Opinion
39717.
DECIDED SEPTEMBER 27, 1962. REHEARING DENIED NOVEMBER 6, 1962.
Workmen's compensation. Fulton Superior Court. Before Judge Pye.
Gambrell, Harlan, Russell, Moye Richardson, Edward W. Killorin, for plaintiffs in error.
Poole, Pearce Hall, Martin H. Rubin, contra.
Where a judgment is entered, pursuant to the provisions of Code § 114-711, which modifies or vacates (and thus supersedes) a prior judgment, a bill of exceptions to the prior judgment will be dismissed since the questions raised therein become moot.
DECIDED SEPTEMBER 27, 1962 — REHEARING DENIED NOVEMBER 6, 1962.
Claimant, his employer and the insurance carrier entered into a compensation agreement which was approved by the board on September 20, 1957. On February 21, 1962, the claimant moved for a judgment against both defendants under Code § 114-711. Defendants filed an answer raising due process constitutional questions under both the State and Federal Constitutions and other matters. Meanwhile, on February 19, 1962, the defendants had applied to the board for a change of condition hearing under Code Ann. § 114-709.
On April 2, 1962, the superior court granted claimant's motion for a judgment for the entire amount of compensation accruing under the award from September 6, 1957, through February 18, 1962. The defendants appealed to the Supreme Court on the constitutional grounds mentioned above. Holding that the constitutional question was settled by Taylor v. Woodall, 183 Ga. 122 ( 187 S.E. 697) and that only an application of that decision was involved, the case was transferred to this court. Continental Cas Co. v. Bump, 218 Ga. 187 ( 126 S.E.2d 783).
On the same day that the Supreme Court decision was rendered defendants filed in that court a "Suggestion of New Proceedings Below and Perhaps of Diminution of the Record," the gist of which is that the board had held a hearing pursuant to the change of condition application, and had made a finding that the claimant had experienced a change of condition as of September 20, 1957, the date of the approved agreement, and had entered an award denying claimant all compensation thereafter. The superior court, while the matter was pending before the Supreme Court, on June 28, 1962, revoked and modified the judgment originally complained of and entered a judgment in conformance with the board's retroactive finding. On oral argument in this court counsel conceded that the second judgment had been entered as stated in the "Suggestion of New Proceedings etc."
We do not here deal with an appeal from a decision of the board, such as is contemplated in Code § 114-710. The time for appeal from the award (or decision of the board) expired 30 days after it was entered. Consequently the bill of exceptions here, assigning error on a judgment of the superior court entered under Code § 114-711, did not operate as a supersedeas, as would be the case if we were dealing with an appeal from the award or some decision or determination of the board. See City of Macon v. Whittington, 170 Ga. 612 ( 154 S.E. 139); American Mut. Liab. Ins. Co. v. Ellison, 82 Ga. App. 712 ( 62 S.E.2d 656). Cf. Ingram v. Liberty Mut. Ins. Co., 63 Ga. App. 493 ( 11 S.E.2d 499); Chevrolet Division, General Motors Corp. v. Dempsey, 97 Ga. App. 309 (2) ( 103 S.E.2d 81). The application for a determination of whether the employee had experienced a change of condition, filed under Code Ann. § 114-709, was pending and a time for hearing thereon had been fixed by the board when this bill of exceptions to the judgment of the superior court was filed. The hearing was held, and when a certified copy of the order of the board thereafter made was presented to the superior court, it was required, under the terms of Code § 114-711, to enter a second judgment vacating that to which this bill of exceptions was taken.
The applicable portion of this statute reads: "In case of an appeal from the decision of the Board, said appeal shall operate as a supersedeas, if the employer has complied with the provisions of this Title respecting insurance, and no such employer shall be required to make payment of the award involved in the questions made in the case so appealed, until such questions at issue therein shall have been fully determined in accordance with the provisions of this Title."
Providing, inter alia, that: "Upon presentation to the court of a certified copy of a decision of the Board ending, diminishing or increasing a weekly payment under the provisions of this Title. particularly of section 114-709, the court shall revoke or modify the [original] order or decree to conform to such decision of the Board." (Emphasis added). This statutory provision creates an exception to the rule that a judgment may not be vacated or modified after expiration of the term of the court during which it was entered.
Thus the posture of the case is that the defendants now have in the superior court all of the relief that they could ask for here. The correctness of the first judgment of the superior court "simply becomes moot and a reversal would not benefit the plaintiff in error." Gillon v. Johns, 105 Ga. App. 599, 600 ( 125 S.E.2d 70) and citations.
The propriety of the second judgment is not now before us.
Since the action of plaintiff in error in obtaining the second judgment has rendered the questions made in this bill of exceptions moot, the costs on appeal are taxed against it. Gillon v. Johns, 105 Ga. App. 599, supra.
Writ of error dismissed. Carlisle, P. J., and Russell, J., concur.
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 S.E. 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 S.E. 574, and citations: West v. Gainesville Bank, 158 Ga. 640, 641, 123 S.E. 870; Tanner v. Wilson, 184 Ga. 628, 633-637, 192 S.E. 425, and citations; Campbell v. Gormley, 185 Ga. 65, 66, supra or makes further action by the trial court "coram non judice and void." Pryor v. Pryor, 164 Ga. 7 (1) ( 137 S.E. 567) and citations; Tanner v. Wilson, 184 Ga. 628, supra. See Board of Commissioners v. Municipal Sec. Corp., 161 Ga. 634 (1) ( 131 S.E. 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 S.E.2d 265); Forrester v. Pullman Co., 66 Ga. App. 745 ( 19 S.E.2d 330); Southeastern Wholesale Furniture Co. v. Atlanta Metallic Casket Co., 84 Ga. App. 271 (1) ( 66 S.E.2d 68); Wood v. Delta Ins. Co., 101 Ga. App. 720 (2) ( 114 S.E.2d 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.
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.
Motion for rehearing denied.