National Bank v. REFRIGERATED &C. CO.

143 Ga. App. 661 (1977)

239 S.E.2d 551

NATIONAL BANK OF GEORGIA v. REFRIGERATED TRANSPORT COMPANY, INC.

54668.

Court of Appeals of Georgia.

Argued October 5, 1977.

Decided October 26, 1977.

Heyman & Sizemore, William H. Major, Hicks, *663 Maloof & Campbell, Robert A. Bartlett, Smith, Cohen, Ringel, Kohler & Martin, Ralph H. Hicks, William D. Barwick, for appellant.

Serby & Mitchell, Louis C. Parker, III, for appellee.

DEEN, Presiding Judge.

Refrigerated Transport Co., Inc. (Refrigerated), brought suit against National Bank of Georgia for *662 conversion of checks made payable to it which the bank permitted to be cashed and deposited by United Account Systems, Inc., a collection agency.

On November 5, 1976, the jury returned a verdict for Refrigerated and awarded the company $9,397.96. Three days later, Refrigerated filed a motion for a judgment n.o.v., and for a new trial. On April 12, 1977, Refrigerated filed an amendment to its motion for a judgment n.o.v. After a hearing on Refrigerated's motion for a judgment n.o.v., the trial court entered an order granting appellee's motion and awarded it $45,289.00 less $7,699.04 which had already been paid to the company. Three days later, the court entered a nunc pro tunc order awarding appellee $8,718.32 in interest less prejudgment interest on the $7,699.04. The court, however, did not rule on appellee's motion for a new trial. This case, therefore, is not properly before this court.

CPA § 50 (c) (1) (Code Ann. § 81A-150 (c) (1)) provides: "If the motion for judgment notwithstanding the verdict provided for in subsection (b) of this section is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial." (Emphasis supplied.) "The purpose of the trial court's ruling upon the motion for new trial in addition to the motion for judgment n.o.v., as is apparent from subsection (c) (1), is to eliminate the necessity, should the appellate court reverse the granting of the judgment n.o.v., of remanding the case to the trial court for a ruling upon the motion for a new trial, from which ruling yet another appeal could be taken, resulting in fractured appellate consideration of questions arising from the same trial." Speer v. Gemco Elevator Co., 134 Ga. App. 360 (214 SE2d 425).

Remanded with direction. Webb and Birdsong, JJ., concur.