O.C.G.A. § 9-12-8 (2019)

Annotations

JUDICIAL DECISIONS Purpose of this section is to authorize the amendment of a partially illegal verdict so as to enter a valid final judgment, thereby obviating the necessity of a new trial. Roswell Road-Perimeter Hwy. Liquor Store, Inc. v. Schurke, 138 Ga. App. 502, 227 S.E.2d 282 (1976). Whole judgment will not be set aside because of error, if it can be determined from the record how much is erroneous. George A. Rheman Co. v. May, 71 Ga. App. 651, 31 S.E.2d 738 (1944). Verdict must conform to the pleadings and must not be inconsistent. Miller v. Ray, 84 Ga. App. 251, 65 S.E.2d 923 (1951). 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).

RESEARCH REFERENCES 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 ALR 418. Power of appellate court to remit portion of verdict or judgment covering period barred by statute of limitations, 26 ALR2d 956.

Verdict in excess of amount demanded as requiring new trial notwithstanding voluntary remittitur, 65 ALR2d 1331.