).

Trial court properly dismissed a business' contribution action, filed pursuant to O.C.G.A. § 51-12-32, on subject matter jurisdiction grounds as: (1) the court's finding that the business was the sole tortfeasor barred the action; (2) that finding was not void; (3) no appeal was taken from that finding; and (4) the suit amounted to an improper collateral attack on the default judgment entered against the business. State Auto Mut. Ins. Co. v. Relocation & Corporate Hous. Servs., 287 Ga. App. 575, 651 S.E.2d 829 (2007), cert. denied, 2008 Ga. LEXIS 163 (Ga. 2008).

Void judgment not basis for res judicata or estoppel.

- Judgment void for want of jurisdiction does not afford any ground for applying res judicata or estoppel. Wilbanks v. Bowman, 212 Ga. 809, 96 S.E.2d 255 (1957).

When claimant waited unreasonable time to contest.

- Contention that a judgment was erroneous because the claimant waited an unreasonable length of time to contest the judgment's validity does not constitute an attack upon the jurisdiction of the superior court either as to the person or the subject matter, and accordingly the judgment of the superior court is a valid and binding judgment, never having been set aside or reversed. Bentley v. Buice, 102 Ga. App. 101, 115 S.E.2d 706 (1960).

Want of service.

- Any judgment of any sort by counsel or by the court may be attacked if the judgment is void for want of service and of jurisdiction, which depends on service, as to the person. McBride v. Bryan, 67 Ga. 584 (1881); Wade v. Watson, 133 Ga. 608, 66 S.E. 922 (1909); Strickland v. Willingham, 49 Ga. App. 355, 175 S.E. 605 (1934); Winn v. Armour & Co., 184 Ga. 769, 193 S.E. 447 (1937); Cherry v. McCutchen, 68 Ga. App. 682, 23 S.E.2d 587 (1942); Abner v. Weeks, 91 Ga. App. 682, 86 S.E.2d 727 (1955); Dunn v. Dunn, 221 Ga. 368, 144 S.E.2d 758 (1965); Holloway v. Frey, 130 Ga. App. 224, 202 S.E.2d 845 (1973); Henry v. Hiwassee Land Co., 246 Ga. 87, 269 S.E.2d 2 (1980).

When there is no valid service or any waiver of such service, the trial court has no jurisdiction over a person, and the court's judgment is a nullity. Gaddis v. Dyer Lumber Co., 168 Ga. App. 334, 308 S.E.2d 852 (1983).

Judgment binding until set aside.

- When the record shows an entry of service by the sheriff, the judgment is binding until such entry is traversed and set aside. Winn v. Armour & Co., 184 Ga. 769, 193 S.E. 447 (1937).

Judgment of a court having jurisdiction of both the parties and the subject matter, however irregular or erroneous, is binding until set aside. Bentley v. Buice, 102 Ga. App. 101, 115 S.E.2d 706 (1960).

Invalidity establishable by showing deficiency in service of process.

- Once it becomes established that service is in fact deficient because the copy of process left with the defendant in a civil action is not dated or signed by the officer serving the process, the judgment is void, but, until such facts have been established, the judgment is not void in the sense and under the definition of void judgments contained in subsection (a) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60). Jennings v. Davis, 92 Ga. App. 265, 88 S.E.2d 544 (1955).

Suspending or vacating judgment merely to let in defense.

- When a party has been afforded an opportunity to be heard, the court cannot suspend or vacate the court's judgment merely to let in a defense which should have been offered before the judgment was entered. Buchanan v. Treadwell, 213 Ga. 154, 97 S.E.2d 705 (1957).

Judgment obtained by fraud void.

- Since a judgment obtained by fraud is void, such a judgment will be open to attack, whenever and wherever the judgment may come in conflict with the rights or interests of third persons who are not subject to estoppel. Crawford v. Williams, 149 Ga. 126, 99 S.E. 378 (1919).

Superior court may set aside as void the judgment of a court of ordinary (now probate court) when an allegation of fact in a petition to the court, which was necessary to give the court jurisdiction, was known by the petitioner to be false, and therefore was a fraud upon the court. Henderson v. Hale, 209 Ga. 307, 71 S.E.2d 622 (1952).

Cited in Jowers & Son v. Kirkpatrick Hdwe. Co., 21 Ga. App. 751, 94 S.E. 1044 (1918); Wadley S. Ry. v. Wright, 31 Ga. App. 289, 120 S.E. 551 (1923); Walker v. Hall, 176 Ga. 12, 166 S.E. 757 (1932); Gray v. Riley, 47 Ga. App. 348, 170 S.E. 537 (1933); Shiflett v. Dobson, 180 Ga. 23, 177 S.E. 681 (1934); Nixon v. L.A. Russell Piano Co., 51 Ga. App. 399, 180 S.E. 743 (1935); Walker v. Walker, 53 Ga. App. 769, 187 S.E. 164 (1936); Kerr v. McAnally, 183 Ga. 365, 188 S.E. 687 (1936); Hunter v. Associated Mtg. Cos., 183 Ga. 506, 188 S.E. 700 (1936); Gullatt v. Slaton, 189 Ga. 758, 8 S.E.2d 47 (1940); Durden v. Durden, 191 Ga. 404, 12 S.E.2d 305 (1940); Langston v. Nash, 192 Ga. 427, 15 S.E.2d 481 (1941); Head v. Waldrup, 193 Ga. 165, 17 S.E.2d 585 (1941); Harrison v. Tonge, 67 Ga. App. 54, 19 S.E.2d 535 (1942); Hardison v. Gledhill, 72 Ga. App. 432, 33 S.E.2d 921 (1945); Hall v. Hall, 203 Ga. 656, 47 S.E.2d 806 (1948); Gaither v. Gaither, 205 Ga. 572, 54 S.E.2d 600 (1949); Chambers v. Chambers, 206 Ga. 796, 58 S.E.2d 814 (1950); Powell v. Powell, 207 Ga. 1, 59 S.E.2d 718 (1950); Lott v. Lott, 207 Ga. 34, 59 S.E.2d 912 (1950); Jue v. Joe, 207 Ga. 119, 60 S.E.2d 442 (1950); Ivy v. Ferguson, 82 Ga. App. 600, 62 S.E.2d 191 (1950); Georgia R.R. & Banking v. Redwine, 208 Ga. 261, 66 S.E.2d 234 (1951); Porter v. Employers Liab. Ins. Co., 85 Ga. App. 497, 69 S.E.2d 384 (1952); Lockhart v. Lockhart, 211 Ga. 482, 86 S.E.2d 297 (1955); Cocke v. Truslow, 91 Ga. App. 645, 86 S.E.2d 686 (1955); Trowbridge v. Dominy, 92 Ga. App. 177, 88 S.E.2d 161 (1955); Eagan v. First Nat'l Bank, 212 Ga. 212, 91 S.E.2d 499 (1956); Buchanan v. Treadwell, 213 Ga. 154, 97 S.E.2d 705 (1957); Farmer v. Whitehead, 95 Ga. App. 520, 98 S.E.2d 145 (1957); Musgrove v. Musgrove, 213 Ga. 610, 100 S.E.2d 577 (1957); Thompson v. Central of Ga. Ry., 98 Ga. App. 228, 105 S.E.2d 508 (1958); Dupree v. Turner, 99 Ga. App. 332, 108 S.E.2d 171 (1959); Curtis v. Curtis, 215 Ga. 367, 110 S.E.2d 668 (1959); New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677, 112 S.E.2d 273 (1959); Nuckolls v. Merritt, 216 Ga. 35, 114 S.E.2d 427 (1960); Brewton v. McLeod, 216 Ga. 686, 119 S.E.2d 105 (1961); Waldor v. Waldor, 217 Ga. 496, 123 S.E.2d 660 (1962); Allen v. Allen, 218 Ga. 364, 127 S.E.2d 902 (1962); Saborit v. Welch, 108 Ga. App. 611, 133 S.E.2d 921 (1963); Trammell v. Trammell, 220 Ga. 293, 138 S.E.2d 562 (1964); U.S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965); Edwards v. Lampkin, 112 Ga. App. 128, 144 S.E.2d 119 (1965); Ferguson v. Hunt, 221 Ga. 728, 146 S.E.2d 756 (1966); Armstrong Cork Co. v. Joiner, 221 Ga. 789, 147 S.E.2d 317 (1966); Frady v. Frady, 222 Ga. 184, 149 S.E.2d 324 (1966); Byrd v. Byrd, 223 Ga. 24, 153 S.E.2d 422 (1967); International Ladies Garment Workers Union v. Smith, 223 Ga. 459, 156 S.E.2d 71 (1967); Corder v. Fulton Nat'l Bank, 223 Ga. 524, 156 S.E.2d 452 (1967); Byrd v. Moore Ford Co., 116 Ga. App. 292, 157 S.E.2d 41 (1967); Funderburg v. Wold, 117 Ga. App. 638, 161 S.E.2d 376 (1968); Burson v. Bishop, 117 Ga. App. 602, 161 S.E.2d 518 (1968); Orange County Trust Co. v. Takowsky, 119 Ga. App. 366, 166 S.E.2d 913 (1969); Kazakos v. Soteres, 120 Ga. App. 258, 170 S.E.2d 50 (1969); Sutton v. Hutchinson, 226 Ga. 99, 172 S.E.2d 663 (1970); Berry v. Consumer Credit, 124 Ga. App. 586, 184 S.E.2d 694 (1971); Lowndes County v. Dasher, 229 Ga. 289, 191 S.E.2d 82 (1972); Aiken v. Bynum, 128 Ga. App. 212, 196 S.E.2d 180 (1973); First Fid. Ins. Corp. v. Busbia, 128 Ga. App. 485, 197 S.E.2d 396 (1973); Trapnell v. Smith, 131 Ga. App. 254, 205 S.E.2d 875 (1974); Adams Drive, Ltd. v. All-Rite Trades, Inc., 136 Ga. App. 703, 222 S.E.2d 174 (1975); Dennis v. McCrary, 237 Ga. 605, 229 S.E.2d 367 (1976); Thoni Oil Co. v. Tinsley, 140 Ga. App. 887, 232 S.E.2d 162 (1977); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280, 233 S.E.2d 256 (1977); Unigard Ins. Co. v. Kemp, 141 Ga. App. 698, 234 S.E.2d 539 (1977); Wilson v. Passmore, 240 Ga. 716, 242 S.E.2d 124 (1978); Webb v. National Disct. Co., 148 Ga. App. 313, 251 S.E.2d 163 (1978); Safe-Lite Mfg., Inc. v. C.E. Morgan Bldg. Prods., Inc., 150 Ga. App. 172, 257 S.E.2d 19 (1979); O'Neill v. Western Mtg. Corp., 153 Ga. App. 151, 264 S.E.2d 691 (1980); Lovell v. Service Concept, Inc., 154 Ga. App. 760, 269 S.E.2d 894 (1980); Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981); Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981); Brant v. Bazemore, 159 Ga. App. 659, 284 S.E.2d 674 (1981); Anderson v. King, 160 Ga. App. 802, 288 S.E.2d 231 (1982); McDonnell v. Episcopal Diocese, 191 Ga. App. 174, 381 S.E.2d 126 (1989); King Cotton, Ltd. v. Powers, 200 Ga. App. 549, 409 S.E.2d 67 (1991); Lewis v. Jarvis, 207 Ga. App. 246, 427 S.E.2d 596 (1993); Georgia Ports Auth. v. Hutchinson, 209 Ga. App. 726, 434 S.E.2d 791 (1993); Anderson Anesthesia, Inc. v. Anderson, 333 Ga. App. 437, 776 S.E.2d 647 (2015); Brock v. RES-GA SCL, LLC, 340 Ga. App. 194, 796 S.E.2d 914 (2017).

Lack of jurisdiction always avoids judgment.

- Lack of jurisdiction or power in a court entering a judgment always avoids the judgment, especially as the judgment relates to and affects the rights of other parties; such action is a usurpation of power by the court and may be declared void collaterally without any direct proceedings to revise the judgment. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383, 73 S.E.2d 205 (1952); Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).

Effect of proceedings when court without jurisdiction.

- When judge's order shows on the order's face a total lack of jurisdiction, the judgment is wholly void and may be attacked collaterally. Rogers v. Toccoa Power Co., 161 Ga. 524, 131 S.E. 517, 44 A.L.R. 534 (1926).

Proceedings in court when the court has no jurisdiction of the subject matter are nullities; and a judgment, after the case has been dismissed upon demurrer for lack of jurisdiction of the subject matter, awarding compensation to receivers and their attorneys, is null and void. Deans v. Deans, 164 Ga. 162, 137 S.E. 829 (1927).

Judgment of a court without jurisdiction of the parties is void and may be attacked at any time and in any court where such judgment is attempted to be enforced. Jones v. Jones, 181 Ga. 747, 184 S.E. 271 (1936); Hagan v. Hagan, 209 Ga. 313, 72 S.E.2d 295 (1952).

Judgment of a court without jurisdiction of the subject matter or of the parties, or which is otherwise beyond the power and authority of the court to render in the particular case, is void. Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642 (1939); Williams v. Fuller, 244 Ga. 846, 262 S.E.2d 135 (1979).

When the court rendering judgment had no jurisdiction or power to give it any retroactive effect, its action in attempting to do so was a nullity; and such action, being therefore void, is subject to collateral attack by any one whose rights are affected thereby, whenever and wherever asserted. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383, 73 S.E.2d 205 (1952).

When allegations show that the judgment under attack is void, it is "sufficient cause" for relief in a court of equity. Nuckolls v. Merritt, 216 Ga. 35, 114 S.E.2d 427 (1960).

Judgment founded upon a suit in a court which had no jurisdiction of the person of the defendant is void, unless the defendant waived jurisdiction or appeared and pled to the merits. Roland v. Shelton, 106 Ga. App. 581, 127 S.E.2d 497 (1962).

Judgments and decrees void for want of the court's jurisdiction to render them may be set aside at any time after rendition thereof. Baker v. Baker, 221 Ga. 332, 144 S.E.2d 529 (1965).

Judgment in personam rendered without notice.

- Judgment in personam, rendered against a defendant without notice to the defendant or an appearance by the defendant, is without jurisdiction and is entirely void. Weaver v. Webb, Galt & Kellogg, 3 Ga. App. 726, 60 S.E. 367 (1980); Strickland v. Willingham, 49 Ga. App. 355, 175 S.E. 605 (1934).

Court's duty to ascertain jurisdiction.

- It is the duty of any judicial tribunal to first ascertain whether or not the tribunal has jurisdiction of the parties and subject matter involved in the controversy, and a court which has general jurisdiction over the subject matter involved will be presumed, when the judgment is regular on the judgment's face, not to have exceeded the judgment's jurisdiction. Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 80 S.E.2d 212 (1954).

It is the duty of the court, when apprised that the court has no jurisdiction, to dismiss the case at any stage of the proceeding, with or without motion therefor. Griffis v. Griffis, 229 Ga. 587, 193 S.E.2d 620 (1972).

It is the duty of a court to inquire into the court's jurisdiction, upon the court's own motion when there is doubt. Culwell v. Lomas & Nettleton Co., 145 Ga. App. 519, 244 S.E.2d 61, rev'd on other grounds, 242 Ga. 242, 248 S.E.2d 641 (1978).

Presumption as to finding of jurisdiction.

- When the question as to the jurisdiction of the court depends upon the existence or nonexistence of a fact, and the judgment is otherwise regular, and the court otherwise a court of competent jurisdiction, it is to be presumed that the court found facts to exist such as warranted the court assuming jurisdiction, and such finding of fact cannot be collaterally attacked. Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 80 S.E.2d 212 (1954).

Res judicata.

- Trial court erred in granting a limited liability company summary judgment in the company's ejectment action against a property owner on the ground of res judicata under O.C.G.A. § 9-12-40 because there remained a question of fact regarding whether the owner was a party to the prior action; the owner asserted and presented affidavit evidence supporting the claim that the trial court in the quiet title action lacked personal jurisdiction over the owner, thus creating a genuine issue of material fact regarding whether the owner was a party to the earlier litigation. James v. Intown Ventures, LLC, 290 Ga. 813, 725 S.E.2d 213 (2012).

In personam jurisdiction not present after service by publication.

- There is no provision whereby courts may acquire jurisdiction over a defendant through service by publication and then render an in personam judgment against the defendant. Tapley v. Proctor, 150 Ga. App. 337, 258 S.E.2d 25 (1979).

In order for the court to bind nonresidents by the court's judgments in personam there must be personal service or waiver of personal service upon such nonresidents. This requirement has not been changed by the enactment of Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4). Tapley v. Proctor, 150 Ga. App. 337, 258 S.E.2d 25 (1979).

Effect of jurisdiction appearing on face of proceedings.

- Whenever jurisdiction appears on the face of the proceedings upon which the judgment is rendered, everything will be intended in favor of the judgment; but when nothing appears on the face of the proceedings to give the court jurisdiction, as required by law, either of the subject-matter or the parties thereto, the whole proceeding is void. Gray v. McNeal, 12 Ga. 424 (1853).

Effect of irregularities after jurisdiction has attached.

- When judgments may have been erroneous, but were not void and no exception to the judgements were taken, the judgments are binding on the parties. Girardey v. Bessman, 77 Ga. 483 (1886).

An irregular judgment is one that is entered contrary to the manner of practice and procedure allowed by law in some material respect; when jurisdiction is once attached, errors or irregularities in the proceedings, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void. Rowell v. Rowell, 214 Ga. 377, 105 S.E.2d 19 (1958).

When court judgment appointing an administrator for an incompetent's estate was not alleged to be void, the judgment could not be collaterally attacked by a motion to dismiss the writ of error pertaining to a denial of the motion for judgment notwithstanding verdict in a suit by a former ward challenging the disbursements of former guardian. Weekes v. Fuller, 218 Ga. 515, 128 S.E.2d 715 (1962).

Direct proceeding to set aside probate in solemn form.

- Court of equity may entertain a direct proceeding to set aside a probate in solemn form when it is alleged that certain heirs at law of the testatrix, residents of the state wherein the will was probated, were not served with personal notice of the probate proceedings, did not waive service, and had no knowledge of such proceedings, and it is alleged that the judgment probating the will in solemn form is, as to them, a nullity. Foster v. Foster, 207 Ga. 519, 63 S.E.2d 318 (1951).

Service upon a minority of a church membership is not such service as will bind church property under a judgment against certain individuals who are members of the church. Walker v. Ful-Kalb, Inc., 181 Ga. 563, 183 S.E. 776 (1935).

Service attempted in county other than county of origin.

- Judgment is absolutely void when it appears from the face of the record that suit was instituted in the county of the residence of the endorser of a promissory note, and service upon the maker of the note was attempted by service of a second original in another county. Ivey v. State Mut. Ins. Co., 200 Ga. 835, 38 S.E.2d 601 (1946).

Judgment of another state without jurisdiction may be collaterally attacked. Morrison v. Morrison, 212 Ga. 48, 90 S.E.2d 402 (1955).

Judgment against foreign citizen.

- Courts of this state have no jurisdiction to render a valid judgment against a citizen of another state in a common law action, unless the citizen has been within the limits of this state, and has been served with process while in this state. Howell v. Gordon, 40 Ga. 302 (1869).

Judgment against a lunatic is not void, but voidable. John Doe v. Roe, 23 Ga. 168 (1857).

Judgment upon sane person later declared insane. After the defendant was duly served in person with a copy of the petition and process at a time when the defendant was sane, a default judgment thereafter rendered against the defendant was not void because in the meantime the defendant was adjudged to be a lunatic and committed, and was not represented in such suit by a guardian or guardian ad litem. Burkhalter v. Virginia-Carolina Chem. Co., 42 Ga. App. 312, 156 S.E. 272 (1930).

Persons non compos mentis.

- When a non compos mentis person was sued upon what purported to be a contractual obligation entered into by that person, and was served only by the leaving of a copy of the petition and process at the person's residence, and was not represented in the suit by any guardian or other person appointed to look after the person's interests, a judgment rendered against the person in the suit was capable in a proper proceeding brought in the person's behalf of being set aside as invalid. Perry v. Fletcher, 46 Ga. App. 450, 167 S.E. 796 (1933).

An insane person may, after time for excepting to the judgment has expired, institute, by next friend, in the court in which the judgment was rendered, proceedings in the nature of a motion to set aside the judgment as being void. Perry v. Fletcher, 46 Ga. App. 450, 167 S.E. 796 (1933).

When no notice was given to the plaintiff in the lunacy proceeding and the court of ordinary (now probate court) did not have personal jurisdiction of the plaintiff, the appointment of a guardian is subject to attack by the plaintiff that the appointment was a nullity and void. Tucker v. Tucker, 221 Ga. 128, 143 S.E.2d 639 (1965).

When invalidity not shown on face of record.

- Invalidity of a judgment which is invalid because of irregularities in the copy of process served on the defendant not appearing on the face of the record when a proper entry of service, complete and regular on its face, is made on the original process filed in the office of the clerk, then establishment of its invalidity becomes a question of fact which can be raised only by a traverse to the return of the officer, and until this is done, such a judgment is not void under the definition of void judgments. Jennings v. Davis, 92 Ga. App. 265, 88 S.E.2d 544 (1955).

When judge exceeds jurisdiction.

- Judgment of a judge who exceeds the judge's jurisdiction as a whole will be void and a mere nullity. Cornett v. Ault, 124 Ga. 944, 53 S.E. 460 (1906).

Trial court's order denying the defendant's extraordinary motion for new trial/habeas petition was a nullity and void under O.C.G.A. § 9-12-16, and the appellate court could not transfer the defendant's case to the Georgia Supreme Court to consider the grant of a certificate of probable cause under O.C.G.A. § 9-14-52(b), even though the Georgia Supreme Court had exclusive jurisdiction over habeas cases, as the trial court was without subject matter jurisdiction to entertain the defendant's habeas claim upon a transfer from a habeas court with instructions to determine whether trial counsel was ineffective; however, as defendant's habeas claims had not been addressed by a court of competent jurisdiction, the appellate court remanded the matter to the habeas court for resolution of the defendant's habeas claims of ineffective assistance of counsel, with the final order subject to the appellate procedures outlined in § 9-14-52. Herrington v. State, 265 Ga. App. 454, 594 S.E.2d 682 (2004).

Justice of the peace cannot set aside own judgment.

- Justice of the peace has no authority to set aside a judgment rendered by the justice of the peace. The subsequent entering of a second judgment purporting to set aside the first mentioned judgment is itself void and should be treated as a nullity. Edwards & Daniel v. Edwards, 163 Ga. 825, 137 S.E. 244 (1927).

Attacking judgment as void in attachment case.

- It is claimant's right to attack as void a judgment rendered in an attachment case by showing that there has never been a legal levy of the attachment itself. New England Mtg. Sec. Co. v. Watson, 99 Ga. 733, 27 S.E. 160 (1896).

Garnishment affidavit not reciting jurisdictional fact renders judgment void. National Lumber Co. v. Turner, 2 Ga. App. 750, 59 S.E. 15 (1907).

Homestead granted without notice to creditor.

- In the court of ordinary (now probate court), a homestead granted without notice to a certain creditor, is a nullity as to that creditor. Weekes & Son v. Edwards, 101 Ga. 314, 28 S.E. 853 (1897).

Fact that an execution was issued on a void judgment and levied does not give vitality to the judgment. Jowers & Son v. Kirkpatrick Hdwe. Co., 21 Ga. App. 751, 94 S.E. 1044 (1918).

Void reinstatement of case.

- Consent of counsel in vacation to reinstatement of a cause which has been dismissed in term time will not serve to confer jurisdiction upon the court, nor vitalize a judgment rendered after such void reinstatement, and which for that very reason is void. Owens v. Cocroft, 14 Ga. App. 322, 80 S.E. 906 (1914).

Judgment and appointment of a guardian was a nullity when the record shows the applicants in a proceeding involving the validity of a will attempted to waive the ten day notice and the court proceeded to declare the testatrix incompetent and appointed a guardian for the testatrix in two days without complying with the law. English v. Shivers, 220 Ga. 737, 141 S.E.2d 443 (1965).

Discharge obtained by an executor by means of fraud practiced upon the legatees or the ordinary (now probate judge) is void. Pass v. Pass, 98 Ga. 791, 25 S.E. 752 (1896).

Grant of letters of administration is not void when there is a will on file at the time of the grant in the office of the ordinary (now probate judge) which is subsequently admitted to probate. Smith v. Scarborough, 182 Ga. 157, 185 S.E. 105 (1936).

Judgment appointing a person administrator de bonis non.

- When citation has not issued and been advertised, the judgment appointing a person administrator de bonis non is a nullity, and can be collaterally attacked in any proceeding in which the judgment or letters of administration issued thereon are relied upon as establishing the legal appointment of an administrator, when this affirmatively appears from the record introduced to establish the appointment. Davis v. Melton, 51 Ga. App. 685, 181 S.E. 300 (1935).

Jurisdiction for challenge to municipal charter law.

- Municipal courts have no jurisdiction of prosecution for violation of state statute setting forth charter of municipality. Sentence imposed by a municipal court for violation of such statute is void and subject to collateral attack. Rose v. Mayor of Thunderbolt, 89 Ga. App. 599, 80 S.E.2d 725 (1954).

County board of commissioner's order void.

- Settlement agreement entered into by a county and the county's board of commissioners was void as an ultra vires act because the agreement purported to forever bind the hands of future boards of commissioners regarding land use and zoning decisions for certain property in violation of O.C.G.A. § 36-30-3(a) and a trial court therefore had jurisdiction to nullify the agreement at any time. Buckhorn Ventures, LLC v. Forsyth County, 262 Ga. App. 299, 585 S.E.2d 229 (2003).

Effect of invoking arbitration.

- Fact that a taxpayer who objected to an assessment invoked arbitration would not estop the taxpayer from attacking an award in equity as void. Montgomery v. Suttles, 191 Ga. 781, 13 S.E.2d 781 (1941).

Party absent due to illness but represented by counsel.

- When a party receives notice of a trial or hearing, and an attorney appears for the party and participates therein, and a judgment is rendered against the party, the fact that the court or forum had notice of the party's sickness will not render the judgment void, and as such subject to attack under this section; it is the duty of such party to "follow up" on the party's case and by proper procedure to attack the judgment upon some meritorious showing that, although represented by the attorney, the party's absence prejudiced some substantial right or prevented the party from testifying upon some matter vital to the party's right of recovery or defense, or in any event, not to ignore the adverse judgment by failing to appeal or take a writ of error to the proper court. Thomas v. Travelers Ins. Co., 53 Ga. App. 404, 185 S.E. 922 (1936).

Foreclosure judgment as to car.

- Failure to provide a corporation that was the original owner of a car with notice of a foreclosure proceeding involving the car was a due process violation that was tantamount to a lack of personal jurisdiction; thus, the foreclosure judgment was void under O.C.G.A. § 9-12-16. Mitsubishi Motors Credit of Am., Inc. v. Sheridan, 286 Ga. App. 791, 650 S.E.2d 357 (2007), cert. denied, No. S07C1842, 2007 Ga. LEXIS 751 (Ga. 2007).

Judgment of judge appointed to fill vacancy not void.

- Judgment entered by a judge, who was appointed by the chief county magistrate judge upon a request for "assistance" made by the superior court chief judge pursuant to O.C.G.A. § 15-1-9.1, was not void, even though the judge was appointed to fill a vacancy created by the resignation of a superior court judge, which vacancy should have been filled by the governor. Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664, 399 S.E.2d 269 (1990).

Section inapplicable when judgment at issue was not a void judgment.

- Trial court properly denied a motion to correct a judgment entered against two debtors and their guarantors, five years and eight months after the expiration of the term of court in which the judgment was entered, as they failed to show any entitlement to relief or exception as to why they could not have timely sought the relief requested, and O.C.G.A. § 9-12-16 did not apply because there was no issue regarding the trial court's original jurisdiction and because the judgment at issue was not a void judgment. De La Reza v. Osprey Capital, LLC, 287 Ga. App. 196, 651 S.E.2d 97 (2007), cert. denied, No. S07C1928, 2007 Ga. LEXIS 819 (Ga. 2007).

Trial court erred in setting aside consent decree.

- Trial court erred in finding that a consent judgment was void due to impossibility of performance or lack of mutuality and in denying the sellers' motion for judgment instanter on the consent judgment because the purchasers accepted the risk that the purchasers would be unable to complete the road on time per the agreement and set up an alternative method of compliance, namely, the payment of money to the sellers. Kothari v. Tessfaye, 318 Ga. App. 289, 733 S.E.2d 815 (2012).

Void judgment no defense to enforcement of valid judgment of alimony.

- Judgment which purported to modify permanent alimony judgment but which was void for want of power or jurisdiction in the court to grant the judgment, constituted no defense to the plaintiff's action to collect the amount awarded for the support of the child in the original proceeding, payment of which had not been made and was in arrears at the time the suit was filed. Buxton v. Hooker, 214 Ga. 271, 104 S.E.2d 437 (1958).

Want of jurisdiction of party in divorce case.

- Judgment granting to the wife a divorce and permanent alimony was not void either because she resumed cohabitation with her husband after the suit was filed, or because of the fact that pending the action she made an agreement with her husband, which she did not disclose in court, to the effect that she would not claim alimony (which facts, so far as they may have furnished any grounds of defense, should have been urged before judgment, or in a proper proceeding to set it aside) and the court did not err in excluding evidence of such facts in a contempt proceeding brought against the husband for his failure to pay alimony as required by the decree. Rozetta v. Rozetta, 181 Ga. 494, 182 S.E. 847 (1935).

While the power to enforce a decree for alimony by attachment for contempt by judges of the superior courts is still adequate, if in such a proceeding it appears that the judgment awarding alimony is void, for any reason, the husband is privileged to collaterally attack the judgment, and in such case the court has no power to punish him for contempt. Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642 (1939).

In an original suit in equity for a decree declaring void and of no effect verdicts and decree in a divorce suit, on grounds that the court was without jurisdiction of the case, because at the time of filing of the suit for divorce the defendant was a resident of Clayton County, whereas the suit was brought in Fulton County, the alleged want of jurisdiction was a sufficient ground of attack upon the verdicts and decree of divorce. Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834 (1940).

Award of temporary alimony by a court not having jurisdiction of the parties cannot be the basis of a valid proceeding for contempt. Hagan v. Hagan, 209 Ga. 313, 72 S.E.2d 295 (1952).

Since no valid judgment can be rendered in a divorce case if the court is without jurisdiction, it is the duty of the court, when apprised of the fact that the court has no jurisdiction, to dismiss the case at any stage of the proceeding, with or without motion therefor. Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95 (1953).

When it appears upon the face of the record that the court was without jurisdiction of a divorce case the judgment was void ab initio; and being void the defendant would not be guilty of contempt of court for failing to pay alimony awarded by that judgment. Johnson v. Johnson, 222 Ga. 433, 150 S.E.2d 684 (1966).

Consequence of failing to take exception to decree.

- When decree awarding permanent alimony for support of a minor child was based on the verdict which a jury rendered in a divorce and alimony suit and was not excepted to, it therefore became absolute and the court is without power or jurisdiction to modify the decree's terms, even with the consent of the child's parents. Buxton v. Hooker, 214 Ga. 271, 104 S.E.2d 437 (1958).

Notice to minor children in support action.

- To arbitrarily discriminate against the child or children, and set apart for the widow alone the entire net proceeds of an insolvent estate, and give the minor child no notice of such action, is so unreasonable and contrary to law as to void such judgment. De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933).

Failure to comply with interlocutory appeal procedures.

- Trial court's denial of a wife's motion to vacate was affirmed because the husband's filing of a notice of appeal without first complying with the requirements for obtaining interlocutory review had no legal effect and, therefore, did not deprive the trial court of jurisdiction to consider the husband's motion for reconsideration or from entering a modification order. Islamkhan v. Khan, 299 Ga. 548, 787 S.E.2d 731 (2016).

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judgments, §§ 22 et seq., 29.

C.J.S.

- 49 C.J.S., Judgments, § 22 et seq.

ALR.

- Is service of notice or process in proceeding to vacate or modify judgment to be made upon owner of judgment or upon the attorney, 78 A.L.R. 370.

Right to attack consent judgment or decree on ground that it was not within scope of pleadings or was beyond the jurisdiction of the court, 86 A.L.R. 84.

Attack on judgment because of invalidity of contract on which it was rendered, 95 A.L.R. 1267.

Nonparty who acquires interest in property pending action or after judgment as within benefit of statute or rule providing for opening, vacating, or setting aside of judgments, 104 A.L.R. 697.

Mental incompetency at time of rendition of judgment in civil action as ground of attack upon it, 140 A.L.R. 1336.

Lapse of time as bar to action or proceeding for relief in respect of void judgment, 154 A.L.R. 818.

Extraterritorial effect of provision in decree of divorce as to custody of child, 160 A.L.R. 400.

Remedy available against invalid judgment in favor of United States, state, or other governmental unit immune to suit, 163 A.L.R. 244.

Constructive service of process in action against nonresident to set aside judgment, 163 A.L.R. 504.

Foreign divorce decree as subject to attack by spouse in state of which neither spouse is resident, 12 A.L.R.2d 382.

Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179.

Collateral attack on domestic nunc pro tunc judgment, 70 A.L.R.2d 1131.

Appealability of void judgment or of one granting or denying motion for vacation thereof, 81 A.L.R.2d 537.

Who, other than natural or adopting parents, or heirs of latter, may collaterally attack adoption decree, 92 A.L.R.2d 813.

Power of successor judge taking office during term time to vacate, set aside, or annul judgment entered by his or her predecessor, 51 A.L.R.5th 747.

Verdicts covered by section.

- Although the word "verdicts" is not found in this section, it is not thereby to be regarded as excluded by implication; jurisdiction to relieve against verdicts inequitably obtained exists as certainly as it does against awards, judgments, and decrees obtained by imposition. Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934).

Showing required when seeking equitable relief.

- One invoking equitable relief against verdicts, as well as against judgments, should meet the usual requirement as to showing that one's relief at law would be less adequate than one's relief at equity. Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934).

Equity unavailable when remedy at law adequate.

- When a judgment at law is void for reasons appearing on the face of the record, and the remedy at law is adequate, complete, and available, equity will not afford relief. Martocello v. Martocello, 197 Ga. 629, 30 S.E.2d 108 (1944).

Effect on purchaser of knowledge of lien on property.

- Purchaser who takes without notice of the judgment can attach as freely as a creditor. But one who purchases property which one knows to be subject to the lien of a judgment in the hands of one's vendor, acquires the property as a privy in estate with the vendor, and it would be no hardship to hold the purchaser as much bound by the judgment as the purchaser would be were the purchaser a direct party to it. The general rule with reference to bona fide purchasers is that a want of notice is essential to their claim for protection. Prendergast v. Wiseman, 80 Ga. 419, 7 S.E. 228 (1888); Carrollton Bank v. Wager, 169 Ga. 304, 150 S.E. 146 (1929).

Bona fide purchaser attacking writs fieri facias.

- Even if writs of fieri facias were good as between the parties thereto, one claiming to be a purchaser bona fide would not be bound by the judgment, but might attack the judgment under this section. Strickland v. Griffin, 70 Ga. 541 (1883).

Attacking appointment of guardian.

- Invalidity of the appointment of a guardian appearing upon the face of the record, the judgment of appointment may be attacked collaterally. Payne v. Shirley, 25 Ga. App. 644, 104 S.E. 17 (1920).

Collateral attack of unreversed judgment of competent court.

- Unreversed judgment of competent court cannot be collaterally attacked except for causes provided for in this section. Hammock v. McBride, 6 Ga. 178 (1849); McArthur & Griffin v. Matthewson & Butler, 67 Ga. 134 (1881); Smith v. Cuyler, 78 Ga. 654, 3 S.E. 406 (1887); William v. Lancaster, 113 Ga. 1020, 39 S.E. 471 (1901); Brooke v. F & M Bank, 27 Ga. App. 250, 108 S.E. 135 (1921).

When judgment subject to motion in arrest of judgment.

- On a motion in arrest of judgment, a petition, although defective and subject to general demurrer (now motion to dismiss), in that the petition omits to set forth all the necessary ingredients of a cause of action, will not render the judgment based thereon subject to the technical statutory remedy of this section, unless the petition affirmatively shows on its face that a cause of action did not in fact exist, or that the petition is so utterly defective that it could not be amended at all, or that the defect in the petition is of such character as renders unenforceable or meaningless the verdict and judgment based thereon. Mell v. McNulty, 185 Ga. 343, 195 S.E. 181 (1938); Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556, cert. dismissed, 222 Ga. 820, 152 S.E.2d 693 (1966).

Direct attack on judgment restricted to real parties in interest.

- It is the general rule, save for certain exceptions in favor of creditors or bona fide purchasers and others who may be excepted by statute, that none but the parties to a judgment can move directly for the judgment's nullification, that a third person, not a party to the record, cannot go into court and move to set aside a judgment which is not against that third party. The underlying basis of this rule is that to permit third persons to become interested after judgment, and to overturn adjudications to which the original parties made no objection, would encourage litigation, and disturb the repose beneficial to society. Thomas v. Lambert, 187 Ga. 616, 1 S.E.2d 443 (1939), overruled on other grounds, Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32 (1978).

Real parties in interest rule applicable to divorce decrees.

- One who is neither a party to a divorce decree nor is in any relation with either of the parties as to any right of property involved in or affected by the decree is not entitled to make a direct attack on the decree, either in the case itself or by an independent equity suit in the same court, when the decree is not void on the decree's face. Thomas v. Lambert, 187 Ga. 616, 1 S.E.2d 443 (1939), overruled on other grounds, Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32 (1978).

Attack on facially valid judgment by stranger.

- An attack on a judgment regular on the judgment's face must be taken as collateral when the petitioner, as a stranger to the previous record, claims to have become incidentally interested therein after a termination of that case. Martocello v. Martocello, 197 Ga. 629, 30 S.E.2d 108 (1944).

Right of creditor to attack judgment of another creditor.

- Right of a creditor to attack the judgment of another creditor because of an alleged defect appearing on the face of the record or pleadings does not extend to irregularities previous to the judgment; the defects must be such as are not amendable. Mell v. McNulty, 185 Ga. 343, 195 S.E. 181 (1938); Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556, cert. dismissed, 222 Ga. 820, 152 S.E.2d 693 (1966).

Unamendable defect is prerequisite to relief.

- Rule in this section is the same as that which controls on a motion in arrest or to set aside a judgment in that the defect must be one which was not amendable. Mell v. McNulty, 185 Ga. 343, 195 S.E. 181 (1938).

Knowledge by creditor that debtor adjudicated insane.

- When the attorney for the plaintiff-creditor knew that the defendant had been judged insane at the time of obtaining the default judgment, this knowledge did not constitute such fraud or collusion as would open the judgment to collateral attack by another creditor in a proceeding in the nature of a money rule. Burkhalter v. Virginia-Carolina Chem. Co., 42 Ga. App. 312, 156 S.E. 272 (1930).

Attacking foreign judgment as procured by fraud.

- Judgment of a court of a foreign state having jurisdiction of the subject matter and the parties cannot be collaterally attacked in the courts of this state on the ground of fraud. Wood v. Wood, 200 Ga. 796, 38 S.E.2d 545 (1946).

While a judgment procured by fraud may be set aside for the fraud in a direct proceeding, still, if the judgment is rendered by a court of competent jurisdiction, the parties are concluded by the judgment until the judgment is set aside. Wood v. Wood, 200 Ga. 796, 38 S.E.2d 545 (1946).

Cited in Smith v. Gettinger, 3 Ga. 140 (1847); Hammock v. McBride, 6 Ga. 178 (1849); Williams v. Martin, 7 Ga. 377 (1849); Stanford & Golden v. Bradford, 45 Ga. 97 (1872); Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934); Simpson v. Bradley, 189 Ga. 316, 5 S.E.2d 893 (1939); Boland v. Barge, 108 Ga. App. 689, 134 S.E.2d 463 (1963); Wasden v. Rusco Indus., Inc., 233 Ga. 439, 211 S.E.2d 733 (1975); Simonds v. Simonds, 145 Ga. App. 227, 243 S.E.2d 545 (1978); Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981).

Am. Jur. 2d.

- 77 Am. Jur. 2d, Vendor and Purchaser, § 412 et seq.

C.J.S.

- 49 C.J.S., Judgments, § 393 et seq.

ALR.

- Effect of reversal or vacation of judgment on execution sale, 29 A.L.R. 1071.

Mental incompetency at the time of rendition of judgment in civil action as ground of attack upon it, 34 A.L.R. 221; 140 A.L.R. 1336.

Criterion of extrinsic fraud as distinguished from intrinsic fraud, as regards relief from judgment on ground of fraud, 88 A.L.R. 1201.

Power of court to award alimony or property settlement in divorce suit as affected by failure of pleading or notice to make a claim therefor, 152 A.L.R. 445.

Same treatment as for judgments rendered on verdicts.

- This section recognizes that a judgment obtained by confession is to be entered up as in cases of judgments rendered on verdicts. Williams v. Atwood, 52 Ga. 585 (1874).

Judgment must be regularly entered upon a confession of judgment. Whitley v. Southern Whsle. Corp., 45 Ga. App. 445, 164 S.E. 903 (1932).

Entering up judgment.

- In a case in a justice of the peace court, when an appeal will lie, the appeal can be made from a confession of judgment without any formal entering up of judgment by the justice on the confession. Huff v. Whitner, Manry & Co., 8 Ga. App. 25, 68 S.E. 463 (1910).

Meaning of "confession of judgment".

- "Confession of judgment" has reference to the act of the defendant whereby the defendant admits or confesses the right of the plaintiff to take a judgment against the defendant, and not to the entering up, or rendition of, the judgment itself which is rendered upon the defendant's confession of judgment. Thomas v. Bloodworth, 44 Ga. App. 44, 160 S.E. 709 (1931).

Pendency of an action as a prerequisite.

- Confession of judgment which would authorize an entry of judgment thereon cannot be made until an action is instituted, and such confession of judgment must be made in a suit and after the suit's institution. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931).

Confession of judgment is the substitute for a verdict, and no such confession can be made until a suit is filed, and no confession of judgment can be entered unless the cause has been regularly sued out and docketed as in other cases. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931).

Before there can be a valid action pending in any court, the court must have jurisdiction of the parties. Thus, this section contemplates the pendency of a valid action, when the jurisdiction of the court is unquestioned, and nothing more, before there may be a confession of judgment by either party as provided by this section, and this would be true whether such party is an individual, a partnership, or a corporation. Wade v. Combined Mut. Cas. Co., 201 Ga. 318, 39 S.E.2d 681 (1946).

Valid ground for setting aside judgment.

- Allegation, in a motion to set aside a judgment rendered on a confession of judgment, that "at the time said confession was entered" the suit had not been docketed as provided in this section, constitutes a ground for setting aside the judgment. Thomas v. Bloodworth, 44 Ga. App. 44, 160 S.E. 709 (1931).

Relationship to common law judgments by confession.

- Courts should construe this section in connection with the common-law principle that a confession of judgment is one made after the action is commenced; and so construing the judgment, hold that no confession of judgment, made before suit is commenced, can be entered in a cause commenced after the confession is made, and that no valid judgment can be rendered upon such confession so made and entered. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931); Whitley v. Southern Whsle. Corp., 45 Ga. App. 445, 164 S.E. 903 (1932).

This section has no application to judgments by confession at the common law, which had to be entered after action had been brought and process had been regularly served. Greenfield v. Chronicle Printing Co., 107 Ga. App. 442, 130 S.E.2d 526 (1963).

When entering of judgment not authorized.

- Agreement by a debtor to confess judgment in behalf of the creditor, which was made months prior to the institution of a suit, did not authorize the entering of a judgment of confession in a suit afterwards instituted. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931).

Confession itself is not the judgment of the court, but amounts to no more than an admission of indebtedness, and an agreement to take judgment thereon when the judgment can properly be rendered. Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617 (1931); Whitley v. Southern Whsle. Corp., 45 Ga. App. 445, 164 S.E. 903 (1932).

Authority to confess may be given by warrant of attorney executed at the time the debt is created. Greenfield v. Chronicle Printing Co., 107 Ga. App. 442, 130 S.E.2d 526 (1963).

Effect on third persons.

- When a party, upon equitable proceeding filed while the court is in session, obtains by consent a general judgment, such judgment, while good inter partes, cannot affect the rights of third persons. Ainsworth v. Mobile Fruit & Trading Co., 102 Ga. 123, 29 S.E. 142 (1897).

Full faith and credit in foreign state.

- When a resident of this state executed a promissory note, to be enforced in the State of Pennsylvania, by agreeing to a confession of judgment in the event of default, and waiving the right to personal service, such agreement is enforceable and the judgment based thereon is valid and entitled to full faith and credit in this state. Parker v. Fidelity Bank, 151 Ga. App. 733, 261 S.E.2d 465 (1979).

Full faith and credit is given by courts of this state to valid judgments from other states, when such judgments do not contravene Georgia laws. A valid judgment by confession of an attorney in a court is not such a judgment as would be contravened by the provisions of this section. Cocke v. Truslow, 91 Ga. App. 645, 86 S.E.2d 686 (1955). For comment, see 18 Ga. B.J. 92 (1955).

When judgment not contrary to Georgia laws.

- Judgment obtained in a foreign state in an action upon a note which contained a confession of judgment clause, where an attorney appeared for the defendant, and personal service was obtained upon the nonresident defendant in Georgia, is not contrary to the policy or laws of this state. Melnick v. Bank of Highwood, 151 Ga. App. 261, 259 S.E.2d 667 (1979).

Cited in Wade v. Combined Mut. Cas. Co., 201 Ga. 318, 39 S.E.2d 681 (1946).

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judgments, § 204 et seq.

C.J.S.

- 49 C.J.S., Judgments, §§ 170, 173, 174, 175.

ALR.

- Warrant to confess judgment as affected by statute of limitations, 21 A.L.R. 774; 172 A.L.R. 997.

Power of municipality to consent to judgment against itself, 67 A.L.R. 1503.

Validity and effect of cognovit or warrant of attorney to confess judgment in conditional sale contract, 89 A.L.R. 1106.

Correction of mistake in judgment entered under warrant of attorney to confess judgment, 144 A.L.R. 830.

Necessity in action on judgment of sister state confessed under warrant of attorney, of alleging and proving the law of the latter state permitting such judgment, 155 A.L.R. 921.

Necessity that the transcript of a judgment of another state upon a cognovit under warrant of attorney shall include the cognovit and the note containing the alleged warrant of attorney, 162 A.L.R. 685.

Right to enter judgment by confession as affecting suspension of statute of limitations during absence of debtor from state, 172 A.L.R. 997.

What law governs validity of warrant or power of attorney to confess judgment, 19 A.L.R.2d 544.

Payment by obligor on note or other instrument containing warrant of attorney to confess judgment as extending time within which power to confess may be exercised, 35 A.L.R.2d 1452.

Necessity, in order to enter judgment by confession on instrument containing warrant of attorney, that original note or other instrument and original warrant be produced or filed, 68 A.L.R.2d 1156.

Successive judgments by confession on cognovit note or similar instrument, 80 A.L.R.2d 1380.

Warrants of attorney to confess judgment: requirements as to signing, sealing, and attestation, 3 A.L.R.3d 1147.

Constitutionality, construction, application, and effect of statute invalidating powers of attorneys to confess judgment or contracts giving such power, 40 A.L.R.3d 1158.

Modern views of state courts as to whether consent judgment is entitled to res judicata or collateral estoppel effect, 91 A.L.R.3d 1170.

Suspension of judgment not to affect creditor's rights.

- While judgment is suspended upon the entering of an appeal, such suspension is not to affect the creditor's rights. In re Tinsley, 421 F. Supp. 1007 (M.D. Ga. 1976), aff'd, 554 F.2d 1064 (5th Cir. 1977).

Appeal from order appointing administrator.

- Appeal from an ordinary's (now probate judge) order appointing an administrator suspends the judgment, but it does not vacate the judgment. Shadburn Banking Co. v. Streetman, 180 Ga. 500, 179 S.E. 377 (1935).

Supersedeas deprives the trial court of jurisdiction to take further proceedings towards enforcement of the judgment superseded. Tyree v. Jackson, 226 Ga. 642, 177 S.E.2d 159 (1970).

Simultaneous state and federal actions.

- When simultaneous actions challenging the constitutionality of O.C.G.A. § 36-1-16 were pending in state and federal court, and an appeal from the federal district court order was pending, estoppel by judgment precluded state court consideration of the matter on appeal because judgments from a federal court remain binding during the pendency of an appeal and are not suspended. Mayor of Forsyth v. Monroe County, 260 Ga. 296, 392 S.E.2d 865 (1990).

Cited in New Amsterdam Cas. Co. v. Russell, 103 Ga. App. 553, 120 S.E.2d 150 (1961); Lexington Developers, Inc. v. O'Neal Constr. Co., 143 Ga. App. 440, 238 S.E.2d 770 (1977); Bell v. Bell, 247 Ga. App. 462, 543 S.E.2d 455 (2000); Amstead v. McFarland, 287 Ga. App. 135, 650 S.E.2d 737 (2007).

C.J.S.

- 50 C.J.S., Judgments, § 850.

ALR.

- Appeal from award of injunction as stay or supersedeas, 93 A.L.R. 709.

Right of appeal from judgment or decree as affected by acceptance of benefit thereunder, 169 A.L.R. 985.

Defeated party's payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal, 39 A.L.R.2d 153.

Liability insurer's duty to pay injured person as affected by appeal or grant of new trial, or pendency of appeal or motion for new trial, from judgment against insured, or by the fact that time for appeal or motion for new trial has not expired, 31 A.L.R.3d 899.

Verdict on trial of appeal in justice of the peace court.

- An attorney at law for a party in whose favor a verdict is rendered on the trial of an appeal in a justice of the peace court can enter in behalf of the attorney's client a judgment on such verdict at any time within four days after the judgment of the court, and, if such judgment conforms to the verdict, the justice has no alternative but to transcribe the verdict upon the docket. Scott v. Bedell, 108 Ga. 205, 33 S.E. 903 (1899).

Entering up judgment against defendant and sureties on replevy bond.

- When in the foreclosure of a landlord's lien the defendant contested the lien and gave a replevy bond for the eventual condemnation money, and the case was appealed to the superior court, after the jury found against the defendant, it was legal and proper to enter up judgment against the defendant, and also against the sureties on the replevy bond, without further notice to them. Peppers v. Coil, 113 Ga. 234, 38 S.E. 823 (1901).

Cited in Bank of Charleston v. Moore, 6 Ga. 416 (1849); Scott v. Bedell, 108 Ga. 205, 33 S.E. 903 (1899); Bailey v. Ware & Harper, 19 Ga. App. 255, 91 S.E. 275 (1917); CS-Lakeview at Gwinnett v. Retail Dev. Partners, 268 Ga. App. 480, 602 S.E.2d 140 (2004).

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, §§ 325, 327.

ALR.

- Right of appeal from judgment or decree as affected by acceptance of benefit thereunder, 169 A.L.R. 985.

Meaning of section.

- Former Civil Code 1910, § 5969 (see now O.C.G.A. § 9-13-34) (right to transfer execution) and former Code 1933, § 110-901 (see now O.C.G.A. § 9-12-21) declare in express terms the same principles involved in former Civil Code 1910, §§ 4342 and 5670 (see now O.C.G.A. § 9-13-75) (setoff of judgments). Odom v. Attaway, 173 Ga. 883, 162 S.E. 279 (1931).

Multiple transfers or assignments of judgments allowed.

- Under the terms of former Civil Code 1910, § 5969 (see now O.C.G.A. § 9-13-34) (right to transfer execution) former Civil Code 1910, § 5969 (see now O.C.G.A. § 9-12-21), a judgment may be transferred or assigned any number of times, provided there was good faith, and in all cases when done in good faith the transferee shall have the same rights, and be liable to the same equities, and subject to the same defenses as the original plaintiff in judgment was. Odom v. Attaway, 173 Ga. 883, 162 S.E. 279 (1931).

This section does not render judgments negotiable in the strict sense so as to place the judgments on the high commercial plane occupied by negotiable paper. Western Nat'l Bank v. Maverick Nat'l Bank, 90 Ga. 339, 16 S.E. 942, 35 Am. St. R. 210 (1892); Register v. Southern States Phosphate & Fertilizer Co., 157 Ga. 561, 122 S.E. 323 (1924).

Judgments still subject to prior equities.

- Though judgments and executions are called negotiable, it certainly cannot be in any sense which raises them to any dignity higher than that which they enjoyed before. They are still subject to all prior equities. Cohen v. Prater, 56 Ga. 204 (1876).

Formalities of transfer or assignment.

- To pass legal title by the plaintiff in execution, there must be an endorsement or assignment thereof in writing. Delivery is not essential if the intention of the plaintiff in writ of fieri facias was to pass title to the transferee. Colter v. Livingston, 154 Ga. 401, 114 S.E. 430 (1922); Arnold v. Citizens' & S. Nat'l Bank, 47 Ga. App. 254, 170 S.E. 316 (1933).

Formal deed of assignment is not necessary, but evidence in writing, which shows that the plaintiff has conveyed the interest in the judgment or execution to the person claiming to be the assignee, will be sufficient. Dugas v. Mathews, 9 Ga. 510, 54 Am. Dec. 361 (1851).

Transfer in writing need not be under seal. Loganville Banking Co. v. Broadnax, 151 Ga. 88, 106 S.E. 4 (1921).

Protected equities are between the parties.

- Equities protected by this section, irrespective of notice, are equities between the parties to the judgment, and not those in favor of strangers to the judgment, as to whose names and interest the record is silent. Western Nat'l Bank v. Maverick Nat'l Bank, 90 Ga. 339, 16 S.E. 942, 35 Am. St. R. 210 (1892); Parker v. Planters Bank, 142 Ga. 160, 82 S.E. 556 (1914).

Assignee of a judgment could transfer the judgment to another. Price v. Bradford, 5 Ga. 364 (1848); Register v. Southern States Phosphate & Fertilizer Co., 157 Ga. 561, 122 S.E. 323 (1924).

Assignee of foreign judgment held not joint defendant.

- Georgia rules as to the consequences which result from payment by one defendant of a joint judgment and of one's receipt back of an assignment from the judgment-creditor have no application when, as to the defendant, the plaintiff did not pay a joint judgment, the only payment made by the plaintiff was in settlement of a second suit in Alabama, in which action the defendant was not a party, and the plaintiff is not a joint defendant as to the underlying judgment in the first suit in Alabama, which individual judgment against the defendant it is that plaintiff seeks to domesticate as the assignee thereof. Lacy v. Ceravolo, 180 Ga. App. 307, 348 S.E.2d 726 (1986).

Transfer of writ of fieri facias.

- Without express authority, a sheriff cannot transfer a writ of fieri facias in the sheriff's hands for collection. Hardwick & Co. v. Cash, 140 Ga. 608, 79 S.E. 532 (1913).

Assignee of judgment could not bring non-assignable fraudulent transfer action.

- In a suit by an assignee of a judgment seeking to set aside a fraudulent transfer by the judgment debtor to a corporation, the assignee's fraudulent transfer claim did not survive the assignment of the California judgment based on Georgia's assignment statute, O.C.G.A. § 44-12-24, and was not revived by O.C.G.A. § 9-11-25(c). EMM Credit, LLC v. Remington, 343 Ga. App. 710, 808 S.E.2d 96 (2017).

When judgment amendable between parties.

- When the rights of an executrix of her husband's estate, as bona fide transferee of a judgment, are derivative of one of the original party defendants, the judgment is subject to amendment as between the parties. Franklin v. Sea Island Bank, 120 Ga. App. 654, 171 S.E.2d 866 (1969).

Assignment and enforcement of partial judgments.

- Assignment of a partial judgment under O.C.G.A. § 9-12-21 was analogous to the assignment of a portion of a debt and, under Georgia law, when an assignment conveyed only a portion of a debt, it was not enforceable unless the debtor consented thereto because a creditor should not be allowed to split a single claim into many claims thereby subjecting the debtor to a multiplicity of suits; just as a creditor should not be allowed to split a single claim into many claims, neither should a judgment holder be allowed to split a judgment and subject a defendant to a multiplicity of suits, without the consent of the defendant. Rathbone v. Ward, 268 Ga. App. 822, 603 S.E.2d 20 (2004).

Cited in Hill v. McCullock, 20 Ga. 637 (1856); Hardwick & Co. v. Cash, 140 Ga. 608, 79 S.E. 532 (1913); Commercial Credit Co. v. Jones Motor Co., 46 Ga. App. 464, 167 S.E. 768 (1933); Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79, 208 S.E.2d 1 (1974).

Transfer improper.

- Transfer by a parent of a child support judgment without resulting benefit to the child would be inconsistent with the parent's duties as natural guardian of the child and the child's property. 1972 Op. Att'y Gen. No. 72-147.

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judgments, §§ 170, 431 et seq.

C.J.S.

- 49 C.J.S., Judgments, § 832 et seq.

ALR.

- Entering judgment as collateral security, 3 A.L.R. 851.

Agreement for contingent fee as assignment of interest in judgment, 19 A.L.R. 399.

Necessity and sufficiency of notice of assignment of judgment to affect stranger dealing with real property on which the judgment is a lien, 30 A.L.R. 820.

Payment of judgment by debtor without notice of its assignment, 32 A.L.R. 1021.

Assignment of judgment, or an interest therein, to attorney for his services in procuring it, as subject to setoff of judgment against the assignor, 51 A.L.R. 1278.

Assignment of judgment as carrying collateral rights of assignor as to incidental bonds, 63 A.L.R. 290.

Judgment in tort action as subject of assignment, attachment, or garnishment pending appeal, 121 A.L.R. 420.

Enforceability of warrant of attorney to confess judgment against assignee, guarantor, or other party obligating himself for performance of primary contract, 5 A.L.R.3d 426.

Reason judgment held by assignee not subject to setoff favoring judgments against assignor.

- Claim of the assignee of a judgment is subject to such equities and defenses as may have existed in favor of the judgment debtor against the judgment creditor at the time of the assignment, but is not subject to rights which did not then exist in favor of such judgment debtor and of which the debtor did not become possessed until some time later as by the subsequent purchase of judgments against the judgment creditor. Accordingly, a judgment which is held by an assignee is not subject to a setoff in favor of judgments existing against the assignor, but not acquired by the judgment debtor until after the assignment of the former judgment. Sheffield v. Preacher, 175 Ga. 719, 165 S.E. 742 (1932).

Cited in Kennedy v. Redwine, 59 Ga. 327 (1877); Southern Star Lightning Rod Co. v. Duvall, 64 Ga. 262 (1879); Shurley v. Black, 156 Ga. 683, 119 S.E. 618 (1923).

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judgments, § 170.

C.J.S.

- 49 C.J.S., Judgments, § 832 et seq.

ALR.

- Payment of judgment by debtor without notice of its assignment, 32 A.L.R. 1021.

Enforceability of warrant of attorney to confess judgment against assignee, guarantor, or other party obligating himself for performance of primary contract, 5 A.L.R.3d 426.

Consent judgment not binding on nonparty.

- Consent judgment and the determination therein that the settlement is "just and fair" are not binding upon a nonparty joint tortfeasor sued for contribution. Wilson v. Norfolk S. Corp., 200 Ga. App. 523, 409 S.E.2d 84 (1991).

Testing consent judgment by extraordinary motion for new trial.

- Putative father's petition for a blood test was, in substance, an extraordinary motion for a new trial based on newly discovered evidence and O.C.G.A. § 9-12-23 was not a barrier to his attack upon an earlier consent judgment entered in a support proceeding. Department of Human Resources v. Browning, 210 Ga. App. 546, 436 S.E.2d 742 (1993).

Cited in New v. Wilkins, 178 Ga. App. 337, 343 S.E.2d 136 (1986); Venture Design, Ltd. v. Original Appalachian Artworks, Inc., 197 Ga. App. 432, 398 S.E.2d 781 (1990).

Basis for laws relating to conclusiveness.

- Former Code 1933, §§ 110-501 and 110-503 (see now O.C.G.A. §§ 9-12-40 and9-12-42) provide the primary basis for the laws relating to conclusiveness of judgments. Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975).

Meaning of section.

- Read together and affirmatively, O.C.G.A. §§ 9-12-40 and9-12-42 (judgment no bar absent decision on merits) provide that a judgment on the merits of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue, in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981).

Apparent conflict with other sections reconciled.

- Apparent conflict between former Civil Code 1910, §§ 4336 and 5943 (see now O.C.G.A. § 9-12-40) and former Code 1910, §§ 4335, 4337, 5678, and 5679 (see now O.C.G.A. §§ 9-2-44 and9-12-42) was reconciled by the fact that former Civil Code 1910, §§ 4335, 4337, 5678, and 5679 (see now O.C.G.A. §§ 9-2-44 and9-12-42) have special application to estoppels by judgment, and this section applied when a plea of res adjudicata was available. Camp v. Lindsay, 176 Ga. 438, 168 S.E. 284 (1933).

Actions must be based on same cause of action.

- This section is operative only if the two actions are based upon the same cause of action. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974).

Factors in determining if claim is barred.

- In deciding whether this section operates to bar a state court claim, the Court of Appeals will consider: (a) whether there is a valid antecedent judgment; (b) whether there is identity of parties; (c) whether there is identity of issues; and (d) whether reasons of public policy militate against a strict application of this section in this case. Fierer v. Ashe, 147 Ga. App. 446, 249 S.E.2d 270 (1978).

Effect of stare decisis.

- Stare decisis, unlike res judicata or collateral estoppel, does not involve claim preclusion or issue preclusion; stare decisis does not work as a bar but only dictates the conclusion of law which will be made upon a given set of facts. Norris v. Atlanta & W.P.R.R., 254 Ga. 684, 333 S.E.2d 835 (1985).

In plaintiff consumer's Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., action against defendant collection attorney, when the consumer's counsel presented to the court two unpublished opinions from Georgia trial courts as supporting an argument that the collection attorney's state court deficiency action was barred by the statute of limitations, those unpublished opinions were not persuasive authority. Almand v. Reynolds & Robin, P.C., 485 F. Supp. 2d 1361 (M.D. Ga. 2007).

Res judicata and estoppel by judgment distinguished.

- While res judicata applies only as between the same parties and upon the same cause of action to matters which were actually in issue or which under the rules of law could have been put in issue, estoppel by judgment applies as between the same parties upon any cause of action to matters which were directly decided in the former suit. Spence v. Erwin, 200 Ga. 672, 38 S.E.2d 394 (1946); Harvey v. Wright, 80 Ga. App. 232, 55 S.E.2d 835 (1949); A.R. Hudson Realty, Inc. v. Hood, 151 Ga. App. 778, 262 S.E.2d 189 (1979); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980); Roddenbery v. Roddenbery, 255 Ga. 715, 342 S.E.2d 464 (1986); Jim West Housemovers v. Cobb County, 259 Ga. 314, 380 S.E.2d 251 (1989).

Generally, res judicata bars relitigation of any matter of a cause of action that was, or could have been, put in issue and adjudicated in a prior proceeding between the same parties, while estoppel by judgment prevents relitigation in a subsequent suit (involving a different cause of action) of a matter which was actually adjudicated in a former case. Neither defense, however, is available unless the subsequent suit is between the same parties or their privies. Blackburn v. Blackburn, 168 Ga. App. 66, 308 S.E.2d 193 (1983).

Former decision must have been based on merits.

- In deciding whether this section operates to bar a state court claim, it must have been based not on purely technical grounds but at least in part on the merits when under the pleadings they were or could have been involved. Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833 (1938); Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Same parties or their privies as a prerequisite.

- Res judicata and estoppel by judgment can only be set up in a subsequent suit between the same parties or their privies. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952); Walka Mt. Camp, No. 565, Woodmen of World, Inc. v. Hartford Accident & Indem. Co., 222 Ga. 249, 149 S.E.2d 365 (1966); Anderson Oil Co. v. Benton Oil Co., 246 Ga. 304, 271 S.E.2d 207 (1980).

Former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants; although, in the absence of evidence to the contrary, the facts as the facts existed at the time of the former judgment would be presumed to continue. Durham v. Crawford, 196 Ga. 381, 26 S.E.2d 778 (1943).

Neither res judicata nor collateral estoppel shown.

- When a claimant in action conveyed property in dispute before a claim was filed, a judgment finding the property levied on not to be subject to levy is not res judicata nor a collateral estoppel in favor of one to whom the claimant conveyed the property. Goodwin v. Bowen, 184 Ga. 408, 191 S.E. 691 (1937).

Subsequent pleadings different only as to degree of detail.

- Effect of a judgment cannot be avoided by a difference in the pleadings, when those in the first case could and should have been as full as those in the second, though in fact the pleadings were not. Booker v. Booker, 107 Ga. App. 339, 130 S.E.2d 260 (1963).

Single cause of action with several elements of damage admits of but one action, when there is an identity of subject matter and of parties. Massey v. Stephens, 155 Ga. App. 243, 270 S.E.2d 796 (1980).

Plaintiff is not permitted to split a plaintiff's single cause of action to seek in successive litigation the enforcement of first one remedy and then a second. Massey v. Stephens, 155 Ga. App. 243, 270 S.E.2d 796 (1980).

Principle test for comparing causes of action is whether or not the primary right and duty, and the delict or wrong are the same in each action. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974).

Prerequisites to personal judgments and relief.

- Personal judgment cannot be obtained against a person who is not named as a party defendant and properly served in the action. Nor may a judgment be rendered against a party defendant in favor of one who is not party to the case. Neither can the court grant relief as to matters not pleaded. Burgess v. Nabers, 122 Ga. App. 445, 177 S.E.2d 266 (1970).

When collateral questions are conclusive.

- Judgment will not be conclusive on the trial of another case between the same parties involving the same question when a question comes collaterally before a court, and a judgment is rendered in the case, and it does not appear, except by inference from the judgment, the pleadings, and the evidence, that the question collaterally made was actually passed upon. Cravey v. Druggists Coop. Ice Cream Co., 66 Ga. App. 909, 19 S.E.2d 845 (1942).

When it's a matter of conjecture as to issues litigated.

- Judgment is not an estoppel if a judgment and extrinsic evidence leave it as a mere matter of conjecture as to what questions of fact were litigated and determined in the former action. Cravey v. Druggists Coop. Ice Cream Co., 66 Ga. App. 909, 19 S.E.2d 845 (1942).

Intestacy determination.

- When the court of ordinary (now probate court) had determined an intestacy, such an adjudication is not conclusive to the same extent as other judgments. On the contrary, the question would seem to be open for future consideration in the event a will should be brought to the attention of the court in a proper manner. Walden v. Mahnks, 178 Ga. 825, 174 S.E. 538 (1934).

Setting aside judgment of superior court.

- Judgment of the superior court, apparently regular and legal, can only be set aside in a proper proceeding for that purpose in the court wherein the judgment was rendered. Barron v. Lovett, 207 Ga. 131, 60 S.E.2d 458 (1950).

Construction that renders judgment legal preferred.

- When a judgment is susceptible of two meanings, one of which would render the judgment illegal and the other proper, that construction will, if reasonably possible, be given the judgment that would render the judgment legal. Byrd v. Goodman, 195 Ga. 621, 25 S.E.2d 34 (1943).

Judgment on affidavit of illegality of execution is a bar to equitable relief thereafter. Cone v. Eubanks, 167 Ga. 384, 145 S.E. 652 (1928).

Defenses of defendant in execution.

- Defendant in execution may not by affidavit of illegality make the defense of payment of debt, but only the payment of the execution itself. Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940).

Settlement attempt made after judgment rendered.

- Petitioner cannot, after judgment, set up a settlement of the cause of action made before rendition of the judgment. Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940).

Special plea filed after judgment of affirmance.

- Affirmance of the judgment without condition or direction left the trial court without jurisdiction to entertain or pass on a "special plea" filed after the judgment of affirmance. Federal Inv. Co. v. Ewing, 166 Ga. 246, 142 S.E. 890 (1928).

Creditor proceeding against trust property to satisfy personal judgment.

- When a creditor obtains a personal judgment against a trustee on a note executed by the latter for goods, merchandise, and cash obtained and used for the benefit of the cestuis que trust, and on which a nulla bona has been returned, the creditor may proceed to subject the trust property to the payment of the judgment. The judgment against the trustee does not render the subsequent proceeding res adjudicata. Faulk v. Smith, 168 Ga. 448, 148 S.E. 100 (1929).

Binding nature of valid judgment.

- Judgment rendered between creditor and debtor, until set aside for fraud, accident, mistake, or other cause, was conclusive and binding between them as to the amount of the indebtedness. The agreement alleged to have been made between the parties therefore was without consideration and not binding. Creswell v. Bryant Hdwe. Co., 166 Ga. 228, 142 S.E. 885 (1928).

Since the municipal court had jurisdiction of the subject matter and of the parties and, although the defendant in that suit defended upon the ground that the plaintiff's right was an equitable one only and was cognizable only in a court of equity, the court nevertheless had jurisdiction to determine this question, the judgment against the defendant was res judicata as to the matter pled and of the plaintiff's right to recover. Hood v. Bibb Brokerage Corp., 48 Ga. App. 606, 173 S.E. 236 (1934).

One who obtained a judgment from a court of competent jurisdiction will not be heard to question the judgment's validity when the court has acted within the court's jurisdiction and the proceedings are otherwise legal. Thomas v. Travelers Ins. Co., 53 Ga. App. 404, 185 S.E. 922 (1936); Shaw v. Davis, 119 Ga. App. 801, 168 S.E.2d 853 (1969).

All questions between parties once and finally settled by a solemn decree must be considered an end to the litigation. Those questions cannot be relitigated in other actions directly or indirectly. Final judgment of the court cannot be reviewed between the same parties in the superior court or on writ of error to the Supreme Court. One of the prime objects of judicial procedure is to forever settle and end disputes between litigants, and courts never look with favor on the unnecessary prolongation of litigation, and particularly disapprove attempts to ignore or evade binding judgments. Lankford v. Holton, 196 Ga. 631, 27 S.E.2d 310 (1943); Rewis v. Bennett, 213 Ga. 535, 100 S.E.2d 196 (1957); Smith v. Robinson, 214 Ga. 835, 108 S.E.2d 317 (1959); Bowman v. Bowman, 215 Ga. 560, 111 S.E.2d 226 (1959).

Principle which fixes the absolute conclusiveness of a judgment of a court of competent jurisdiction upon the parties and their privies applies whether the reasons upon which the judgment was based were sound or not, and even if no reasons at all were given. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946).

Regardless of the correctness of the trial court's decision, it cannot be relitigated. Johnston v. Duncan, 227 Ga. 298, 180 S.E.2d 348 (1971).

Consent decree involving title to realty was not void for want of any description or for want of any words to furnish a key to any description of the lands when pleadings on which consent decree was based gave a complete description of the property. Bentley v. Still, 198 Ga. 743, 32 S.E.2d 814 (1945).

Consent judgment rendered to conform with a settlement agreement without a party's participation would not come within this section, there having been no judicial decision upon the merits in the absence of a true adversary proceeding. Blakely v. Couch, 129 Ga. App. 625, 200 S.E.2d 493 (1973).

Condemnation judgment must be set aside before injunction available.

- When a court having jurisdiction of condemnation proceedings enters a judgment that the lands are condemned for public purposes, the condemnee has no right to enjoin the taking and use of the lands by the condemnor, without first having the judgment of condemnation vacated or set aside. Hogg v. City of La Grange, 202 Ga. 764, 44 S.E.2d 760 (1947).

Judgment discharging an administrator relieves the administrator from further liability to those interested in the estate, unless such judgment is set aside either on motion in the court of ordinary, or by equitable proceeding in the superior court. Stanton v. Gailey, 72 Ga. App. 292, 33 S.E.2d 747 (1945).

Introduction of entire record along with decree offered in evidence.

- When a decree is offered in evidence to establish any particular state of facts, or as an adjudication upon the subject matter, such decree is admissible only when accompanied by the entire record of the suit in which the decree was rendered. Holcombe v. Jones, 197 Ga. 825, 30 S.E.2d 903 (1944).

Disallowing bankruptcy claim for untimely filing.

- Judgment of a court of bankruptcy disallowing a claim on the ground that the claim was not filed within the time is not an adjudication upon the merits of the claim, and when thereafter, the holder of such claim attempts to enforce the claim by levy upon the property of the bankrupt, it is error to sustain an affidavit of illegality thereto on the ground that the judgment of the bankruptcy court was an adjudication that the judgment was not a valid lien against the property of the bankrupt. Georgia Sec. Co. v. Arnold, 56 Ga. App. 532, 193 S.E. 366 (1937).

Master and servant relationship does not ipso facto constitute privity for purposes of res judicata or estoppel by judgment. Porterfield v. Gilmer, 132 Ga. App. 463, 208 S.E.2d 295 (1974), aff'd, 233 Ga. 671, 212 S.E.2d 842 (1975).

Construction in conjunction with section prescribing time for filing answers.

- Former Code 1933, § 85-1509 (see now O.C.G.A. § 44-6-165), prescribing the time in which answers may be filed, must be construed in harmony with the rule as to the conclusiveness of judgments, and will not authorize parties to file objections to the return of partitioners on grounds which were adjudicated upon the hearing of the application for their appointment. Cates v. Duncan, 181 Ga. 686, 183 S.E. 797 (1936).

State court review upholding administrative determination as to constitutional violations.

- Although a person asserting constitutional violations is entitled to a de novo hearing in federal court, regardless of whether the person resorted to an administrative hearing or whether such hearing purported to decide constitutional issues, when there has been state court review upholding an administrative determination, the state judicial determination is entitled to res judicata and collateral estoppel effect in the state court, and shall be given full faith and credit in federal court. Sharpley v. Davis, 786 F.2d 1109 (11th Cir. 1986).

Subsequent action following failure to prosecute cause assumed from another.

- When buyer purchased encumbered property upon representation that the property was unencumbered, subsequently paid the seller's debt to avoid foreclosure and assumed the creditor's cause of action against the seller, and then allowed that action to be dismissed for lack of prosecution, the buyer's action against the seller for breach of warranty and against the attorney for malpractice was not barred. Klosterman v. Tudor, 170 Ga. App. 4, 315 S.E.2d 920 (1984).

Judgment in prior proceeding found not binding in present litigation. See Shepard v. Byrd, 581 F. Supp. 1374 (N.D. Ga. 1984).

Motion to set aside judgment not barred.

- Res judicata and estoppel by judgment will not bar either a motion to set aside a judgment or an extraordinary motion for new trial based upon newly discovered evidence. Herringdine v. Nalley Equip. Leasing, Ltd., 238 Ga. App. 210, 517 S.E.2d 571 (1999).

Superior court abused the court's discretion in denying a city's motion to set aside a judgment granting a police officer's demand for judgment on the Workers' Compensation Board's award because any earlier trial court orders were subject to a proper motion to set aside pursuant to O.C.G.A. § 9-12-40; the city was authorized to move to set aside the superior court's order granting the demand for judgment on the Board's award on the ground of mistake under O.C.G.A. § 9-11-60(d)(2). City of Atlanta v. Holder, 309 Ga. App. 811, 711 S.E.2d 332 (2011).

Effect of voluntary dismissal with prejudice of action under federal act.

- Voluntary dismissal with prejudice of action for penalties under federal Truth-In-Lending Act, 15 U.S.C. § 1601 et seq., as to bank merged the plaintiffs' entire cause of action, including rescission remedy, for nondisclosures and barred any subsequent action in this state against the seller for the seller's "joint and not separate" liability for failure to make the disclosures in the same transaction. Massey v. Stephens, 155 Ga. App. 243, 270 S.E.2d 796 (1980).

Dismissal with prejudice is res judicata of all questions which might have been litigated in the action and is a final disposition, barring the right to bring another action on the same claim. Hutcheson Medical Ctr. v. Scealf, 205 Ga. App. 204, 422 S.E.2d 20, cert. denied, 205 Ga. App. 900, 422 S.E.2d 20 (1992).

Application of collateral estoppel by federal bankruptcy court.

- Although, under Georgia law, the collateral estoppel effect of a judgment entered against a debtor is not diminished by the fact that the judgment resulted from a default, the federal bankruptcy court, based on policy considerations, would not apply collateral estoppel to conclude from a state default judgment in a libel and slander case that the defendant's intent in making alleged defamatory statements was willful and malicious so as to render the resulting debt nondischargeable in bankruptcy. Wright v. McIntyre, 57 Bankr. 961 (Bankr. N.D. Ga. 1986).

To the extent that issues relating to the fraudulent conduct of the debtor were decided in the state court fraud action, collateral estoppel bound the bankruptcy court to the determination made on those matters. Moore v. Gill, 181 Bankr. 666 (Bankr. N.D. Ga. 1995).

Since the opposing party could have, regarding a sanctions order imposed against the opposing party, raised an alleged error concerning that order in an appeal of a declaratory judgment action filed against the opposing party, but did not do so, the opposing party was precluded from arguing alleged error regarding the merits of that sanction order on the opposing party's appeal of a later contempt order for the opposing party's willful failure to comply with the sanctions order. Franklin v. Gude, 259 Ga. App. 521, 578 S.E.2d 170 (2003).

Issue of taxability barred by past consent judgment.

- County board of tax assessors was collaterally estopped from re-litigating the issue of whether funeral vaults sold through pre-need burial packages but stored by their seller in the county were subject to ad valorem taxes under O.C.G.A. § 48-5-16 by a 2001 consent decree between the seller and the assessors that stated the vaults were not taxable. Morgan County Bd. of Tax Assessors v. Vantage Prods. Corp., 323 Ga. App. 823, 748 S.E.2d 468 (2013).

Cited in Bostwick v. Perkins, Hopkins & White, 1 Ga. 136 (1846); Stroup v. Sullivan, 2 Ga. 275, 46 Am. Dec. 389 (1847); Kenan & Rockwell v. Miller, 2 Ga. 325 (1847); Puffer Mfg. Co. v. Rivers, 10 Ga. App. 154, 73 S.E. 20 (1911); Jones v. Schacter, 31 Ga. App. 709, 121 S.E. 691 (1924); Burgamy v. Holton, 165 Ga. 384, 141 S.E. 42 (1927); Lester v. Southern Sec. Co., 168 Ga. 307, 147 S.E. 529 (1929); McDonald Mtg. & Realty Co. v. Feingold, 168 Ga. 763, 149 S.E. 132 (1929); Odom v. Attaway, 41 Ga. App. 51, 152 S.E. 148 (1930); Eison v. Cocker, 45 Ga. App. 122, 163 S.E. 511 (1932); Sells v. Sells, 175 Ga. 110, 165 S.E. 1 (1932); George v. Cox, 46 Ga. App. 125, 166 S.E. 868 (1932); Walden v. Mahnks, 178 Ga. 825, 174 S.E. 538 (1934); McEntyre v. Merritt, 49 Ga. App. 416, 175 S.E. 661 (1934); National Life & Accident Ins. Co. v. Leo, 50 Ga. App. 473, 178 S.E. 322 (1934); Rosenthal v. Langley, 180 Ga. 253, 179 S.E. 383 (1935); Atlanta Sav. Bank v. Kurfees, 181 Ga. 207, 181 S.E. 779 (1935); Key v. Metropolitan Cas. Ins. Co., 181 Ga. 402, 182 S.E. 607 (1935); Rozetta v. Rozetta, 181 Ga. 494, 182 S.E. 847 (1935); Gillis v. Atlantic Coast Line R.R., 52 Ga. App. 806, 184 S.E. 791 (1936); Woods v. Travelers Ins. Co., 53 Ga. App. 429, 186 S.E. 467 (1936); Ellis v. First Nat'l Bank, 182 Ga. 641, 186 S.E. 813 (1936); Jackson v. Massachusetts Mut. Life Ins. Co., 183 Ga. 659, 189 S.E. 243 (1936); Crider v. Harris, 183 Ga. 695, 189 S.E. 519 (1937); Crane v. Stratton, 185 Ga. 234, 194 S.E. 182 (1937); Sheldon & Co. v. Emory Univ., 184 Ga. 440, 191 S.E. 497 (1937); Simmons v. Williams Realty & Loan Co., 185 Ga. 154, 194 S.E. 356 (1937); Byrd v. Prudential Ins. Co., 185 Ga. 310, 195 S.E. 403 (1937); Hicks v. Wadsworth, 57 Ga. App. 529, 196 S.E. 251 (1938); United States v. Hatcher, 185 Ga. 816, 196 S.E. 773 (1938); McCollum v. Lark, 187 Ga. 292, 200 S.E. 276 (1938); Brinkley v. Newell, 188 Ga. 678, 4 S.E.2d 827 (1939); Blackwood v. Yellow Cab Co., 61 Ga. App. 149, 6 S.E.2d 126 (1939); Penn Mut. Life Ins. Co. v. Childs, 189 Ga. 835, 7 S.E.2d 907 (1940); Whitfield v. Maddox, 189 Ga. 878, 8 S.E.2d 54 (1940); Loveless v. Carten, 64 Ga. App. 54, 12 S.E.2d 175 (1940); Morris v. Georgia Power Co., 65 Ga. App. 180, 15 S.E.2d 730 (1941); Moody v. McHan, 66 Ga. App. 29, 16 S.E.2d 889 (1941); Allman v. Aldredge, 193 Ga. 269, 18 S.E.2d 478 (1942); Forrester v. Pullman Co., 66 Ga. App. 745, 19 S.E.2d 330 (1942); Cravey v. Druggists Coop. Ice Cream Co., 66 Ga. App. 909, 19 S.E.2d 845 (1942); Adams v. Higginbotham, 194 Ga. 292, 21 S.E.2d 616 (1942); Commercial Credit Corp. v. Citizens & S. Nat'l Bank, 68 Ga. App. 393, 23 S.E.2d 198 (1942); Lankford v. Holton, 197 Ga. 212, 28 S.E.2d 747 (1944); Bussell v. Glenn, 197 Ga. 816, 30 S.E.2d 617 (1944); Stanton v. Gailey, 72 Ga. App. 292, 33 S.E.2d 747 (1945); Andrews v. Aderhold, 201 Ga. 132, 39 S.E.2d 61 (1946); Williams v. Brannen, 75 Ga. App. 773, 44 S.E.2d 493 (1947); McCall v. Kliros, 76 Ga. App. 89, 45 S.E.2d 72 (1947); Settle v. McWhorter, 203 Ga. 93, 45 S.E.2d 210 (1947); Griffin v. Driver, 203 Ga. 481, 46 S.E.2d 913 (1948); Maddox v. Carithers, 77 Ga. App. 280, 47 S.E.2d 888 (1948); Gamble v. Gamble, 204 Ga. 82, 48 S.E.2d 540 (1948); Miller Serv., Inc. v. Miller, 77 Ga. App. 413, 48 S.E.2d 761 (1948); Turner v. Avant, 205 Ga. 426, 54 S.E.2d 269 (1949); Otwell Motor Co. v. Hill, 79 Ga. App. 686, 54 S.E.2d 765 (1949); Walton v. City of Atlanta, 89 F. Supp. 309 (N.D. Ga. 1949); Edenfield v. Lanier, 206 Ga. 696, 58 S.E.2d 188 (1950); Garr v. E.W. Banks Co., 206 Ga. 831, 59 S.E.2d 400 (1950); Morris v. Morris, 82 Ga. App. 384, 61 S.E.2d 156 (1950); Gamble v. Gamble, 207 Ga. 380, 61 S.E.2d 836 (1950); Parker v. Cherokee Bldg. Supply Co., 207 Ga. 710, 64 S.E.2d 51 (1951); McKenney v. Woodbury Banking Co., 208 Ga. 616, 68 S.E.2d 571 (1952); Carswell v. Shannon, 209 Ga. 596, 74 S.E.2d 850 (1953); Routon v. Woodbury Banking Co., 209 Ga. 706, 75 S.E.2d 561 (1953); Walker v. Hamilton, 210 Ga. 155, 78 S.E.2d 511 (1953); Brown v. Brown, 89 Ga. App. 428, 80 S.E.2d 2 (1953); Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 80 S.E.2d 212 (1954); Gaulding v. Gaulding, 210 Ga. 638, 81 S.E.2d 830 (1954); Bennett v. Bennett, 210 Ga. 721, 82 S.E.2d 653 (1954); Malcom v. Webb, 211 Ga. 449, 86 S.E.2d 489 (1955); Baker v. Decatur Lumber & Supply Co., 211 Ga. 510, 87 S.E.2d 89 (1955); Bostic v. Nesbitt, 212 Ga. 198, 91 S.E.2d 484 (1956); Threlkeld v. Whitehead, 95 Ga. App. 378, 98 S.E.2d 76 (1957); Galloway v. Merrill, 213 Ga. 633, 100 S.E.2d 443 (1957); Wells v. Keith, 213 Ga. 858, 102 S.E.2d 533 (1958); Allen v. Withrow, 215 Ga. 388, 110 S.E.2d 663 (1959); Shaw v. Miller, 215 Ga. 413, 110 S.E.2d 759 (1959); Beckanstin v. Dougherty County Council of Architects, 215 Ga. 543, 111 S.E.2d 361 (1959); Hackney v. Tench, 216 Ga. 483, 117 S.E.2d 453 (1960); Pattillo v. Atlanta & W.P.R.R., 216 Ga. 806, 120 S.E.2d 176 (1961); Russ Transp., Inc. v. Jones, 104 Ga. App. 612, 122 S.E.2d 282 (1961); Blanton v. Blanton, 217 Ga. 542, 123 S.E.2d 758 (1962); King Sales Co. v. McKey, 105 Ga. App. 787, 125 S.E.2d 684 (1962); Hardin v. Hardin, 218 Ga. 39, 126 S.E.2d 216 (1962); Banks v. Sirmans, 218 Ga. 413, 128 S.E.2d 66 (1962); John P. King Mfg. Co. v. Clay, 218 Ga. 382, 128 S.E.2d 68 (1962); Chandler v. Chandler, 107 Ga. App. 124, 129 S.E.2d 370 (1962); Lawhorn v. Atlantic Ref. Co., 299 F.2d 353 (5th Cir. 1962); Fidelity & Cas. Co. v. Parham, 218 Ga. 640, 129 S.E.2d 868 (1963); West v. Hatcher, 219 Ga. 540, 134 S.E.2d 603 (1964); Carswell v. Cannon, 110 Ga. App. 315, 138 S.E.2d 468 (1964); Patent Scaffolding Co. v. Byers, 220 Ga. 426, 139 S.E.2d 332 (1964); Stoddard Cleaners, Inc. v. Carr, 220 Ga. 707, 141 S.E.2d 434 (1965); Sirmons v. Banks, 220 Ga. 881, 142 S.E.2d 851 (1965); Banks v. Employees Loan & Thrift Corp., 112 Ga. App. 38, 143 S.E.2d 787 (1965); U.S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965); Horton v. Harvey, 221 Ga. 799, 147 S.E.2d 505 (1966); Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966); Sewell Dairy Supply Co. v. Taylor, 113 Ga. App. 729, 149 S.E.2d 540 (1966); Cromer v. Cromer, 222 Ga. 365, 149 S.E.2d 804 (1966); Adams v. Travelers Ins. Co., 114 Ga. App. 276, 151 S.E.2d 177 (1966); Uddyback v. George, 223 Ga. 311, 154 S.E.2d 577 (1967); Martin v. Phelps, 115 Ga. App. 552, 155 S.E.2d 447 (1967); McDonald v. Hester, 115 Ga. App. 740, 155 S.E.2d 720 (1967); Sams v. McDonald, 223 Ga. 451, 156 S.E.2d 31 (1967); Connecticut Indem. Co. v. Gaudio, 116 Ga. App. 672, 158 S.E.2d 680 (1967); Wren Mobile Homes, Inc. v. Midland-Guardian Co., 117 Ga. App. 22, 159 S.E.2d 734 (1967); Bailey v. Louisville & N.R.R., 117 Ga. App. 185, 160 S.E.2d 245 (1968); First Fed. Sav. & Loan Ass'n v. First Nat'l Bank, 224 Ga. 150, 160 S.E.2d 372 (1968); Swinney v. Reeves, 224 Ga. 274, 161 S.E.2d 273 (1968); Franklin v. Sea Island Bank, 120 Ga. App. 654, 171 S.E.2d 866 (1969); Miami Properties, Inc. v. Fitts, 226 Ga. 300, 175 S.E.2d 22 (1970); American Liberty Ins. Co. v. Sanders, 122 Ga. App. 407, 177 S.E.2d 176 (1970); Leggett v. Gibson-Hart-Durden Funeral Home, 123 Ga. App. 224, 180 S.E.2d 256 (1971); Williams v. Nuckolls, 229 Ga. 48, 189 S.E.2d 82 (1972); Brown v. Edwards, 229 Ga. 345, 191 S.E.2d 47 (1972); Bauder Finishing & Career College, Inc. v. Kettle, 230 Ga. App. 422, 197 S.E.2d 381 (1973); Hite v. Waldrop, 230 Ga. 684, 198 S.E.2d 665 (1973); Whitlock v. State, 230 Ga. 700, 198 S.E.2d 865 (1973); Myers v. United Servs. Auto. Ass'n, 130 Ga. App. 357, 203 S.E.2d 304 (1973); Price v. Georgia Indus. Realty Co., 132 Ga. App. 107, 207 S.E.2d 556 (1974); Harwell v. Harwell, 233 Ga. 89, 209 S.E.2d 625 (1974); Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974); Allstate Ins. Co. v. Harris, 133 Ga. App. 567, 211 S.E.2d 783 (1974); National Bank v. Cut Rate Auto Serv., Inc., 133 Ga. App. 635, 211 S.E.2d 895 (1974); Whitley Constr. Co. v. Whitley, 134 Ga. App. 245, 213 S.E.2d 909 (1975); Southern Motors of Savannah, Inc. v. Cleary, 134 Ga. App. 278, 213 S.E.2d 920 (1975)

Adams v. Adams, 234 Ga. 139, 214 S.E.2d 561 (1975); Ivey v. Ivey, 234 Ga. 532, 216 S.E.2d 827 (1975); Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816, 219 S.E.2d 39 (1975); King v. Calhoun First Nat'l Bank, 136 Ga. App. 239, 220 S.E.2d 759 (1975); Colodny v. Krause, 136 Ga. App. 379, 221 S.E.2d 239 (1975); Alcovy Realty Co. v. Stone Mt. Abstract Co., 137 Ga. App. 597, 224 S.E.2d 519 (1976); Delta Airlines v. Woods, 137 Ga. App. 693, 224 S.E.2d 763 (1976); Chilivis v. Dasher, 236 Ga. 669, 225 S.E.2d 32 (1976); Henderson v. Metropolitan Atlanta Rapid Transit Auth., 236 Ga. 849, 225 S.E.2d 424 (1976); Taylor v. Taylor, 138 Ga. App. 284, 226 S.E.2d 84 (1976); Moore v. Rowe, 238 Ga. 373, 233 S.E.2d 355 (1977); Ross v. State, 238 Ga. 445, 233 S.E.2d 381 (1977); Rothstein v. First Nat'l Bank, 141 Ga. App. 526, 233 S.E.2d 802 (1977); Tingle v. Cate, 142 Ga. App. 467, 236 S.E.2d 127 (1977); Colodny v. Dominion Mtg. & Realty Trust, 142 Ga. App. 730, 236 S.E.2d 917 (1977); International Paper Co. v. Kight, 239 Ga. 551, 238 S.E.2d 88 (1977); Lexington Developers, Inc. v. O'Neal Constr. Co., 143 Ga. App. 440, 238 S.E.2d 770 (1977); Parnell v. Etowah Bank, 144 Ga. App. 794, 242 S.E.2d 487 (1978); Dunn v. Royal Indem. Co., 145 Ga. App. 427, 243 S.E.2d 630 (1978); Paul v. Bennett, 241 Ga. 158, 244 S.E.2d 9 (1978); Smith v. Smith, 145 Ga. App. 816, 244 S.E.2d 917 (1978); Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978); Madison, Ltd. v. Price, 146 Ga. App. 837, 247 S.E.2d 523 (1978); Cooper v. Mercantile Nat'l Bank, 147 Ga. App. 136, 248 S.E.2d 201 (1978); Prince v. Prince, 147 Ga. App. 686, 250 S.E.2d 21 (1978); Kight v. Kight, 242 Ga. 563, 250 S.E.2d 451 (1978); P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 251 S.E.2d 72 (1978); Roberts v. Tomlinson, Inc., 242 Ga. 804, 251 S.E.2d 543 (1979); McBride v. Chilivis, 149 Ga. App. 603, 255 S.E.2d 80 (1979); Pace v. Merck, 149 Ga. App. 807, 256 S.E.2d 73 (1979); Harris v. Harris, 149 Ga. App. 842, 256 S.E.2d 86 (1979); Land v. Sellers, 150 Ga. App. 83, 256 S.E.2d 629 (1979); Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138 (1980); Federal Deposit Ins. Corp. v. Windland Co., 245 Ga. 194, 264 S.E.2d 11 (1980); McCarthy v. Holloway, 245 Ga. 710, 267 S.E.2d 4 (1980); Durden v. Barron, 155 Ga. App. 529, 271 S.E.2d 667 (1980); Hill v. Wooten, 247 Ga. 737, 279 S.E.2d 227 (1981); Graves v. American Alloy Steel, Inc., 160 Ga. App. 378, 287 S.E.2d 94 (1981); Childers v. Tauber, 160 Ga. App. 713, 288 S.E.2d 5 (1981); Collins v. Seaboard Coast Line R.R., 681 F.2d 1333 (11th Cir. 1982); Freeman v. Criterion Ins. Co., 693 F.2d 1021 (11th Cir. 1982); State Farm Fire & Cas. Co. v. Sweat, 547 F. Supp. 233 (N.D. Ga. 1982); Cole v. Jordan, 161 Ga. App. 409, 288 S.E.2d 260 (1982); Landmark First Nat'l Bank v. Schwall & Heuett, 161 Ga. App. 356, 288 S.E.2d 331 (1982); Bailey v. Wilkes, 162 Ga. App. 410, 291 S.E.2d 418 (1982); Subsequent Injury Trust Fund v. Alterman Foods, Inc., 162 Ga. App. 428, 291 S.E.2d 758 (1982); Howard v. State, 163 Ga. App. 159, 293 S.E.2d 548 (1982); East v. Pike, 163 Ga. App. 375, 294 S.E.2d 597 (1982); Butler v. Home Furnishing Co., 163 Ga. App. 825, 296 S.E.2d 121 (1982); Lowe Eng'rs, Inc. v. Royal Indem. Co., 164 Ga. App. 255, 297 S.E.2d 41 (1982); Whitaker v. Trust Co., 167 Ga. App. 360, 306 S.E.2d 329 (1983); McDaniel v. Colonial Mtg. Serv. Co., 167 Ga. App. 717, 307 S.E.2d 279 (1983); R.F. Parker Contracting Co. v. City of Atlanta, 168 Ga. App. 531, 309 S.E.2d 678 (1983); Willis v. Rauton, 168 Ga. App. 767, 310 S.E.2d 729 (1983); Oxendine v. Elliott, 170 Ga. App. 422, 317 S.E.2d 555 (1984); Flanders v. Georgia Farm Bureau Mut. Ins. Co., 171 Ga. App. 188, 318 S.E.2d 794 (1984); Davis v. First of Ga. Ins. Managers, Inc., 171 Ga. App. 347, 319 S.E.2d 517 (1984); Walton Motor Sales, Inc. v. Ross, 736 F.2d 1449 (11th Cir. 1984); Duncan v. Ball, 172 Ga. App. 750, 324 S.E.2d 477 (1984); Monroe v. Lubonivic, 174 Ga. App. 191, 329 S.E.2d 583 (1985); Wehunt v. Wren's Cross of Atlanta Condominium Ass'n, 175 Ga. App. 70, 332 S.E.2d 368 (1985); Citizens Exch. Bank v. Kirkland, 256 Ga. 71, 344 S.E.2d 409 (1986); Charter Medical-Fayette County, Inc. v. Health Planning Agency, Inc., 181 Ga. App. 184, 351 S.E.2d 547 (1986); Cole v. Smith, 182 Ga. App. 59, 354 S.E.2d 835 (1987); Jackson Elec. Membership Corp. v. Georgia Power Co., 257 Ga. 772, 364 S.E.2d 556 (1988); NCNB Nat'l Bank v. Charlton County, 258 Ga. 74, 365 S.E.2d 436 (1988); Byrd v. City of Atlanta, 683 F. Supp. 804 (N.D. Ga. 1988); Mobley v. Hopkins, 258 Ga. 767, 373 S.E.2d 754 (1988); Yeomans v. Galbreath, 259 Ga. 261, 378 S.E.2d 864 (1989); Jones v. Powell, 190 Ga. App. 619, 379 S.E.2d 529 (1989); Jamison v. West, 191 Ga. App. 431, 382 S.E.2d 170 (1989); McCracken v. City of College Park, 259 Ga. 490, 384 S.E.2d 648 (1989); Majestic Dev. Corp. v. Ferman, 259 Ga. 859, 388 S.E.2d 701 (1990); Taylor v. Bennett, 260 Ga. 20, 389 S.E.2d 242 (1990); United States Fid. & Guar. Co. v. State Farm Mut. Auto. Ins. Co., 195 Ga. App. 14, 392 S.E.2d 574 (1990); Justus v. Justus, 198 Ga. App. 533, 402 S.E.2d 126 (1991); Hunt v. Lee, 199 Ga. App. 130, 404 S.E.2d 446 (1991); Giles v. Evans, 199 Ga. App. 616, 405 S.E.2d 511 (1991); Washington v. Department of Human Resources, 759 F. Supp. 825 (M.D. Ga. 1991); Talbot State Bank v. City of Columbus, 261 Ga. 850, 413 S.E.2d 194 (1992); Davis v. Great W. Bank, 809 F. Supp. 96 (N.D. Ga. 1992); Block v. Woodbury, 211 Ga. App. 184, 438 S.E.2d 413 (1993); Pruett v. Commercial Bank, 211 Ga. App. 692, 440 S.E.2d 85 (1994); Sorrells Constr. Co. v. Chandler Armentrout & Roebuck, 214 Ga. App. 193, 447 S.E.2d 101 (1994); Austin v. Coca-Cola Co., 217 Ga. App. 621, 458 S.E.2d 409 (1995); Judkins v. State, 218 Ga. App. 767, 463 S.E.2d 362 (1995); Centrust Mtg. Corp. v. Smith & Jenkins, 220 Ga. App. 394, 469 S.E.2d 466 (1996); DOT v. Hall, 221 Ga. App. 178, 470 S.E.2d 775 (1996); Khamis Enterprises, Inc. v. Boone, 224 Ga. App. 348, 480 S.E.2d 364 (1997); Danzell v. Cannon, 224 Ga. App. 602, 481 S.E.2d 588 (1997); Mobley v. Sewell, 226 Ga. App. 866, 487 S.E.2d 398 (1997); Bradley v. Georgia Inst. of Technology, 228 Ga. App. 216, 491 S.E.2d 453 (1997); Allen v. King Plow Co., 227 Ga. App. 795, 490 S.E.2d 457 (1997); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998); Birdsong v. Enforcer Prods., Inc., 235 Ga. App. 132, 508 S.E.2d 769 (1998); Gibson v. Decatur Fed. Sav. & Loan Ass'n, 235 Ga. App. 160, 508 S.E.2d 788 (1998); Bellamy v. Sunflower Properties, Inc., 240 Ga. App. 647, 523 S.E.2d 659 (1999); Smith v. Airtouch Cellular of Ga., Inc., 244 Ga. App. 71, 534 S.E.2d 832 (2000); Roth v. Gulf Atl. Media of Ga., Inc., 244 Ga. App. 677, 536 S.E.2d 577 (2000); Coleman v. Grimes, 250 Ga. App. 880, 553 S.E.2d 185 (2001); Benedict v. Snead, 253 Ga. App. 749, 560 S.E.2d 278 (2002); Dalton Paving & Constr., Inc. v. South Green Constr. of Ga., Inc., 284 Ga. App. 506, 643 S.E.2d 754 (2007); Walker v. Walker, 293 Ga. App. 872, 668 S.E.2d 330 (2008); QoS Networks Ltd. v. Warburg Pincus & Co., 294 Ga. App. 528, 669 S.E.2d 536 (2008); Akridge v. Silva, 298 Ga. App. 862, 681 S.E.2d 667 (2009); Jones v. Unified Gov't of Athens-Clarke County, 312 Ga. App. 214, 718 S.E.2d 74 (2011); Rimmer v. Tinch, 324 Ga. App. 65, 749 S.E.2d 236 (2013); Sentinel Offender Svcs., LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014); Cheeley Invs., L.P. v. Zambetti, 332 Ga. App. 115, 770 S.E.2d 350 (2015), cert. denied, No. S15C1298, 2015 Ga. LEXIS 615 (Ga. 2015).

Effect on one not a party to the proceeding.

- Judgment is not conclusive as to one who was not a party to the proceeding in which the judgment was rendered, nor as to one over whom the court acquired no jurisdiction, even though the latter may be named as a party defendant in the proceeding. Colodny v. Krause, 141 Ga. App. 134, 232 S.E.2d 597, cert. denied, 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177 (1977).

Personal judgment cannot be obtained against a person who is not named as a party defendant and properly served in the action. Colodny v. Krause, 141 Ga. App. 134, 232 S.E.2d 597, cert. denied, 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177 (1977).

Issues in a second suit are concluded as between parties and their privies if they were made in the first suit or if, under the rules of pleading and evidence, they could have been put in issue. Roadway Express, Inc. v. McBroom, 61 Ga. App. 223, 6 S.E.2d 460 (1939).

Who constitutes a "party".

- Parties are all such persons as were directly interested in the subject matter, had a right to make a defense, to adduce testimony, to cross-examine witnesses, to control the proceedings, and to appeal the judgment; privies are all persons who are represented by the parties and claim under the parties, all who are in privity with the parties, the term privity denoting mutual or successive relationship to the same rights of property. Roberts v. Hill, 81 Ga. App. 185, 58 S.E.2d 465 (1950); Walka Mt. Camp, No. 565, Woodmen of World, Inc. v. Hartford Accident & Indem. Co., 222 Ga. 249, 149 S.E.2d 365 (1966).

Since an industrial authority was an instrumentality of a city, or an "agent" created by legislative enactment, that which was res judicata as to the authority was res judicata as to the city. City of Macon v. Pasco Bldg. Sys., 191 Ga. App. 48, 380 S.E.2d 718, cert. denied, 493 U.S. 824, 110 S. Ct. 85, 107 L. Ed. 2d 50 (1989).

Debtor's transfer of real property to the debtor's wife, a default judgment in a lawsuit, which the trustee claimed rendered the debtor insolvent, in which the wife did not participate and which was filed after the transfer did not prove the debtor's insolvency at the time of the transfer for purposes of former O.C.G.A. § 18-2-22(3); the wife's status as the debtor's wife, standing alone, did not establish privity with the debtor, and the judgment against the debtor did not bind the wife. Thurmond v. Turner (In re Turner), Bankr. (Bankr. N.D. Ga. Sept. 19, 2006).

Parties includes privies. Roberts v. Hill, 81 Ga. App. 185, 58 S.E.2d 465 (1950); Cincinnati, N.O. & T. Pac. Ry. v. Hilley, 118 Ga. App. 293, 163 S.E.2d 438 (1968).

Reason for rule.

- Reason that verdicts and judgments bind conclusively parties and privies only is because privies in blood, privies in estate, and privies in law claim under the party against whom the judgment is rendered; and they claiming those rights are, of course, bound as the original is; but as to all others, judgments are not conclusively binding, because it is unjust to bind one by any proceeding in which one had no opportunity to make a defense, to offer evidence, to cross-examine witnesses, or to appeal, if one was dissatisfied with the judgment. Blakewood v. Yellow Cab Co., 61 Ga. App. 149, 6 S.E.2d 126 (1939).

Successor to predecessor in title connotes privity.

- Party has been held to be in privity with a party to the former litigation when the party bears the relationship of successor to a predecessor in title, a cestui que trust to a trustee or quasi-trustee, a beneficiary in estate to an administrator, a principal to an agent or agent to a principal, a city to the city's treasurer; and in class actions, when a party is one of a group of municipal taxpayers or citizens in whose behalf expressly or by necessary implication the former suit was brought by a taxpayer or property owner "upon a matter of public and general interest to all other taxpayers of such political subdivision." College Park Land Co. v. Mayor of College Park, 48 Ga. App. 528, 173 S.E. 239 (1934).

Test of privity is to determine whether one has privity with another, not whether the other has privity with the one, and then assume that such privity is reciprocal. Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975).

General meaning of privies includes those who claim under or in right of parties. Blakewood v. Yellow Cab Co., 61 Ga. App. 149, 6 S.E.2d 126 (1939).

Husband-wife relationship.

- If both the husband and wife are still alive, that relationship alone does not make them privies within the meaning of this section. Russ Transp., Inc. v. Jones, 104 Ga. App. 612, 122 S.E.2d 282 (1961).

Attorney's lien in divorce case.

- Former spouse's action to remove an attorney's lien under O.C.G.A. § 15-19-14 was barred by collateral estoppel under O.C.G.A. § 9-12-40. The issue of the lien had been fully litigated and decided in a divorce action in which the attorney represented the other spouse, and for purposes of recovering on the lien, the attorney was the other spouse's privy. Ruth v. Herrmann, 291 Ga. App. 399, 662 S.E.2d 726 (2008).

In a former client's suit seeking to remove an attorney's lien obtained against the former's clients marital property, a trial court properly granted summary judgment to the attorney since the propriety of the lien had already been litigated in the divorce action and the former client never appealed or challenged that judgment and an emergency motion to have the lien removed was denied. Ruth v. Herrmann, 291 Ga. App. 399, 662 S.E.2d 726 (May 2, 2008).

Those represented by a trustee are bound by a judgment against the trustee as such, although they were not parties to the proceeding in which the judgment was rendered. Rushing v. Sikes, 175 Ga. 124, 165 S.E. 89 (1932).

Effect on third persons.

- Judgment of a court of competent jurisdiction is not conclusive as to third persons. McDonald v. Wimpy, 204 Ga. 617, 50 S.E.2d 347 (1948).

Third-party actions are viewed as separate and independent lawsuits. Fierer v. Ashe, 147 Ga. App. 446, 249 S.E.2d 270 (1978); Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981).

Final judgments between the parties in one third-party action have been held to bar a subsequent third-party action between the same parties. A judgment adjudicating a claim between a third-party plaintiff and a third-party defendant is conclusive to the same extent as though rendered in independent litigation between them. Fierer v. Ashe, 147 Ga. App. 446, 249 S.E.2d 270 (1978); Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981).

Separate contracts between same parties.

- O.C.G.A. § 9-12-40 does not bar subsequent litigation on a separate contract between the same parties even though the latter claim could have been joined as an independent claim in a prior action. Nationwide-Penncraft, Inc. v. Royal Globe Ins. Co., 249 Ga. 687, 294 S.E.2d 529 (1982).

Individual in privity with corporation.

- Individual claiming a legal interest in the subject matter of a contract between corporations had a mutual or successive relationship to the same rights of property as one of the contracting corporations and was therefore in privity with the corporation so as to bar the individual's claim on the contract on the grounds of res judicata. Donalson v. Coca-Cola Co., 164 Ga. App. 712, 298 S.E.2d 25 (1982).

Different but associated parties.

- Res judicata did not operate to bar an action to collect for shipments claimed in a prior suit against a company closely associated with the defendant company although the defendant's liability was derivative because there was no benefit of a judgment in favor of the company from which the defendant's liability derived and because the earlier judgment had not been satisfied. National Carloading Corp. v. Security Van Lines, 164 Ga. App. 850, 297 S.E.2d 740 (1982).

State and administrator of estate.

- Punitive damages served a public interest and were intended to protect the general public, and when the state sought punitive damages in a prior suit the state did so as parens patriae, representing the interests of all Georgia citizens, including an administrator of a decedent's estate; the state and the administrator were privies in that prior case and, pursuant to res judicata, a release executed as part of a settlement of that prior case barred punitive damages in a later case brought by the administrator alleging the same products liability theory. Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 627 S.E.2d 549 (2006).

Proceedings quasi in rem are brought to establish status, and not to set up rights in or title to property; and judgments in such proceedings are not conclusive against third persons as to their rights in, or title to, property when the third parties have no notice or opportunity to assert their rights. Elliott v. Adams, 173 Ga. 312, 160 S.E. 336 (1931).

Subsequent action by party to former action.

- While an adjudication of the same subject matter in issue in a former suit between the same parties by a court of competent jurisdiction is an end of litigation, the plaintiff is not estopped by the judgment rendered in the court of ordinary (now probate court) in a proceeding to which the plaintiff was not a party, although the plaintiff appeared as a witness therein. McAfee v. Martin, 211 Ga. 14, 83 S.E.2d 605 (1954).

Defendants in privity with defendants in prior suit.

- In a suit for professional negligence in preparing a title examination and abstract, the trial court properly granted the defendants summary judgment because the action was barred by the doctrine of collateral estoppel as a previous suit adjudicated the plaintiff's professional negligence claims, defendants were in privity with the abstract preparer sued in the previous action, and the prior suit was adjudicated on the merits ending in a dismissal. ALR Oglethorpe, LLC v. Henderson, 336 Ga. App. 739, 783 S.E.2d 187 (2016).

Two voluntary dismissals barred third action despite additional plaintiffs.

- Trial court correctly dismissed a shipyard owner's third civil action arising from the same set of facts under the two-dismissal rule of O.C.G.A. § 9-11-41(a)(1) and (a)(3) and the res judicata rule of O.C.G.A. § 9-12-40 because, although there were additional plaintiffs in the third action, each of the three actions was based on the apparently complex initial financing for, and subsequent failure of, the shipyard. Global Ship Sys., LLC v. RiverHawk Group, LLC, 334 Ga. App. 860, 780 S.E.2d 697 (2015), cert. denied, No. S16C0508, 2016 Ga. LEXIS 231 (Ga. 2016).

Presentation of claims against partners.

- It was the duty of the plaintiff to put all claims the plaintiff had against any of the plaintiff's partners or to any portion of the partnership funds before the court for adjudication, knowing that a judgment is conclusive between the same parties and their privies as to all matters put in issue, or which under rules of law might have been put in issue in the cause wherein judgment was rendered. Camp v. Lindsay, 176 Ga. 438, 168 S.E. 284 (1933).

Phrase "same parties" interpreted.

- While the phrase "same parties" does not mean that all of the parties on the respective sides of the litigation in the two cases shall have been identical, it does mean that those who invoke the defense and against whom the defense is invoked must be the same. A.R. Hudson Realty, Inc. v. Hood, 151 Ga. App. 778, 262 S.E.2d 189 (1979), overruled on other grounds, Merrill Lynch v. Zimmerman, 248 Ga. 580, 285 S.E.2d 181 (1981).

Verdicts and judgments rendered by consent of counsel in good faith and without any fraud or violation of express instructions given by the client to the attorney and known to the adverse party or that party's attorney are binding upon the client, the consent of counsel being in law the consent of the parties the attorneys represent. Phoenix Properties of Atlanta, Inc. v. Umstead, 245 Ga. 172, 264 S.E.2d 8 (1980).

Decree in a court of equity is conclusive on all questions raised or which could have been raised, relating to the subject matter affected by such decree, and the same will be a good cause of bar of an action subsequently brought between the same parties upon the same subject matter in a court of competent jurisdiction. Crawford v. Baker, 86 Ga. App. 855, 72 S.E.2d 790 (1952).

Parties were in sufficiently adversarial relationship in prior action to invoke the doctrine of res judicata since: (1) the defendant was a third-party defendant in the prior action, which was also commenced by the plaintiff, and filed a response to the complaint and a counterclaim against the plaintiff; and (2) the plaintiff could have asserted a claim against the defendant in the prior action, but elected not to do so. Fedeli v. UAPA Ag. Chem., Inc., 237 Ga. App. 337, 514 S.E.2d 684 (1999).

Tort action brought after exceptions to condemnation filed.

- When a limited liability company brought a tort action against a county industrial development authority after filing an exception to a special master's award in a condemnation proceeding, the trial court properly dismissed the tort action under O.C.G.A. §§ 9-2-5(a) and9-12-40. In both the condemnation action and the tort action, the company sought a monetary award on the ground that the condemnation rendered its contract a nullity and that the condemnation action was brought in bad faith. Coastal Water & Sewerage Co. v. Effingham County Indus. Dev. Auth., 288 Ga. App. 422, 654 S.E.2d 236 (2007).

Editor's notes.

- O.C.G.A. § 9-11-60(h) abolishes the law of the case rule, generally, although providing that judgments and orders shall not be set aside or modified without just cause, and that rulings in the appellate courts shall be binding in subsequent proceedings in that case.

Decision by the Supreme Court is controlling upon the judge of the trial court, as well as upon the Supreme Court when the case reaches that court a second time. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case, even though the ruling has been disapproved by the Supreme Court in a case decided before the second appearance of the case in that court. Walden v. Nichols, 204 Ga. 532, 50 S.E.2d 105 (1948).

Function of law of case rule when judgment reversed.

- When a case is brought to the Court of Appeals and the judgment of the trial court is reversed, all questions as to pleadings and the effect of evidence adjudicated by the court are binding as the law of the case on that court and, on a second trial of the case, on the court below, unless additional pleadings and evidence prevail to change such adjudications. Parker v. State, 76 Ga. App. 238, 45 S.E.2d 692 (1947).

Effect of failure to take exception.

- When a petition seeks both legal and equitable relief, and the legal prayers are meritorious and the equitable prayers are not, it is error to dismiss the whole action on the ground that the petition sets forth no cause of action, for the equitable relief should be stricken, leaving a cause of action for legal relief. Under this principle, the plaintiff, in a prior action, should have excepted to the court's dismissal of the whole action. Having failed to so except, that judgment became the law of the case, to the effect that the petition alleged neither an equitable nor a legal cause of action, and constitutes a bar to the present action for the legal relief only. Zeagler v. Zeagler, 192 Ga. 453, 15 S.E.2d 478 (1941); Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952); Ferrell v. Bell, 90 Ga. App. 573, 83 S.E.2d 616 (1954); Atlanta Newspapers, Inc. v. Tyler, 104 Ga. App. 707, 122 S.E.2d 591 (1961).

Judgment of a trial court, which after a writ of error stands unreversed, or to which no exception has been taken, is the law of the case. Ballard v. Harmon, 202 Ga. 603, 44 S.E.2d 260 (1947); Poore v. Rigsby, 207 Ga. 238, 60 S.E.2d 239 (1950); Oliver v. Central of Ga. Ry., 210 Ga. 597, 81 S.E.2d 793 (1954); Seymour v. State, 210 Ga. 571, 81 S.E.2d 808 (1954).

Use of motion for new trial to correct error in court's judgment.

- If a plaintiff in error relies on a so-called extraordinary motion for new trial as a proper procedure to vacate and set aside existing judgments, the plaintiff is confronted with the rule that a motion for new trial is not the proper remedy to correct an alleged error in any judgment or decree entered by a trial court and the plaintiff's motion will be denied. Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833 (1938); Ballard v. Harmon, 202 Ga. 603, 44 S.E.2d 260 (1947).

Finding conclusive.

- Trial court at a hearing to modify child support erred in relying on the father's tax returns showing his income around the time the father and mother divorced, which supported his argument that his income had not changed much in the five years between entry of the divorce decree and the mother's filing of her petition to modify child support, as the trial court's determination at the time the divorce decree was filed that the father was making considerably less than what his tax return evidence showed was conclusive on the issue of what the father's income was at the time of the divorce, especially since that figure had not been reversed or set aside since it was entered. Hulett v. Sutherland, 276 Ga. 596, 581 S.E.2d 11 (2003).

Relation to common-law rule.

- In this state, the common-law rule that res adjudicata does not extend to the trial of habeas corpus proceedings is not of force and such proceedings are subject to the provisions of this section. Mitchem v. Balkcom, 219 Ga. 47, 131 S.E.2d 562 (1963); Balkcom v. Townsend, 219 Ga. 708, 135 S.E.2d 399, cert. denied, 377 U.S. 1009, 84 S. Ct. 1939, 12 L. Ed. 2d 1055 (1964).

O.C.G.A. § 9-12-40 is a codification of Georgia's common-law rule of res judicata. Lawson v. Watkins, 261 Ga. 147, 401 S.E.2d 719 (1991).

O.C.G.A. §§ 9-12-40 and9-12-42 set out the basic principles of res judicata in Georgia. Norris v. Atlanta & W.P.R.R., 254 Ga. 684, 333 S.E.2d 835 (1985).

Georgia does not unswervingly adhere to a rule of mutuality as it relates to res judicata. Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975).

Purpose of rule.

- Res judicata is designed to foreclose collateral attack and to insure the integrity of judgments rendered by courts of competent jurisdiction. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974).

Appellate review not prerequisite for judgment to act as bar to later action.

- O.C.G.A. § 9-12-40 does not require appellate review of a judgment before the statute can act as a bar to a later action and, therefore, because the superior court in the certiorari action had adjudicated the dispute, all the prerequisites for res judicata were met, and the action was barred. McCracken v. City of College Park, 259 Ga. 490, 384 S.E.2d 648 (1989), cert. denied, 494 U.S. 1028, 110 S. Ct. 1475, 108 L. Ed. 2d 612 (1990).

Record on appeal incomplete.

- Trial court's order granting summary judgment to a former wife on claims by a former husband and his corporate entities that the wife stole funds in 2006 was vacated and remanded for the trial court to consider the issue of res judicata in the first instance because the claims were not actually litigated and determined in the prior contempt action, and the record on appeal was incomplete with regard to those claims; while the final judgment and decree of divorce indicated that the settlement agreement between the wife and husband addressed the division of property, the copy of the settlement agreement included in the record on appeal as part of the parties' record appendix was missing the second page, which apparently contained the property-related provisions, and it was unclear from the record whether the trial court, in resolving the wife's motion for summary judgment, had a complete copy of the settlement agreement before the court or was likewise missing the second page. Ga. Neurology & Rehab., P.C. v. Hiller, 310 Ga. App. 202, 712 S.E.2d 611 (2011).

Unappealed matter in debtor-creditor case.

- Unappealed order denying the debtor's motion to set aside a default judgment was res judicata as to the debtor and creditor in a subsequent garnishment proceeding. Halkirk Cos. v. Dirt Busters, Inc., 190 Ga. App. 460, 379 S.E.2d 173, cert. denied, 190 Ga. App. 897, 379 S.E.2d 173 (1989).

Res judicata is to be applied only when the cause of action is the same. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940); Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967).

Identity of cause of action.

- When the plaintiff sought to recover various amounts allegedly due under the lease between the parties including unpaid rent, property taxes, insurance premiums, and amounts for construction change orders, but each of these items constituted amounts for which the plaintiff could have obtained judgment in a prior dispossessory action, there was an identity of cause of action between the two cases. Atlanta J's, Inc. v. Houston Foods, Inc., 237 Ga. App. 415, 514 S.E.2d 216 (1999).

After the appeals court found that both the magistrate action and the action on appeal concerned a condominium association's failure to maintain the condominium complex in accordance with its bylaws and standards, and a claim for injunctive relief, because any related claim for injunctive relief later filed against the association could have been asserted before the magistrate, res judicata applied to the related claim, and the fact that the magistrate court lacked subject matter jurisdiction to provide equitable relief was immaterial. Green v. Bd. of Dirs. of Park Cliff Unit Owners Ass'n, 279 Ga. App. 567, 631 S.E.2d 769 (2006).

Trial court erred in granting summary judgment on the basis of res judicata as to the plaintiff's claim of constructive discharge under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4, because the doctrine of res judicata did not apply as there was not an identity of causes of action in both the federal and Georgia cases. Rintoul v. Tolbert, 341 Ga. App. 688, 802 S.E.2d 56 (2017).

Adjudication on the merits.

- As the plaintiff clearly could have pursued a claim for past due rents and other amounts due under the lease between the parties in a prior dispossessory action, but elected not to do so, the final judgment of the magistrate court in the prior action operated as an adjudication on the merits of such claim for purposes of res judicata. Atlanta J's, Inc. v. Houston Foods, Inc., 237 Ga. App. 415, 514 S.E.2d 216 (1999).

Because a commercial landlord had dismissed its prior dispossession action against a tenant upon payment by the tenant pursuant to a settlement of the amount due and owing and such dismissal did not indicate that it was with prejudice, it was deemed without prejudice and was accordingly not an adjudication on the merits pursuant to O.C.G.A. § 9-11-41(b); accordingly, it was error for the trial court to have barred the landlord's claim for common area maintenance charges in the landlord's second action on the ground of res judicata as the requirement of a previous adjudication on the merits of the claim was not met pursuant to O.C.G.A. § 9-12-40. Rafizadeh v. KR Snellville, LLC, 280 Ga. App. 613, 634 S.E.2d 406 (2006).

Dismissal of a complaint for want of prosecution was not an adjudication on the merits; thus, collateral estoppel and res judicata did not bar a subsequent complaint. Valdez v. R. Constr., Inc., 285 Ga. App. 373, 646 S.E.2d 329 (2007).

Because a prior order entered in a suit between a payor and a payee was a final adjudication of the payee's quantum meruit claim, and the payee did not appeal from that aspect of the order, that order acted as res judicata and could not be raised again in the instant suit. ChoicePoint Servs. v. Hiers, 284 Ga. App. 640, 644 S.E.2d 456 (2007), cert. denied, No. S07C1166, 2007 Ga. LEXIS 499 (Ga. 2007).

In an action by a client against the client's former attorney, the client was estopped by res judicata from seeking further judicial review of a 2005 order; the client filed an application for discretionary review of the 2005 order, which the Supreme Court of Georgia denied on its merits. Hook v. Bergen, 286 Ga. App. 258, 649 S.E.2d 313 (2007), cert. denied, 2007 Ga. LEXIS 697 (Ga. 2007).

Trial court did not err in entering summary judgment in favor of a grantor's grandsons in an action filed by the grantor's wife, daughter, and granddaughter challenging the validity of a quitclaim deed because res judicata compelled summary judgment on the counts alleging cloud on title, undue influence, and mistake of fact since there was an identity of the parties, and a decision of the court of appeals in a prior appeal upholding the trial court's grant of summary judgment constituted an adjudication on the merits; the causes of action raised in the amended complaint were matters put in issue or which under the rules of law could have been put in issue in the original complaint. Smith v. Lockridge, 288 Ga. 180, 702 S.E.2d 858 (2010).

Because the counterclaim-plaintiffs in the second-dismissed case were not plaintiffs in the first-dismissed case, the second dismissal did not operate as an adjudication upon the merits under O.C.G.A. § 9-11-41(a)(3). Consequently, O.C.G.A. § 9-12-40 did not preclude the instant action, and the trial court erred in dismissing the action on that ground. Dillard Land Invs., LLC v. S. Fla. Invs., LLC, 320 Ga. App. 209, 739 S.E.2d 696 (2013).

Drug store's voluntary dismissal of the store's inverse condemnation suit with prejudice barred the store's damages claim against a state agency in a direct condemnation action based on res judicata and the purported mistake of dismissing with prejudice was not subject to correction under O.C.G.A. § 9-11-60. DOT v. Revco Disc. Drug Ctrs., Inc., 322 Ga. App. 873, 746 S.E.2d 631 (2013).

Opportunity to litigate issues in prior suit.

- Plaintiff's action, seeking to litigate whether the defendant had valid title to property from a tax sale, was not barred by res judicata because under O.C.G.A. § 44-7-9 the plaintiff did not have the opportunity in the prior dispossessory proceeding in magistrate court to litigate title issues. Myers v. North Ga. Title & Tax Free Exchange, LLC, 241 Ga. App. 379, 527 S.E.2d 212 (1999).

Brokerage service account owner's assignee's claims against the service that it had unlawfully allowed disbursement of the funds in the account, pursuant to a garnishment judgment, after the owner had sought to close the account, were barred by res judicata under O.C.G.A. § 9-12-40 since it was noted that the owner had filed a traverse in the garnishment proceeding and, accordingly, the owner could have raised the same issues at that time, pursuant to O.C.G.A. § 18-4-93. The owner, as the debtor in the garnishment proceeding, was required to assert any claim that the owner's right to the funds was superior to that of the judgment creditor, pursuant to O.C.G.A. § 18-4-95. Lamb v. First Union Brokerage Servs., 263 Ga. App. 733, 589 S.E.2d 300 (2003).

Buyer had no separate right to counterclaims which the buyer had asserted in a prior suit since the buyer had filed bankruptcy since the time the counterclaims were asserted; the counterclaims thus belonged to the buyer's bankruptcy estate and so the bankruptcy trustee was authorized to dismiss them; res judicata barred the buyer from asserting the same claims in a later suit based on the dismissal of the counterclaims in the prior suit by the bankruptcy trustee. Lee v. Owenby & Assocs., 279 Ga. App. 446, 631 S.E.2d 478 (2006).

Superior court properly upheld a second ALJ's ruling that an employer was foreclosed from raising a claim for a credit for 20 weeks of wages already paid to the claimant, under O.C.G.A. § 34-9-243, as the employer was entitled to raise the issue no later than ten days prior to the original compensation hearing, and that issue could and should have been adjudicated, but was not, making the issue res judicata. Vought Aircraft Indus. v. Faulds, 281 Ga. App. 338, 636 S.E.2d 75 (2006).

Claim by a company for fraud against a debtor brought for the first time in an adversary proceeding was barred by the doctrine of res judicata because the claim could have been brought in an earlier district court proceeding involving the same parties and the same facts. Omega Cotton Co. v. Sutton (In re Sutton), Bankr. (Bankr. M.D. Ga. Oct. 2, 2008).

Doctrine of res judicata, O.C.G.A. § 9-12-40, did not preclude a wife from bringing an action for damages based on her former husband's breach of a settlement agreement that had been incorporated into a court order because such a claim was separate and apart from a contempt action she brought based on his violation of the order. Jacob-Hopkins v. Jacob, 304 Ga. App. 604, 697 S.E.2d 284 (2010).

In a dispute between members of a car wash LLC, a member's action was not barred by res judicata because the instant case's issues against the managing member were arguable breaches of the managerial duties as established in a settlement agreement arising from a lender's earlier action; because the first member could not have put these matters at issue in their cross-claims in the lender's action, they were not barred from raising the matters in this action. McCabe v. Rainey, 343 Ga. App. 480, 806 S.E.2d 867 (2017).

How to raise res judicata question.

- Question of res judicata must be raised by a plea to that effect and cannot be raised by demurrer (now motion to dismiss) when the facts do not appear in the petition. Owens v. Williams, 87 Ga. App. 238, 73 S.E.2d 512 (1952).

Certified copies of record portions are required for proof of res judicata. Mayer v. Wylie, 229 Ga. App. 282, 494 S.E.2d 60 (1997).

Under res judicata, a proper court's judgment is conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment is reversed or set aside. Camp v. Lindsay, 176 Ga. 438, 168 S.E. 284 (1933); Scarborough v. Edgar, 176 Ga. 574, 168 S.E. 592 (1933), overruled on other grounds, Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894 (1939); Miles v. Johnson, 193 Ga. 492, 18 S.E.2d 831 (1942); Hubbard v. Whatley, 200 Ga. 751, 38 S.E.2d 738 (1946); C. Schomburg & Son v. Schaefer, 218 Ga. 659, 129 S.E.2d 854 (1963); Booker v. Booker, 107 Ga. App. 339, 130 S.E.2d 260 (1963); Williams v. Metropolitan Home Imp. Co., 110 Ga. App. 770, 140 S.E.2d 56 (1964); Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974). Patrick v. Simon, 237 Ga. 742, 229 S.E.2d 746 (1976).

Requirement that court have competent jurisdiction.

- It is fundamental that the legal liability of one person to another person can be ascertained only in an action brought against such person by the other in a court of competent jurisdiction. Colodny v. Krause, 141 Ga. App. 134, 232 S.E.2d 597, cert. denied, 434 U.S. 892, 98 S. Ct. 267, 54 L. Ed. 2d 177 (1977).

Identity of parties.

- It is not required that all the parties in the two cases shall have been identical, but it is sufficient as to identity of parties if those by and against whom the defense of res judicata is invoked in the latter case were real parties at interest or privies as to the controversy in the former case. Darling Stores Corp. v. Beatus, 199 Ga. 215, 33 S.E.2d 701 (1945); Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 458 S.E.2d 826 (1995).

Trial court erred in granting a limited liability company summary judgment in the company's ejectment action against a property owner on the ground of res judicata under O.C.G.A. § 9-12-40 because there remained a question of fact regarding whether the owner was a party to the prior action; the owner asserted and presented affidavit evidence supporting the claim that the trial court in the quiet title action lacked personal jurisdiction over the owner, thus creating a genuine issue of material fact regarding whether the owner was a party to the earlier litigation. James v. Intown Ventures, LLC, 290 Ga. 813, 725 S.E.2d 213 (2012).

No privity between plaintiffs.

- In a suit brought by the plaintiff alleging a violation of the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., the trial court erred in finding that the doctrine of res judicata barred the plaintiff's action because there was no privity between the plaintiffs in the prior lawsuit and the current action. Sampson v. Ga. Dep't of Juvenile Justice, 328 Ga. App. 733, 760 S.E.2d 203 (2014).

To prove a res judicata defense, a litigant need introduce only those parts of the record of the prior proceeding which are necessary to prove the defense. Boozer v. Higdon, 252 Ga. 276, 313 S.E.2d 100 (1984); Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 458 S.E.2d 826 (1995).

Application of doctrine of res judicata may benefit plaintiff; if, for instance, the unsuccessful defendant in the prior suit wants to contest liability upon the judgment there rendered, and the plaintiff sets up the doctrine of res judicata and the conclusiveness of the judgment. Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981).

Interest on child support arrearages.

- When the issue of interest on past due child support was not put in issue and decided in a prior contempt proceeding related to a father's failure to pay child support, res judicata did not bar a subsequent judgment for interest on the past due child support amounts; it is undisputed that O.C.G.A. § 7-4-12.1 applies retroactively. Dial v. Adkins, 265 Ga. App. 650, 595 S.E.2d 332 (2004).

Issues which could have been litigated in first suit barred.

- Georgia law of res judicata bars a second suit between the same parties involving not only those issues that were actually litigated, but in addition all issues which could have been litigated in the first suit between the parties. Wilson v. Auto-Owners Ins. Co., 791 F.2d 886 (11th Cir. 1986).

Subject matter not identical in bank's action to recover.

- Res judicata did not bar a bank's action against guarantors to recover the outstanding balances owed on promissory notes a development company executed because the subject matters in the bank's action and an action condominium owners filed against the company and the bank, which filed a third-party-complaint against the guarantors, were not identical; the owners' action concerned the company's breach of the company's obligations under mortgage documents, which triggered the guarantors' obligation to indemnify the bank for the cost of the litigation, and the bank's action concerned the guarantors' breach of their contractual obligation to repay the company's debt. Baxter v. Fairfield Fin. Servs., 307 Ga. App. 286, 704 S.E.2d 423 (2010).

Claim for wrongful foreclosure was logically related to out-of-state action to collect on the same note, it was incumbent upon the plaintiff to file the plaintiff's compulsory counterclaim in that court, and the plaintiff's failure to do so precluded the plaintiff from attempting to recover in Georgia, the plaintiff's claim correctly being determined by the trial court to be barred by res judicata. Willis v. National Mtg. Co., 235 Ga. App. 544, 509 S.E.2d 403 (1998).

Res judicata barred subsequent suit against bank.

- Trial court properly granted the bank's motion to dismiss the plaintiffs' breach of contract and wrongful foreclosure claims under O.C.G.A. § 9-11-12(b)(6) because the plaintiffs' previous litigation against the bank could have included the plaintiffs' new claims and, thus, were barred by the doctrine of res judicata. Harris v. Deutsche Bank Nat'l Trust Co., 338 Ga. App. 838, 792 S.E.2d 111 (2016).

Different legal theory to recover for same wrong not permitted.

- Doctrine of res judicata will not permit one who first sought, unsuccessfully, to recover for a wrong under a contractual theory to later seek to employ a tort theory to recover for that same wrong. Garrett v. Transus, Inc., 177 Ga. App. 844, 341 S.E.2d 494 (1986); Helmuth v. Life Ins. Co., 391 Ga. App. 574, 391 S.E.2d 412 (1990); Garrett v. Life Ins. Co., 221 Ga. App. 315, 471 S.E.2d 262 (1996).

When victims of a fraudulent scheme who sued the perpetrator of the fraud under the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., had previously unsuccessfully sued the perpetrator for fraud and related claims, judgment n.o.v. was properly entered in favor of the perpetrator because the victims' claim was barred by res judicata and collateral estoppel as it should have been raised in their previous suits against the perpetrator which involved the same parties and the same subject matter. Austin v. Cohen, 268 Ga. App. 650, 602 S.E.2d 146 (2004).

Despite a payee's argument that a reformation claim could not have previously been filed because neither party foresaw that a contract claim could have been disposed of as it was, the argument was rejected as spurious, and because this argument ignored the fact that the payee filed a prior quantum meruit claim, which was predicated on the lack of an enforceable contract; hence, the payor obviously anticipated that the contract might not be entirely enforceable, and having done so, could have recognized the need to bring a reformation claim in the earlier action. ChoicePoint Servs. v. Hiers, 284 Ga. App. 640, 644 S.E.2d 456 (2007), cert. denied, No. S07C1166, 2007 Ga. LEXIS 499 (Ga. 2007).

In order for the doctrine of res judicata to apply, or for a party to take advantage of the doctrine in a subsequent suit brought against that party after the termination of the first, there are three prerequisites to which the situation must conform. They are: (1) identity of parties; (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction. All of these elements must concur. House v. Benton, 42 Ga. App. 97, 155 S.E. 47 (1930); Edwards v. Carlton, 98 Ga. App. 230, 105 S.E.2d 372 (1958); Lewis v. Price, 104 Ga. App. 473, 122 S.E.2d 129 (1961); Life & Cas. Ins. Co. v. Webb, 122 Ga. App. 344, 145 S.E.2d 63 (1965); Cincinnati, N.O. & T. Pac. Ry. v. Hilley, 118 Ga. App. 293, 163 S.E.2d 438 (1968); Lowe v. American Mach. & Foundry Co., 132 Ga. App. 572, 208 S.E.2d 585 (1974); Janelle v. Seaboard Coast Line R.R., 524 F.2d 1259 (5th Cir. 1975); Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980); Barnes v. City of Atlanta, 186 Ga. App. 187, 366 S.E.2d 822 (1988); Crowe v. Congress Fin. Corp., 196 Ga. App. 36, 395 S.E.2d 321 (1990); Akin v. PAFEC Ltd., 991 F.2d 1550 (11th Cir. 1993).

In order for the principles of res judicata to apply so as to bind a plaintiff as to any theory of the plaintiff's claim, the cause of action in both cases must be the same. Greyhound Lines v. Cobb County, 523 F. Supp. 422 (N.D. Ga. 1981), aff 'd, 681 F.2d 1327 (11th Cir. 1982).

One must assert all claims for relief concerning the same subject matter in one lawsuit, and any claims for relief concerning that same subject matter which are not raised will be res judicata pursuant to O.C.G.A. § 9-12-40. Lawson v. Watkins, 261 Ga. 147, 401 S.E.2d 719 (1991); Norman v. Farm Fans, Inc., 203 Ga. App. 97, 416 S.E.2d 374 (1992).

Action under Quiet Title Act barred additional action.

- Trial court did not err in ruling that a church's prior quia timet action under the Quiet Title Act, O.C.G.A. § 23-3-60 et seq., barred an heir's action against the church seeking title to the property because the prior action settled the church's ownership interest in the property. Cartwright v. First Baptist Church of Keysville, Inc., 316 Ga. App. 299, 728 S.E.2d 893 (2012).

Applicable to habeas courts.

- Principle of res judicata contained in O.C.G.A. § 9-12-40 applies to the rulings and findings of habeas courts. Martin v. State, 228 Ga. App. 548, 492 S.E.2d 307 (1997).

Judgment of the trial court denying the defendant's motion for new trial and the court's conclusion that affidavits were not newly discovered evidence but were cumulative of evidence presented at trial and the amended motion for new trial was res judicata and binding on the habeas court. Walker v. Penn, 271 Ga. 609, 523 S.E.2d 325 (1999).

Effect of new factual allegations.

- Doctrine of res judicata will bar an action even if some new factual allegations have been made. Williams v. Summit Psychiatric Ctrs., 185 Ga. App. 264, 363 S.E.2d 794 (1987), cert. denied, 185 Ga. App. 911, 363 S.E.2d 794 (1988).

Joinder of separate causes of action.

- Rules governing res judicata do not compel one to join separate causes of action in order to escape the penalties of that doctrine. In order for the principles of res judicata to apply so as to bind a plaintiff as to any theory of the plaintiff's claim whether invoked or not, the cause of action in both cases must be the same. Spence v. Erwin, 200 Ga. 672, 38 S.E.2d 394 (1946).

When a plaintiff has multiple dealings with a defendant, the law does not require that the plaintiff assert every separate claim for relief that the plaintiff may have against the defendant in one single lawsuit or risk losing the claim for relief forever, as would be the case if the joinder statute provided for mandatory rather than permissive joinder. Instead, the law requires that such a plaintiff must bring every claim for relief the plaintiff has concerning the same subject matter in one lawsuit. The plaintiff may join several claims for relief arising out of different subject matters in one lawsuit but the plaintiff is not required to do so and will not be penalized for making a strategic decision to the contrary. Lawson v. Watkins, 261 Ga. 147, 401 S.E.2d 719 (1991).

Theory of virtual representation.

- Doctrine of res judicata will not be applied on the theory of virtual representation when the original action is brought by a stranger to the subsequent action solely on the stranger's own behalf to protect the stranger's individual rights. Humthlett v. Reeves, 211 Ga. 210, 85 S.E.2d 25 (1954).

Presumptions as to judgments regular on judgments' face.

- When a judgment is regular on the judgment's face, the presumption is that there was sufficient evidence to authorize the judgment, and the judgment is conclusive as to the subject matter which it purports to decide until it is reversed or impeached for fraud; it cannot be attacked collaterally on account of any error or want of regularity in its exercise. Rowell v. Rowell, 214 Ga. 377, 105 S.E.2d 19 (1958).

Effect of irregular or erroneous judgment.

- When a court has jurisdiction, the court has a right to decide every question which occurs in the cause, and whether the court's decision is correct or otherwise, the court's judgment until reversed is regarded as binding in every other court. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946); Mitchell v. Arnall, 203 Ga. 384, 47 S.E.2d 258 (1948); Bentley v. Buice, 102 Ga. App. 101, 115 S.E.2d 706 (1960).

Judgment of a court of competent jurisdiction, however irregular or erroneous, is binding until set aside. Morgan v. Department of Offender Rehabilitation, 166 Ga. App. 611, 305 S.E.2d 130 (1983).

Irregular judgment defined.

- Irregular judgment is one that is entered contrary to the manner of practice and procedure allowed by law in some material respect; after jurisdiction is once attached, mere errors or irregularities in the proceedings, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void. Rowell v. Rowell, 214 Ga. 377, 105 S.E.2d 19 (1958).

When res judicata effect of issues cease.

- Issues which are made, or which under the rules of law could have been made in the cause, cease to be res judicata when the judgment therein rendered is set aside in a court of competent jurisdiction. Saliba v. Saliba, 202 Ga. 279, 42 S.E.2d 748 (1947).

Motion to revive original judgment.

- When a defendant is served, appears, and pleads in the original suit, a defendant cannot inquire into the merits of the original judgment on a writ to revive the judgment. It is not error to sustain a demurrer (now motion to dismiss) and strike the defendant's answer in such a proceeding. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946).

Offering in defense to scire facias evidence existing prior to judgment.

- On the general principle of res adjudicata, which applies equally to proceedings by scire facias as to any other action, and on the further ground that this method of reviving a judgment is merely a supplementary step in the original action, the defendant is absolutely precluded from going behind the judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment and might have been presented in the former proceeding. McRae v. Boykin, 73 Ga. App. 67, 35 S.E.2d 548 (1945), cert. denied, 328 U.S. 844, 66 S. Ct. 1024, 90 L. Ed. 1618 (1946).

State court's disposition of federal constitutional questions.

- State courts are competent to decide federal constitutional questions and a state court determination upon the merits of such issues is res judicata absent an appeal through the state appellate system and ultimately to the United States Supreme Court. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974).

State court's foreclosure of the constitutional issue is res judicata upon the merits of the substantive issue as well as the procedural question concerning the method of entry of judgment. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974).

In a 42 U.S.C. § 1983 case arising from a traffic accident in which a driver had previously filed a state case, a federal district court did not err by granting summary judgment on the driver's claims on the basis of res judicata under O.C.G.A. § 9-12-40. The state court had issued a decision on the merits of the driver's claims, the driver conceded that the state court was a court of competent jurisdiction that could have decided the § 1983 claims, and the driver's contention that a litigant was not required to assert federal claims in state court was without merit. Endsley v. City of Macon, F.3d (11th Cir. Nov. 20, 2008)(Unpublished).

Pendent state claim retained by federal court.

- If a federal court would have retained jurisdiction of a pendent state claim had the claim been raised, then a subsequent action in state court would be barred by res judicata. Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977); Hardy v. Georgia Baptist Health Care Sys., 239 Ga. App. 596, 521 S.E.2d 632 (1999).

Relationship of claims in state action to prior federal action.

- After a brokerage firm was found not guilty of violating the Securities Exchange Act of 1934 in a federal action, subsequent claims of negligence and breach of fiduciary duty brought in a state court are barred under O.C.G.A. § 9-12-40 as these claims ought to have been litigated in the federal action. NcNeal v. Paine, Webber, Jackson & Curtis, Inc., 249 Ga. 662, 293 S.E.2d 331 (1982).

Trial court did not err in granting summary judgment to a city in a police officer's suit on the basis that, pursuant to the doctrine of res judicata, a prior federal action by the police officer barred the police officer's claims regarding the city's failure to promote the police officer on two occasions in 2004 promotions; however, the police officer's claims based on the failure to promote in December 2005 and November 2006 were not barred by res judicata because the city did not meet the city's burden of affirmatively establishing that the police officer could have raised these claims, which were based on separate events, in the federal case. Thus, the trial court erred in granting summary judgment to the city as to the 2005 and 2006 promotions. Neely v. City of Riverdale, 298 Ga. App. 884, 681 S.E.2d 677 (2009), cert. denied, No. S09C1925, 2010 Ga. LEXIS 28 (Ga. 2010).

Rationale for not applying res judicata.

- When it does not apply the res judicata statute, the court must be convinced that the underlying purposes of the res judicata rule are advanced rather than defeated by not applying the rule. Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977).

State court must apply same rules used by federal court.

- When state claims which "could have been raised" in federal litigation would have been pendent had they been presented to the federal court, the state court, in applying its res judicata statute, will use the same rules that the federal court would have used in determining whether it would exercise pendent jurisdiction. Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977).

Attempt to relitigate federal court dismissal of federal statutory action.

- Federal district court's dismissal of a case with prejudice, on the grounds that a federal antidiscrimination statute cannot be applied against the states, is an adjudication on the merits, and not a jurisdictional disposition. Accordingly, the litigant is barred from relitigating the matter in state court. Similarly, a claim against the state alleging a violation of the federal civil rights statute, 42 U.S.C. § 1983, is barred by the doctrine of res judicata, because it could and should have been presented to the original federal court. Morgan v. Department of Offender Rehabilitation, 166 Ga. App. 611, 305 S.E.2d 130 (1983).

Using federal civil rights act to attack state judgments.

- Civil Rights Act, 42 U.S.C. §§ 1971 et seq., 1983, is not a vehicle for attack upon final state court judgments. Brown v. Georgia Power Co., 371 F. Supp. 543 (S.D. Ga. 1973), aff'd, 491 F.2d 117 (5th Cir.), cert. denied, 419 U.S. 838, 95 S. Ct. 66, 42 L. Ed. 2d 65 (1974).

Attacks on original judgments in alimony cases.

- Under doctrine of res judicata, a party is not estopped from questioning the validity of an earlier judgment granting temporary alimony when the original judgment, rendered in a previous litigation between the same parties, was based upon a different cause of action from a subsequent proceeding for contempt. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Party is not estopped from questioning the validity of an earlier judgment granting temporary alimony under the doctrine of res judicata since the original judgment, rendered in previous litigation between the same parties, was based upon a different cause of action from a subsequent proceeding for contempt. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Second action for divorce based on different acts from first action.

- Party who has once filed an action for divorce on the ground of cruel treatment, which suit resulted in a verdict and decree adverse to the libelant, is not barred from thereafter filing a second petition on the same ground, but based on different acts, all of which were committed since the date of the former trial. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940).

Prior judgment vesting custody of minor in mother.

- When custody of a minor child was vested in the mother by prior judgment, it was conclusive against the father and was res judicata in habeas corpus proceeding by father. Levens v. Edge, 217 Ga. 418, 122 S.E.2d 728 (1961).

Deprivation proceedings.

- Unappealed deprivation orders of the juvenile court may be used to establish that the children were deprived (now "dependent") within the meaning of former O.C.G.A. § 15-11-94(b)(4)(A)(i) (see now O.C.G.A. § /15 11-310); since the parents did not appeal the deprivation decision regarding their children, they were bound by the determination that their children were deprived (now "dependent") under O.C.G.A. §§ 9-12-40 and9-12-42. In the Interest of C.M., 258 Ga. App. 387, 574 S.E.2d 433 (2002).

Issue of legitimacy of a child.

- Legitimacy of a child is a matter for decision during the divorce proceedings. This issue is res judicata and cannot be raised in a subsequent proceeding to modify the divorce decree. Roberson v. Fooster, 234 Ga. 444, 216 S.E.2d 273 (1975).

When the legitimacy of a child was recognized in prior divorce proceedings, from which no appeal was taken, that issue was res judicata and could not be raised by the mother in a paternity action in which she sought adjudication that a man other than her former husband was the father of the child. Macuch v. Pettey, 170 Ga. App. 467, 317 S.E.2d 262 (1984).

When a divorce decree reflected a finding that the defendant was the child's natural father, the issue of paternity could not be relitigated in a subsequent contempt action against a defendant to recover child support arrearage. Department of Human Resources v. Hambrick, 216 Ga. App. 606, 455 S.E.2d 120 (1995).

Paternity action not barred by prior adjudication in action to recover support payments.

- Paternity action, where blood tests appeared to establish that the prospective father was the biological father of the child was not barred by a prior adjudication in an action brought by the Department of Human Resources to recover the sum expended on behalf of the child, in which a third party acknowledged paternity of the child, under principles of res judicata or collateral estoppel. Miller v. Charles, 211 Ga. App. 386, 439 S.E.2d 88 (1993).

When an order of dismissal entered in a previous Uniform Reciprocal Enforcement of Support Action expressly stated that the issue of paternity was not decided, the issue was not res judicata. Department of Human Resources v. Gelinas, 216 Ga. App. 561, 455 S.E.2d 76 (1995).

Divorce decree determined paternity.

- When a final judgment and decree entered in a divorce action established that the defendant was the father of the minor child and set forth visitation rights and child support obligations, this prior judgment constituted a binding determination of paternity so that the defendant is barred by the doctrine of res judicata from again litigating the issue of paternity. Department of Human Resources v. Hurst, 208 Ga. App. 792, 432 S.E.2d 236 (1993).

Divorce decree determined ownership of insurance policy.

- Res judicata applied to bar husband's action seeking reformation of a life insurance policy to show him as owner when the husband had the opportunity to litigate that issue in the divorce proceeding wherein the policy was awarded to his wife. Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 458 S.E.2d 826 (1995).

Estoppel from setting aside accepted benefits of divorce decree.

- Party litigant who accepts benefits under a divorce decree is estopped to set the decree aside. Guess v. Guess, 242 Ga. 786, 248 S.E.2d 528 (1979).

Jury needed to settle issue of res judicata.

- A court is not authorized to settle the issue raised in a proper plea of res adjudicata without the intervention of a jury, though, in a proper case, it might direct a verdict. Davenport v. Southern Ry., 42 Ga. App. 160, 155 S.E. 340 (1930).