Opinion
37043.
DECIDED FEBRUARY 13, 1958. REHEARING DENIED FEBRUARY 28, 1958.
Conditional sale; deficiency judgment. Fulton Civil Court. Before Judge Henson. December 10, 1957.
Saul Blau, for plaintiff in error.
Wall Maddox, contra.
1. ( a) A judgment is conclusive as to all matters put in issue, or which under the rules of law might have been put in issue on the trial of the case.
( b) After a verdict and judgment are rendered in a case and the judgment is affirmed by the appellate court, no amendment is possible.
( c) Where a verdict and judgment against the plaintiff in the main action are affirmed by this court, and the judgment is reversed only insofar as it granted to the defendant affirmative relief under separate and distinct issues formed by his cross-action, the new trial will be limited to those issues only which arise by virtue of the cross-action.
2. ( a) The decision of a question on a former appeal is the law of the case on a subsequent appeal of the same action.
( b) Where it was decided upon a former appeal of this action that a verdict for the defendant based on an alleged deficiency resulting from the foreclosure and sale of personal property was, under the facts of the case, contrary to law, a second judgment in favor of the defendant, based upon the same pleadings and evidence, must be set aside.
DECIDED FEBRUARY 13, 1958 — REHEARING DENIED FEBRUARY 28, 1958.
Leroy Doyle filed an action in the Civil Court of Fulton County for money had and received against United Finance Company alleging that he had purchased a certain Oldsmobile; that thereafter he and the defendant mutually rescinded the conditional-sale contract and that he was due the sum of $1,712.41. The defendant denied these allegations and by cross-action sought to recover from the plaintiff $562.18 as a deficiency judgment resulting from its foreclosure and sale of the automobile. Plaintiff then amended and set up that the defendant had agreed to reinstate the contract in consideration of the sum of $300 paid it by the plaintiff, and that it continued to retain this sum and also refused to deliver possession of the vehicle to the plaintiff. On the first trial the court directed a verdict against the plaintiff on the issues formed by the petition, and for the defendant in the sum of $562.18 on the issues formed by the cross-action. On the plaintiff's appeal from this judgment after motion for a new trial, this court, in Doyle v. United Finance Co., 96 Ga. App. 187, 189 ( 99 S.E.2d 522), held: "The court did not err in denying that portion of the motion for new trial relating to the direction of a verdict in favor of the defendant in the main action. The court erred in denying that portion of the motion for new trial which complained of the direction of a verdict for the defendant in the cross-action."
Subsequent to the decision of this court the plaintiff filed two more amendments in the trial court seeking (a) a judgment for $1,472.80 on the theory that the second contract pleaded in his earlier amendment amounted to a novation, and (b) $712.52 as the difference in price between the amount the defendant received on a second sale of the automobile and what it was authorized to retain. The case again proceeded to trial on all issues raised by both parties.
The evidence upon both trials shows substantially the following: That the defendant is the assignee of a conditional-sale contract for an automobile purchased by the plaintiff to be paid for in instalments; that the plaintiff did not pay according to the contract; that the defendant repossessed the automobile and sold it under a foreclosure proceeding thus reacquiring the automobile; that thereafter the plaintiff and the defendant entered into a new contract under which the plaintiff agreed to pay the defendant $350 payable in three instalments and have the remaining balance refinanced by another company, paid no later than July 21, 1956, in one cash payment; that the plaintiff failed to do this, and that such failure gave the defendant the right to resell the automobile at public sale. It also appeared upon the second trial that the defendant had, prior to the first trial, resold the vehicle to a customer for the time price of $2,825 which was not a public sale. Other than this, no new evidence was introduced on the second trial. The trial court again directed a verdict against the plaintiff and for the defendant in the sum of $562.18, the deficiency resulting from the first foreclosure sale. The plaintiff moved for a directed verdict on the issues formed by his petition as amended, and after judgment moved for a judgment notwithstanding verdict based thereon and also for a new trial. The denial of these motions is assigned as error.
1. "A judgment . . . is conclusive . . . as to all matters put in issue, or which, under the rules of law, might have been put in issue in the trial of the case." McLendon v. Shumate, 128 Ga. 526 ( 57 S.E. 886). Before this case was tried in the first instance, the plaintiff knew, as shown by his pleadings, that after the defendant foreclosed on and sold the automobile which the plaintiff had in possession under a retention-title contract, the defendant entered into a new contract with him by which it was agreed that the defendant would keep the car in custody from June 30, 1956, the date of the contract, until July 21, 1956; that during this time the plaintiff, by paying $350 and refinancing the balance owing might repossess the automobile, and that upon his failure to do so the defendant might again sell the car at public sale. The plaintiff knew that he had not reacquired possession of the Oldsmobile, and if he did not know that after July 21, 1956, the defendant had again sold it, it was within his power to ascertain this fact by questioning the defendant's witness, who appeared on both trials and on the second trial testified to the resale of the automobile on October 12, 1956, prior to the first trial. Instead of doing so, and instead of insisting on any right to recover a portion of the amount the defendant had realized from the second sale in excess of what the plaintiff owed him, the plaintiff proceeded on the theory that prior to the foreclosure there had been a mutual rescission of the contract as a result of which the defendant was obligated to return certain instalments the plaintiff had paid on the purchase price. This issue was decided against him in the trial court, and that ruling was affirmed by this court in Doyle v. United Finance Co., 96 Ga. App. 187 ( 99 S.E.2d 522). After a verdict and judgment are rendered in a case, and the judgment is affirmed by the appellate court, no amendment is possible. Felker v. Johnson, 56 Ga. App. 659 ( 193 S.E. 472); Forrester v. Pullman Co., 66 Ga. App. 745 ( 19 S.E.2d 330). The affirmance of the case by this court of the direction of a verdict against the plaintiff on the main action constituted a final adjudication of the main action. Since the grant of the motion for a new trial referred only to the issues raised by the cross-action, only those issues remained for adjudication when the case went back for retrial. See in this connection Jackson v. Butts, 148 Ga. 312, 315 ( 96 S.E. 630); Baker Mercantile Co. v. Hancock Bros. Co., 20 Ga. App. 799 (9) ( 93 S.E. 496); Winn v. Armour Co., 184 Ga. 769 (3) ( 193 S.E. 447); Byrd v. Equitable Life Assurance Society, 185 Ga. 628 (3), 636 ( 196 S.E. 63); Burkhalter v. Deloach, 171 Ga. 384 (9) ( 155 S.E. 513). Accordingly, the plaintiff had no right after the affirmance of the verdict against him to amend his petition or retry the issues raised in the main action. The trial court did not err in denying his motion for judgment notwithstanding verdict, nor his motion for new trial relating to the direction of a verdict in favor of the defendant in the main action.
2. The decision of a question on a former appeal is the law of the case on a subsequent appeal of the same action. Burke v. Ledsinger, 115 Ga. 195 ( 41 S.E. 682); Western A. R. Co. v. Third National Bank, 125 Ga. 489 ( 54 S.E. 621); City of Douglas v. Union Banking Co., 179 Ga. 798 ( 177 S.E. 595). This court, in Doyle v. United Finance Co., 96 Ga. App. 187, 188, supra, held as follows: "Under the new contract the defendant waived its right of any deficiency arising by reason of the foreclosure and sale." This is the only right the defendant sought under its pleadings, and, in any event, since it had not abided by the terms of the second contract between the parties and had not resold the automobile at public sale, it could not have been entitled to a deficiency resulting from the second sale. The motion for a judgment notwithstanding the verdict made by the plaintiff related solely to his action in the main case, and not to the cross-action filed by the defendant. Had the motion been broad enough to include the defendant's cross-action it would have been the duty of the trial court to have granted it. The evidence demanded a verdict against the defendant on the issues raised by its cross-action. The trial court erred in directing a second verdict in its favor for the deficiency arising from the foreclosure sale, and in denying that portion of the motion for new trial which complained of the direction of a verdict for the defendant in the cross-action.
Judgment affirmed in part and reversed in part. Gardner, P. J., and Carlisle, J., concur.