Allen v. Community Loan & Investment Corp. , 78 Ga. App. 611 ( 1949 )

Under the record and the law applicable to a proceeding to have a judgment amended the defendant was not entitled to have the judgment in personam amended by making it also a judgment in rem.

DECIDED FEBRUARY 11, 1949. Charlie and Willie Mae Allen filed a suit in equity in Fulton Superior Court against the Community Loan and Investment Corporation, seeking an injunction, the cancellation of certain notes and bills of sale, and other relief. The defendant in a cross-action sought to recover $386.10 as the balance due on a note and bill of sale in the original amount of $421.20. A copy of this note and bill of sale is attached to the cross-bill, and, under its terms, title is conveyed to the defendant, as security for the debt, in certain described personalty in possession of the plaintiffs. The prayer of the defendant, as contained in the cross-bill, is as follows: "Defendant prays that it have judgment against the plaintiff, jointly and severally for the principal sum of $386.10 and all cost and that process be issued, requiring plaintiffs to be and appear at the next term of this court to answer this complaint." Jury trial was waived, and the bill of exceptions recites that a consent judgment was rendered against the plaintiffs, and, according to the record, judgment was rendered as follows: "The within and foregoing matter coming on for hearing no appearance being made for plaintiff and a waiver of jury trial signed by both counsel being tendered, judgment, by consent of counsel for plaintiff, for defendant on cross-bill is hereby rendered in the sum sued for plus all cost." At a later term of court, the defendant moved to amend this judgment, nunc pro tunc, so that the same would provide for a special lien and be a judgment in rem. In this motion it is stated "that by virtue of the note and conditional bill of sale, attached to defendant's cross-bill, showing title to said property in defendant, defendant was entitled to a special lien on said property, but that inadvertently mention of same was left out of said judgment," and the motion also set out that the plaintiff, Charlie Allen, had filed a petition in bankruptcy, and had been adjudged a bankrupt. The plaintiffs filed a response, alleging that the judgment was in personam, that both plaintiffs had filed voluntary proceedings in bankruptcy in the District Court of the United States, scheduling the judgment as an unsecured claim, that creditors' meetings had been held, and that the plaintiff, Charlie Allen, had received his discharge in bankruptcy. The trial judge ruled on the matter as follows: "The motion to amend judgment coming on for a hearing, both parties being heard, through their counsel of record, it is hereby made the judgment and order of this court that the motion of defendant be granted and a judgment in rem or special lien on property in bill of sale be granted." The plaintiffs excepted to this order and judgment. A 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 it conform to the verdict; but the judgment must be amended by an inspection of the record, including the pleadings and the verdict, without resort to extraneous evidence. See Code §§ 24-104 (6), 81-1201, 81-1205, 110-311; Dixon v.Mason, 68 Ga. 478; Scarborough v. Merchants c. Bank,131 Ga. 590 (62 S.E. 1040); Jones v. Whitehead, 167 Ga. 848 (5) (146 S.E. 768); Bank of Tupelo v. Collier, 192 Ga. 409,412 (15 S.E.2d 499); Miller v. Jackson, 49 Ga. App. 309 (2) (175 S.E. 409). This 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 so decide. Pendergrass v. Duke, 147 Ga. 10 (2) (92 S.E. 649); Dunn v. Southern Bell T. T. Co., 49 Ga. App. 264 (175 S.E. 261); Chandler v. Hammett, 73 Ga. App. 325 (36 S.E.2d, 184). An inspection of the record in the present case shows that the plaintiffs filed a suit against the defendant in which they sought an injunction and cancellation of certain notes and bills of sale, it being alleged that the notes and bills of sale were tainted with usury and that the defendant was threatening to take possession of their household effects, which were set out in the bill of sale. The defendant filed an answer and cross-action in which it was alleged that the plaintiffs were indebted to it in the sum of $386.10, as a balance on a note and bill of sale, a copy of which was attached to the cross-action. The defendant prayed that it have a judgment against plaintiffs for $386.10 and costs. A jury trial was waived by counsel for both parties, and a judgment, by consent of counsel for plaintiffs, was rendered for the defendant on the cross-bill for the sum of $386.10 and costs. No special judgment in rem against the property was asked or prayed for by the defendant in the cross-action. From the record before this court, it appears that the judgment for the defendant was in exactly the manner and amount sought by the defendant, and with the consent of counsel for the plaintiffs, a jury trial having been waived. Under the record and the law applicable to a proceeding to have a judgment amended the defendant was not entitled to have the judgment in personam amended by making it also a judgment in rem.

Judgment reversed. Felton and Parker, JJ., concur.