Continental Casualty Co. v. Bump , 1962 Ga. App. LEXIS 866 ( 1962 )

On Motion for Rehearing.

Defendant in error (claimant) as a part of his motion for rehearing also filed a suggestion of diminution of the record and along with it a certified copy of a supersedeas bond filed by the plaintiff in error on May 14, 1962, (one day after the bill of exceptions was certified) together with the clerk’s certificate that all costs had been paid. He contends that this supersedeas divested the lower court of jurisdiction to enter the second order referred to in the main opinion.

However valid this contention may appear to be, it will not withstand a close examination of the cases and the applicable statute. It is true that once there is a compliance with the requirement of Code § 6-1002 as was done by plaintiff in error here, the supersedeas is automatic (i.e., arises by operation of law) and does not require a further order of the court. Campbell v. Gormley, 185 Ga. 65 (194 SE 177).

The cases are not clearly definitive as to whether a supersedeas merely “suspends the enforcement” of the judgment excepted to (Barnett v. Strain, 153 Ga. 43 (1), 111 SE 574, and citations; West v. Gainesville Bank, 158 Ga. 640, 641, 123 SE 870; Tanner v. Wilson, 184 Ga. 628, 633-637, 192 SE 425, and citations; Campbell v. Gormley, 185 Ga. 65, 66, supra) or makes further action by the trial court “coram non judice and void.”³ Pryor v. Pryor, 164 Ga. 7 (1) (137 SE 567) and citations; Tanner v. Wilson, 184 Ga. 628, supra. See Board of Commissioners v. Municipal Sec. Corp., 161 Ga. 634 (1) (131 SE 495). A further distinction has been suggested between a case still to be tried (e.g., overruling of general demurrer appealed) and one that “has been tried, and is no longer pending in the trial court . . .” (e.g., overruled motion for new trial appealed) Kiser v. Kiser, 214 Ga. 849, 852 (108 SE2d 265); Forrester v. Pullman Co., 66 Ga. App. 745 (19 SE2d 330); Southeastern Wholesale Furniture Co. v. Atlanta Metallic Casket Co., 84 Ga. App. 271 (1) (66 SE2d 68); Wood v. Delta Ins. Co., 101 Ga. App. 720 (2) (114 SE2d 883). Regardless of these cases, we think the answer lies in that portion of Code § 114-711 quoted in the main opinion at footnote 2. The mandatory language (“shall”) of that section clearly provides authority for the superior court to enter the second order.

Motion for rehearing denied.

3 The breath of this pronouncement when measured by the facts of the cases appears to be unwarranted. However, cases of both types refer to “lack of jurisdiction” in the lower court.