Wood v. Mobley

Court of Appeals of Georgia

Wood v. Mobley

150 S.E.2d 358, 114 Ga. App. 170, 1966 Ga. App. LEXIS 683

CourtCourt of Appeals of Georgia

DecidedJuly 15, 1966

Docket41790

StatusPublished

Cited by1 cases

This text of 150 S.E.2d 358 (Wood v. Mobley) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wood v. Mobley, 150 S.E.2d 358, 114 Ga. App. 170, 1966 Ga. App. LEXIS 683 (Ga. Ct. App. 1966).

Pincite

Opinions

Eberhardt, Judge.

Only Headnote 1 requires comment. It has been urged that a different result is required by the provisions of the Appellate Practice Act of 1965, as amended (Ga. L. 1965, p. 18; Ga. L. 1966, p. 493). We do not agree. It is provided in the amendment of 1966 that a “Motion for judgment notwithstanding the verdict need not be filed as a condition precedent to review upon appeal of an order or ruling of the trial court overruling a motion for directed verdict, but in all cases where such motion is an available remedy, the party may file the motion, or appeal directly from the final judgment and enumerate as error the overruling of the motion for directed verdict.” (Emphasis supplied).

It is to be observed that the provision is in the alternative. The losing party may file a motion for judgment n.o.v., or he may appeal directly from the judgment and enumerate as error the denial of a directed verdict. Our view is that if he files a motion for judgment n.o.v., as was done in this case, and obtains a ruling on it he has used that device as a means of reviewing the motion for directed verdict at the trial level. If the ruling is adverse he must enumerate it as error on appeal or become bound by the ruling and judgment unexcepted to, which becomes the law of the case. Kelly v. Strouse, 116 Ga. 872, 892 (43 SE 280); Griffin v. Beasley, 173 Ga. 452 (2a) (160 SE 500).

“As was said in City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759), 'a reviewing court should apply the law as [172]*172it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law.’ See also Texas Co. v. Brown, 258 U. S. 466 (2), 474 (42 SC 375, 66 LE 721).” Fulton County v. Spratlin, 210 Ga. 447 (2) (80 SE2d 780). This principle is particularly applicable in the area of procedural or remedial legislation, for no litigant has a vested right in a particular manner of adjudicating his right, and so long as he is afforded a manner of doing so there is no constitutional proscription against amending or changing the method prescribed when his right may have accrued, or even pending his action to enforce it. Knight v. Lasseter, 16 Ga. 151, 153; Lockett v. Usry, 28 Ga. 345 (3). Nor does one who has obtained a verdict have any vested right therein until the judgment thereon becomes absolutely final. Western Union Tel. Co. v. Smith, 96 Ga. 569 (23 SE 899). The amendment of 1966 to the Appellate Practice Act of 1965 in no way impairs vested rights; consequently, although this appeal was filed in November, 1965, we must apply the Act in its amended form in arriving at our judgment. There is no disagreement among the judges of this court on that proposition; it is only as to the construction to be given the amendment, as is to be observed in a reading of the special concurrence and dissents.

A different question would have been raised if appellant had not filed a motion for judgment n.o.v. and obtained a ruling thereon, but instead had appealed directly from the judgment, enumerating as error the denial of the motion for a directed verdict.

Judgment affirmed.

Nichols, P. J., Frankum, Jordan, Hall, Pannell and Deen, JJ., concur. Felton, C. J., and Bell, P. J., dissent.

Free access — add to your briefcase to read the full text and ask questions with AI

Eberhardt, Judge.

Only Headnote 1 requires comment. It has been urged that a different result is required by the provisions of the Appellate Practice Act of 1965, as amended (Ga. L. 1965, p. 18; Ga. L. 1966, p. 493). We do not agree. It is provided in the amendment of 1966 that a “Motion for judgment notwithstanding the verdict need not be filed as a condition precedent to review upon appeal of an order or ruling of the trial court overruling a motion for directed verdict, but in all cases where such motion is an available remedy, the party may file the motion, or appeal directly from the final judgment and enumerate as error the overruling of the motion for directed verdict.” (Emphasis supplied).

It is to be observed that the provision is in the alternative. The losing party may file a motion for judgment n.o.v., or he may appeal directly from the judgment and enumerate as error the denial of a directed verdict. Our view is that if he files a motion for judgment n.o.v., as was done in this case, and obtains a ruling on it he has used that device as a means of reviewing the motion for directed verdict at the trial level. If the ruling is adverse he must enumerate it as error on appeal or become bound by the ruling and judgment unexcepted to, which becomes the law of the case. Kelly v. Strouse, 116 Ga. 872, 892 (43 SE 280); Griffin v. Beasley, 173 Ga. 452 (2a) (160 SE 500).

“As was said in City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759), 'a reviewing court should apply the law as [172]*172it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law.’ See also Texas Co. v. Brown, 258 U. S. 466 (2), 474 (42 SC 375, 66 LE 721).” Fulton County v. Spratlin, 210 Ga. 447 (2) (80 SE2d 780). This principle is particularly applicable in the area of procedural or remedial legislation, for no litigant has a vested right in a particular manner of adjudicating his right, and so long as he is afforded a manner of doing so there is no constitutional proscription against amending or changing the method prescribed when his right may have accrued, or even pending his action to enforce it. Knight v. Lasseter, 16 Ga. 151, 153; Lockett v. Usry, 28 Ga. 345 (3). Nor does one who has obtained a verdict have any vested right therein until the judgment thereon becomes absolutely final. Western Union Tel. Co. v. Smith, 96 Ga. 569 (23 SE 899). The amendment of 1966 to the Appellate Practice Act of 1965 in no way impairs vested rights; consequently, although this appeal was filed in November, 1965, we must apply the Act in its amended form in arriving at our judgment. There is no disagreement among the judges of this court on that proposition; it is only as to the construction to be given the amendment, as is to be observed in a reading of the special concurrence and dissents.

A different question would have been raised if appellant had not filed a motion for judgment n.o.v. and obtained a ruling thereon, but instead had appealed directly from the judgment, enumerating as error the denial of the motion for a directed verdict.

Judgment affirmed.

Nichols, P. J., Frankum, Jordan, Hall, Pannell and Deen, JJ., concur. Felton, C. J., and Bell, P. J., dissent.

Cite This Page — Counsel Stack

Bluebook (online)

150 S.E.2d 358, 114 Ga. App. 170, 1966 Ga. App. LEXIS 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-mobley-gactapp-1966.

Opinions

Related

Cite This Page — Counsel Stack