Opinion
39367, 39368.
DECIDED APRIL 3, 1962. REHEARING DENIED APRIL 24, 1962.
Receiver, etc. Columbia Superior Court. Before Judge Anderson.
Eugene M. Kerr, for plaintiff in error.
Randall Evans, Jr., contra.
1. Where the irregularity appears on the face of the record, a judgment may be amended to conform to the verdict even after the case has been reviewed and affirmed by the appellate court.
2. That a verdict is in excess of the amount sued for, when supported by evidence, does not render it void, but it is a mere irregularity to which timely exception must be taken.
3. Where a petition for receivership is not granted, it is error to award a judgment against the insurance company for attorney fees to be paid to counsel for the plaintiff.
DECIDED APRIL 3, 1962 — REHEARING DENIED APRIL 24, 1962.
These cases represent the third and fourth appearance, respectively, of this litigation in this court. In Reserve Life Ins. Co. v. Ayers, 101 Ga. App. 887 ( 115 S.E.2d 477) a verdict for the plaintiff was reversed. In the same case, 103 Ga. App. 576 ( 120 S.E.2d 165) a verdict for the plaintiff was affirmed, and the Supreme Court affirmed the judgment on September 11, 1961. After the remittitur was received in the trial court on September 24, 1961, plaintiff filed a motion to amend the judgment on the ground that it did not conform to the verdict in the case, in that the itemized verdict, containing an item reading "Attorney's fees — $8706.38" totaled $9,412.66 instead of $8,706.38, the amount for which judgment was entered. A demurrer on the ground that the motion failed to set forth a cause for which a legal remedy could be obtained was overruled. The plaintiff then introduced the verdict in evidence, and the court entered an order amending the judgment to a total of $9,412.66 plus interest and costs. These judgments are assigned as error in Case No. 39367.
Further, on October 18, 1961, the plaintiff filed a petition reciting that execution had issued against the defendant on the judgment of September 11, that the same had been levied by the Sheriff of Richmond County, and the property subject to execution had a value of less than $500; that plaintiff, having given proper notice to the State Treasurer, is entitled to have a receiver appointed to impound and sell sufficient assets of the defendant on deposit with the State of Georgia to satisfy the remainder of the judgment. Plaintiff prayed that the Insurance Commissioner be appointed as receiver to demand and receive the bonds on deposit and that a sale be ordered to produce a sum sufficient to satisfy the judgment together with interest and accrued costs, plus "costs of court accruing in this action including reasonable attorney's fees." A rule nisi issued which came on for hearing on October 31, 1961, at which time defendant's demurrer to the petition was heard and overruled. The defendant also filed an answer, which pleaded the payment of the execution, and upon the hearing of these issues it appeared that on October 28th preceding the date of the rule nisi defendant had paid the full amount of the execution to the Sheriff of Richmond County; that neither the plaintiff nor his attorney of record nor the court knew of such payment until informed during the hearing, that counsel for the plaintiff, not knowing the execution had been paid, traveled from his home in Thomson, Georgia, to the courthouse in Augusta prepared to try the case and, when he inquired why he had not been informed, was told that counsel for defendant "knew . . . he would have come to the hearing anyway." Counsel for the plaintiff then gave uncontradicted testimony that, since a receiver was not necessary in view of the payment of the execution, the value of his services in the receivership case was $500. The court entered an order reading in part as follows: "It appearing that the petition for receivership effected payment of the execution issued in this case, and the plaintiff having prayed for attorney's fees in the amount of $1,000 and having testified that the reasonable value of same was $500.00, and there being no conflicting testimony as to the worth of said attorney's fees," plaintiff's counsel was awarded $500 as attorney's fees.
The bill of exceptions in Case No. 39368 assigns error on this judgment as contrary to law, and states that such assignment of error "is limited to the sole matter of law wherein plaintiff in error contends that unless the court in fact appointed a receiver that attorney's fees in any amount could not be awarded in this type proceeding."
1. Plaintiff in error first contends that the trial court had no authority in law to enter the order amending the judgment for the reason that the order is dated October 26, 1961, after the remittitur from the appellate court was made the judgment of the trial court on October 24, 1961, and therefore at a time when the trial court had no jurisdiction to alter the judgment because the case had finally terminated. This contention is without merit. That a judgment may be amended to make it conform to the verdict even after the case has been affirmed on appeal to the Supreme Court, see Moses v. Eagle Phenix Mfg. Co., 68 Ga. 241 (b); Robinson v. Vickers, 160 Ga. 362 ( 127 S.E. 849). The latter case emphasizes that defects in judgments amounting only to irregularities and which appear on the face of the record may be amended after the judgment is finally affirmed. A judgment for a larger amount than that sued for is not for that reason void. It is a mere irregularity. Walker v. Turner, 203 Ga. 525 (3) ( 47 S.E.2d 504). In Brown v. Cole, 196 Ga. 843, 846 ( 28 S.E.2d 76) a lapse of five years was held not to deprive the court of jurisdiction to amend the judgment. But it is to be noted that the motion was made here at a time when the court unquestionably had jurisdiction, after the remittitur was returned and before it was made the judgment of the trial court. See Clements v. Hollingsworth, 206 Ga. 255 ( 56 S.E.2d 505). Having been filed at such time, and the rule nisi issued, the mere fact that the motion was not heard until after judgment was entered up on the remittitur would not in any event deprive the court of jurisdiction. Cf. Sargeant v. Starr, 102 Ga. App. 453 (3) ( 116 S.E.2d 633). The plaintiff in error has cited no cases which would lead to a contrary conclusion. In Bird v. Riggs, 210 Ga. 297 ( 79 S.E.2d 803) the motion to amend the decree would in fact have had the effect of nullifying the verdict instead of conforming to it. The motion in Levine v. Levine, 204 Ga. 313 ( 49 S.E.2d 814) would have had the effect of halting the trial of the case through the introduction of new matter not set out in the pleadings. The motion in Federal Investment Co. v. Ewing, 166 Ga. 246 ( 142 S.E. 890) sought to submit an additional defense on the merits after the judgment had been entered. No case holds that where the motion merely seeks to correct a judgment to conform with the verdict this may not be done at a subsequent time, and even at a different term of court.
2. The other contention of the plaintiff in error is that, conceding the jury returned a verdict for attorney fees in the sum of $8,706.38, the plaintiff only sued for $8,000 as attorney fees and accordingly no judgment can be entered in excess of that amount on this item. While it is true that the prayer was for only $8,000, the uncontradicted evidence upon the trial of the case was that the attorney's services were in fact worth over $9,000. This evidence was admitted without objection, and the general rule is that, after verdict, evidence not authorized by the pleadings as they existed at the time but which might, if objected to, have been covered by an amendment timely offered will be considered as having in effect amended the pleadings. "In such a situation the party having the right to object is held to have waived his objections to the pleadings by allowing such evidence to go to the jury without objection." Harvey v. De Weill, 102 Ga. App. 394 (2) ( 116 S.E.2d 747) and citations. A verdict in excess of the amount sued for is not void but only irregular ( Johnston v. Sheppard, 22 Ga. App. 206, 95 S.E. 743; Walker v. Turner, 203 Ga. 525, supra; Philmon v. Marshall, 116 Ga. 811, 812, 43 S.E. 48) and may accordingly be raised as a ground of a motion for a new trial. Ginn v. Carithers, 14 Ga. App. 298 (4) ( 80 S.E. 698). Here, the plaintiff in error did not raise the point in its motion for a new trial and accordingly waived it. Nor can it contend now that the action of the plaintiff's counsel in apparently acquiescing in an erroneous judgment entered up for an amount less than the verdict at the time the plaintiff's motion for a new trial was filed would work an estoppel against the plaintiff, for estoppel must be specially pleaded, or it, too, will be considered waived. Askew v. Amos, 147 Ga. 613, ( 95 S.E. 5); Devore v. Baxter, 155 Ga. 109 ( 116 S.E. 610); National Land c. Co. v. Zugar, 171 Ga. 228 ( 155 S.E. 7); Hightower v. Blakely Hard Wood Lmbr. Co., 163 Ga. 776 ( 137 S.E. 22). It follows that there was no error of law on the part of the trial court in amending the judgment so as to conform to the face of the verdict.
3. In the companion case the plaintiff, after a levy failed to satisfy the amount of the judgment, brought an action for receivership to sell securities of the defendant on deposit with the Insurance Commissioner sufficient to pay the judgment and attorney fees and costs of the ancillary petition. A rule nisi was granted, but before the date set for hearing the defendant did in fact pay the judgment, although it did appear at the hearing and argue demurrers to the petition before apprising the court of this fact. The court held that, since the filing of the petition for receivership was the procuring cause of payment of the judgment, the plaintiff was entitled to fees and costs for the value of his services as shown by the evidence, and awarded $500 as attorney fees.
In petitions for receivership attorney fees can be awarded only when the receivership is granted. Code §§ 55-314, 55-315; Etna Steel c. Co. v. Hamilton, 133 Ga. 85 ( 65 S.E. 145); Mendenhall v. Stovall, 191 Ga. 452, 456 ( 12 S.E.2d 589). We are cited to no other provision of law under which attorney fees could have been granted in this case, and the grant under these circumstances was error.
Judgment affirmed in Case No. 39367. Judgment reversed in Case No. 39368. Carlisle, P. J., and Eberhardt, J., concur.