Continental Casualty Co. v. Bump

128 S.E.2d 525, 106 Ga. App. 826, 1962 Ga. App. LEXIS 866

Opinions

Eberhardt, Judge.

We do not here deal with an appeal from a decision of the board, such as is contemplated in Code § 114-710.¹ The time for appeal from the award (or decision of the board) expired 30 days after it was entered. Consequently the bill of exceptions here, assigning error on a judgment of the superior court entered under Code § 114-711, did not operate as a supersedeas, as would be the case if we were dealing with an appeal from the award or some decision or determination of the board. See City of Macon v. Whittington, 170 Ga. 612 (154 SE 139); American Mut. Liab. Ins. Co. v. Ellison, 82 Ga. App. 712 (62 SE2d 656). Cf. Ingram v. Liberty Mut. Ins. Co., 63 Ga. App. 493 (11 SE2d 499); Chevrolet Division, General Motors Corp. v. Demysey, 97 Ga. App. 309 (2) (103 SE2d 81). The application for a determination of whether the employee had experienced a change of condition, filed under Code Ann. § 114-709, was pending and a time for hearing thereon had been fixed by the board when this bill of exceptions to the judgment of the superior court was filed. The hearing was held, and when a certified copy of the order of the board thereafter made was presented to the superior court, it was required, under the terms of Code § 114-711,² to enter a second judgment vacating that to which this bill of exceptions was taken.

Thus the posture of the case is that the defendants now have in the superior court all of the relief that they could ask for here. The correctness of the first judgment of the superior court “simply becomes moot and a reversal would not benefit the plaintiff in error.” Gillon v. Johns, 105 Ga. App. 599, 600 (125 SE2d 70) and citations.

The propriety of the second judgment is not now before us.

Since the action of plaintiff in error in obtaining the second judgment has rendered the questions made in this bill of exceptions moot, the costs on appeal are taxed against it. Gillon v. Johns, 105 Ga. App. 599, supra.

Writ of error dismissed.

Carlisle, P. J., and Russell, J., concur.

1

The applicable portion of this statute reads: “In case of an appeal from the decision of the Board, said appeal shall operate as a supersedeas, if the employer has complied with the provisions of this Title respecting insurance, and no such employer shall be required to make payment of the award involved in the questions made in the case so appealed, until such questions at issue therein shall have been fully determined in accordance with the provisions of this Title.”

2

Providing, inter alia, that: “Upon presentation to the court of a certified copy of a decision of the Board ending, diminishing or increasing a weekly payment under the provisions of this Title, particularly of section 114-709, the court shall revoke or modify the [original] order or decree to conform to such decision of the Board.” (Emphasis added). This statutory provision creates an exception to the rule that a judgment may not be vacated or modified after expiration of the term of the court during which it was entered.