Bird v. Riggs

210 Ga. 297 (1954)

79 S.E.2d 803

BIRD v. RIGGS.

18401.

Supreme Court of Georgia.

Submitted November 9, 1953.

Decided January 11, 1954.

W. G. Neville, Wm. J. Neville, B. H. Ramsey, Sr., J. P. Dukes, W. Roscoff Deal, for plaintiff in error.

Fred T. Lanier, Robert S. Lanier, Geo. M. Johnston, contra.

HAWKINS, Justice.

When the remittitur from this court in Byrd v. Riggs, 209 Ga. 930 (76 S. E. 2d 774), affirming the judgment of the trial court in overruling a motion for a new trial was filed in the office of the Clerk of Bulloch Superior Court, counsel for the plaintiff in error in that case filed in the trial court the present proceeding, praying that the trial court order the remittitur from this court in said case be held in abeyance in the office of the clerk of the trial court, that entry of judgment thereon be withheld, and that the remittitur from this court and its effect be suspended until such time as a motion pending in that court to set aside a judgment probating a former will shall be adjudicated, and then only if said cause of action shall be determined in favor of the caveator. To the judgment denying this relief the plaintiff in error excepts. Held:

1. As was said by this court in Levine v. Levine, 204 Ga. 313 (49 S. E. 2d 814), with reference to the proceeding there involved, there is no provision of law for the present proceeding. The affirmance by this court without condition or direction of the judgment of the trial court overruling a motion for new trial, and the filing of the remittitur from this court in the office of the clerk of the trial court, left the trial court *298 without jurisdiction to entertain or pass upon the present proceeding, filed after the judgment of affirmance, and the omission or failure to enter the remittitur on the minutes of the trial court could not alter or modify the legal effect of the judgment of affirmance, which was to preclude further proceedings in that case in both this court and the trial court. Code § 6-1805; Allen, Ball & Co. v. Mayor &c. of Savannah, 9 Ga. 286; Pryor v. Pryor, 164 Ga. 7 (137 S. E. 567); Federal Investment Co. v. Ewing, 166 Ga. 246 (142 S. E. 890); Harrison v. Harrison, 208 Ga. 70 (3) (65 S. E. 2d 173).

2. The trial judge did not err in denying the plaintiff's motion.

Judgment affirmed. All the Justices concur, except Duckworth, C. J., not participating.