Schley v. Schofield & Son , 61 Ga. 528 ( 1878 )

Bleckley, Justice.

As a general rule, where the writ of error is founded upon a trial below in which both law and fact were involved, and where the complaint is that the plaintiff in error lost his case when he was entitled to gain it, and where this court is of opinion that he was entitled to gain it, and where, for that reason, the judgment of the court below is reversed, a new trial follows unless this court, by way of direction, dictates something else. A new trial follows because the former trial terminated in a wrong result. No mere suspension took place, but the trial was concluded ; it was over. If there were a finding of the facts, as by a verdict, and this finding were in favor of the plaintiff in error, and became fixed upon the record, and if the error was simply in applying the law to the found cmd fixed facts, then a reversal would leave something for the court below to fall back upon ; the verdict or other record finding of the facts, would furnish a basis for entering up a correct judgment, 'without either direction to that effect from this court, or a new trial. But when there is no verdict for the plaintiff in error, nor any other formal and fixed finding of the facts, how can such a verdict or finding be dispensed with, and a different judgment be rendered from that which was formerly rendered, unless this court gives some special direction to the case ? It cannot be insisted that because the evidence on which the superior court acted is set out in the bill of exceptions, or in a brief of the testimony, there is no occasion to have the facts found. The difference between a full and faithful report of the evidence, and a verdict or finding thereon, must be obvious to everybody. Where the judge, by consent, exercises the functions of a jury, if he makes no finding, general or special, for the party entitled to prevail, that party cannot prevail without a new trial, except by the mandate of this court. Be the trior of the facts judge or jury, no party can prevail, as a general rule, without some finding hy such trior in his favor. Where the judge acts as a jury, no separate finding of the facts is necessary, but the requisite finding is included implicitly in his general judgment. In such case,' therefore, a reversal of his general judgment vacates alkhe has done. We do not mean to say that he might not find the facts specially, if he thought proper to do so, or that, if he so found them, a reversal of a formal judgment rendered thereon would vacate the special finding. The reversal of an erroneous judgment based on a correct verdict, does not open the verdict, or should not do so ; and a special finding of the facts by the judge would doubtless be the precise equivalent of a verdict. It could be made a part of the record proper, so that a motion in arrest of judgment might be based thereon. But who would ever think of moving in arrest of judgment upon the raw evidence set out in a bill of exceptions or in a brief of the testimony % Mere evidence is food unassimilated; a verdict or finding is the tissue into which it is converted by assimilation. That bare reversal here is generally followed by a new trial below, see 14 Ga., 653; 56 Ib., 520, in connection with 54 Ib., 492; and compare 49 Ib., 303.

It is not disputed that it was competent for this court, in its judgment on the former writ of error, to have directed the superior court to substitute some other judgment in lieu of the one which was reversed, and thus dispense with anew trial. But a judgment of this court, as well as that of any other, ought to be clear and certain. When more than a mere reversal is intended,'the additional matter should not be stated simply by way of a reason for the reversal, as was done when this court said, “ it being the opinion of the court that Schofield & Son’s judgment had the superior lien on the money raised from the sale of the real estatebut there shoirld Bh a mandatory direction to do or to adjudge whatever this court intends shall be done or adjudged. The reasons given for a reversal, whether expressed in the jndgment or in the opinion, are to be respected and applied in conducting the new trial, without any direction to that effect; but to embody these reasons in a new judgment based on the former trial, where there has been no verdict and no special finding of the facts, requires a direction from this court in express terms. And what we direct, is to be ascertained from the judgment which we render ; the direction is judgment, not mere opinion, and as judgment it must appear. What the judgment ought to have contained is manifest, in the present case, from the opinion of the court as then written out at length by my brother Jackson ; but what the judgment does contain is a reversal with a reason for it, but unattended with any direction whatever. A direction ought to have been incorporated; no doubt we intended to do it, or thought we had done it; but what we intended or what we thought is not the question. What did we adj udge ? It is clear now, that we neglected our duty, or at least I did, in not making the judgment as full as it should have been; but no degree of regret for our inattention or oversight, can enlarge the judgment. It is a mere judgment of reversal, nothing more. No importance is attached to the affidavits produced by Schley’s counsel showing a mistake in briefing the testimony. The new trial results from no special circumstance of this sort, but solely from the general rule that reversal here leads to a new trial below.

Judgment reversed, on the ground that the court erred in ordering the fund paid to Schofield & Son without a new trial. Let that part of the order, and whatever depends upon it, be vacated ; and let the issues between the contesting creditors be tried over, with the former judgment of this court as a rule of decision, so far as the same may be applicable.

Warner, Chief Justice, concurred.