Jackson v. Jackson , 179 Ga. 696 ( 1934 )

Gilbert, J.,

concurring specially. I concur in all of the rulings on the merits of the case. My purpose is to call attention to the form of the judgment rendered by this court. It must be admitted that similar judgments have heretofore been rendered, and they afford physical precedents. In my opinion, with the utmost respect for my colleagues who differ, such judgments are illogical, beyond justification, and should not be followed. If a case is dismissed and is entirely out of the trial court, it is ended. The trial court no longer has jurisdiction, and can allow no further amendments. Even when directed by this court, it can not be done, for lack of jurisdiction of the case in the trial court. A contrary view must be that, when a case is entirely out of the trial court and that dismissal is unconditionally affirmed by this court, this court can give directions for further proceedings in the trial court. In this I can not concur. Where the case is dismissed, and the judgment reversed here, the case, of course,- goes back for further proceedings. Where the judgment of the lower court is a refusal to dismiss and this court affirms, again the case goes back for trial. Where the judgment of the trial court does not dismiss the case entirely, the trial court does not lose jurisdiction; then again, even though this court affirms the dismissal as to some, parties, the part of the case still pending in the trial court may be amended as provided by law for other cases. Irons v. American National Bank, 178 Ga. 160, 174 (172 S. E. 629). In this case a general demurrer was sustained, and that judgment has been “affirmed with direction” that plaintiff be allowed to amend, and that on compliance the case will stand for trial on the petition as thus amended. Perhaps the judgment in this form might be construed to be tantamount to a reversal, in which case it may be proper, as affording jurisdiction in the trial court. It would be much simpler and more direct to use the word “reversed.” I can concur in the result on the theory that this court orders a reversal on the condition named.