City of Cornelia v. Gunter

227 Ga. 464 (1971) 181 S.E.2d 489

CITY OF CORNELIA
v.
GUNTER et al.

26376.

Supreme Court of Georgia.

Argued March 8, 1971. Decided April 8, 1971.

Linton K. Crawford, for appellant.

Jack N. Gunter, Robinson, Buice, Harben & Strickland, Emory F. Robinson, Arthur K. Bolton, Attorney General, Ellard & Frankum, for appellees.

UNDERCOFLER, Justice.

This appeal is from an order of the trial court entered at the November 1970 term and dated December 2, 1970. The order overruled the City of Cornelia's first defense that the complaint failed to state a claim against this defendant upon which relief could be granted. This order changed the judgment of the trial court entered at the June 1970 term which was dated September 17, 1970, and dismissed the City of Cornelia as a party defendant. No motion to set aside the order of September 17, 1970, was made. Held:

"After the expiration of the term at which a decree was entered, it is out of the power of the court to modify and revise it in any matter of substance or in any matter affecting the merits. A decree, during the term at which it was rendered, is said to be in the breast of the judge; after it is over, it is upon the roll." Carswell v. Shannon, 209 Ga. 596 (2) (74 SE2d 850). This rule as to the finality of judgments has not been changed by the Civil Practice Act of 1966 (Code Ann. § 81A-160 (h)). Compare Martin v. General Motors Corp., 226 Ga. 860 (1) (178 SE2d 183); Hicks v. Hicks, 226 Ga. 798 (177 SE2d 690).

Accordingly the trial court was without authority to alter its judgment of September 17, 1970, at a subsequent term. The judgment of the trial court dated December 2, 1970, overruling the first defense filed by the City of Cornelia is therefore reversed.

Judgment reversed. All the Justices concur.