Opinion
37803.
DECIDED SEPTEMBER 25, 1959.
Trover. Fulton Civil Court. Before Judge Henson. May 1, 1959.
Joan Larsen, for plaintiff in error.
Franklin B. Anderson, contra.
Where a defendant in a trover action based on a title-retention contract has a right under his pleadings to an accounting for the benefits accruing to the vendor, a judgment of a trial court, hearing the case without the intervention of a jury, finding that the defendant is not entitled to such accounting and awarding the plaintiff a judgment for the full value of the chattel is contrary to the evidence, without evidence to support it and contrary to law.
DECIDED SEPTEMBER 25, 1959.
This is the third appearance of this case before this court. On the first appearance, Columbia Loan Co. v. Parks, 97 Ga. App. 76 ( 102 S.E.2d 46), the judgment of the trial court was reversed in accordance with the answer to questions certified to the Supreme Court. See Columbia Loan Co. v. Parks, 213 Ga. 723 ( 101 S.E.2d 720). On the second appearance, the defendant having stricken portions of his answer and added other allegations, the judgment of the trial court striking such amendment to the defendant's answer was reversed. Parks v. Columbia Loan Co., 98 Ga. App. 713 ( 106 S.E.2d 442). For a complete history of the case see the opinions cited above. Suffice it to say that Columbia Loan Company, Inc., as assignee of a title-retention contract brought a trover action against Eddie Parks to recover a described automobile or its value, and on the last appearance of this case before this court, Parks v. Columbia Loan Co., 98 Ga. App. 713, 715, supra, it was held: "The defendant in a trover action based on a title-retention contract has an absolute right, under proper pleadings, to compel the plaintiff to account to him for benefits accruing to the vendor when it seeks to rescind the contract of sale, which a trover action always does, and this regardless of whether the plaintiff elects a judgment for the property or its value, or whether the amount which the plaintiff owes the defendant is greater than the value of that which the defendant owes the plaintiff. The amounts to be credited to the various parties, including purchase price, interest or rent, depreciation, and return of purchase money instalment payments and other benefits accruing to the vendor, are within the sound discretion of the triors of fact. Sizemore v. Beeler, 94 Ga. App. 414 [94 S.E.2d 773] . . . Simons v. Wolfe, 91 Ga. App. 823, 825 ( 87 S.E.2d 217)."
Thereafter the case was tried without a jury and a judgment was rendered for the plaintiff in the amount found by the judge to be the value of the automobile. This judgment denied the defendant any accounting for prior payments, holding that the defendant was not entitled to rescind the contract. The defendant moved for a new trial on the usual general grounds, and the judgment denying this motion is now assigned as error.
1. While no motion to dismiss the bill of exceptions is made in the present case, since the defendant in error raises the question of the court's jurisdiction in its brief, the court feels that such contention should be answered. It is contended that the bill of exceptions was not served on the defendant in error after it was certified by the trial court, and therefore, since this service, required by Code (Ann.) § 6-911, was not perfected, the bill of exceptions should be dismissed although no formal motion has been made.
Prior to the certificate of the trial judge in the bill of exceptions there appears the following acknowledgment of service by the attorney for the defendant in error, dated the same date as the certificate of the trial judge: "Due and legal service of the within and foregoing bill of exceptions is hereby acknowledged; copy received. All other and further notice and service prior to the certification of the same is hereby waived. All other and further service of the said bill of exceptions, after the order of certification by the trial judge, is hereby waived."
Under the decision of this court in Perry v. Smith, 91 Ga. App. 538 (1) ( 86 S.E.2d 345), and citations, this acknowledgment of service is sufficient to comply with the requirements of Code §§ 6-911 and 6-912, and the contention of the defendant in error that this court is without jurisdiction of the writ of error is without merit.
2. The trial court found that the defendant was not entitled to an accounting by the plaintiff because he did not rescind the contract until after the plaintiff had filed the trover action against him. Under the law of the case, as established on the prior appearance of the case before this court, the defendant was entitled to an accounting, not because of a failure of consideration, but because under his pleadings he is entitled to an accounting of any moneys and any other consideration given to the plaintiff under the contract before such contract was rescinded by the plaintiff.
The trial court in the present case found the automobile to be worth $220 and rendered judgment for the plaintiff in that amount, and further found that, since the defendant did not attempt to rescind the contract until after the trover action was instituted, the defendant was not entitled to rescind the contract. Under the law of the case the defendant, under his pleaded answer, was entitled to an accounting, and under the judgment of the trial court he was denied this right, although the uncontradicted evidence showed that the defendant was entitled to some credits under the established law of the case. Therefore, while the amount of the credits was for the trior of facts, the judgment rendered by the trial court without the intervention of a jury was without evidence to support it and contrary to law, and the judgment of the trial court denying the defendant a new trial on his motion, based on the usual general grounds only, must be reversed.
Judgment reversed. Felton, C. J., and Quillian, J., concur.