A judgment may be amended by order of the court to conform to the verdict upon which it is predicated, even after an execution issues.
(Orig. Code 1863, § 3424; Code 1868, § 3444; Code 1873, § 3494; Code 1882, § 3494; Civil Code 1895, § 5113; Ga. L. 1902, p. 55, § 1; Civil Code 1910, § 5697; Code 1933, § 110-311.)
Cross references.- Amendment of findings and amendment of judgment upon motion of party, § 9-11-52.
JUDICIAL DECISIONS
Judgment must conform to reasonable intendment of verdict upon which the judgment is based, and may be amended by order of court so as to conform to the verdict, even after execution has been issued. Morris v. Bell, 100 Ga. App. 341, 111 S.E.2d 270 (1959).
Amendment may be made after execution, even though the execution is satisfied. Dixon v. Mason, 68 Ga. 478 (1882); Elliott v. Wilks, 16 Ga. App. 466, 85 S.E. 679 (1915).
Judgment must be amended by inspection of the record, including the verdict and pleas; the grounds cannot be proved by parol evidence. Dixon v. Mason, 68 Ga. 478 (1882); Miller v. Jackson, 49 Ga. App. 309, 175 S.E. 409 (1934); Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611, 51 S.E.2d 872 (1949).
Claim not raised before trial court could not be raised for first time on appeal.
- Trial court properly denied a motion to correct a judgment entered against two debtors and their guarantors, five years and eight months after the expiration of the term of court in which the judgment was entered, as they failed to show any entitlement to relief or exception as to why they could not have timely sought the relief requested, and the debtors and their guarantors failed to raise a claim regarding O.C.G.A. § 9-12-14 in the court below, so it was not properly before the court. De La Reza v. Osprey Capital, LLC, 287 Ga. App. 196, 651 S.E.2d 97 (2007), cert. denied, No. S07C1928, 2007 Ga. LEXIS 819 (Ga. 2007).
When judgment enlarges on the verdict the judgment may be amended to conform thereto. Segers v. Williams, 147 Ga. 146, 93 S.E. 81 (1917).
Judgment enlarging on a verdict may be amended to conform thereto, even if the judgment includes a party defendant against whom the jury made no finding. Rucker v. Williams, 129 Ga. 828, 60 S.E. 155 (1908).
One may prop the execution by working on the judgment, though one cannot prop the levy by working on the execution. Pound v. Faulkner, 193 Ga. 413, 18 S.E.2d 749 (1942).
Amendment may be had at a subsequent term. King v. Rodgers, 22 Ga. App. 198, 95 S.E. 766 (1918).
Modification after end of term allowed when merits not affected.
- Trial court does not err in modifying the court's original order after the end of the court's term since the subsequent modification in no way affected the merits. Burns v. Fedco Mgt. Co., 168 Ga. App. 15, 308 S.E.2d 38 (1983).
Amendment may relate back to the subject matter of the original verdict and judgment, and is not the same thing as setting aside one judgment and entering another; interest is allowable on the judgment on the verdict. Giant Peanut Co. v. Carolina Chems., Inc., 135 Ga. App. 597, 218 S.E.2d 305 (1975).
Motion to amend made nine years after the judgment held not barred. Rucker v. Williams, 129 Ga. 828, 60 S.E. 155 (1908).
Even after judgment has been reviewed by Supreme Court and affirmed, the judgment may be amended. Moses v. Eagle & Phenix Mfg. Co., 68 Ga. 241 (1881).
Amendment after issuance of writ of fieri facias.
- Amendments to judgments may be made in a proper case even after a writ of fieri facias has issued, and the fact that the case has been affirmed by an appellate court in the meantime does not prevent such amendment. Giant Peanut Co. v. Carolina Chems., Inc., 135 Ga. App. 597, 218 S.E.2d 305 (1975).
Eliminating illegal interest.
- When an affidavit of illegality was interposed to a writ of fieri facias upon the ground that the judgment upon which the fieri facias issued included certain interest not warranted by the pleadings, it was not error, as against the defendant, to amend the judgment and fieri facias so as to eliminate the illegal interest, and thereafter to render judgment against the affidavit of illegality. Haygood v. E.B. Clark Co., 30 Ga. App. 392, 118 S.E. 461 (1923).
Modification of decree after expiration of term.
- After expiration of the term at which a decree was entered, it is out of the power of the court to modify and revise the decree in any matter of substance or in any matter affecting the merits. Phillips v. Bowen, 206 Ga. 268, 56 S.E.2d 503 (1949); Reid v. Strickland, 115 Ga. App. 394, 154 S.E.2d 778 (1967).
Judgment bears upon matters in issue at time of the judgment's rendition, and cannot be amended so as to conform to facts not adjudicated at the time. Scarborough v. Merchants & Farmers Bank, 131 Ga. 590, 62 S.E. 1040 (1908); Richards v. McHan, 139 Ga. 37, 76 S.E. 382 (1912); Phillips v. Bowen, 206 Ga. 268, 56 S.E.2d 503 (1949).
When a judgment does not follow the verdict upon which the judgment was issued, the judgment may be amended by order of the court having rendered the judgment so as to make the judgment conform thereto. Powell v. Moore, 202 Ga. 62, 42 S.E.2d 110 (1947).
Revision nunc pro tunc.
- Judgment may be revised or amended, or entered of record, nunc pro tunc, on proper motion, at a term subsequent to that at which the judgment was rendered, so as to make the judgment speak the truth of the decision that was actually rendered, or to make the judgment conform to the verdict. Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611, 51 S.E.2d 872 (1949).
Amendment concerning things occurring subsequent to judgment.
- Judgment which follows a verdict that is in conformity with the issues made by the pleadings cannot, at a subsequent term, be amended on motion, since the matter sought by amendment concerns things that occurred subsequent to the judgment, or as to matters that could have been determined on the trial. Phillips v. Bowen, 206 Ga. 268, 56 S.E.2d 503 (1949).
Amendment eliminating party's interest in contract.
- In a breach of contract case arising out of an LLC operating agreement, it was not clear that the jury intended to extinguish a former LLC member's interest in the operating agreement by the jury's verdict awarding the former member damages, and under O.C.G.A. §§ 9-12-7,9-12-9, and9-12-14, the trial court could not vary the judgment from the terms of the verdict. Kaufman Development Partners, L.P. v. Eichenblatt, 324 Ga. App. 71, 749 S.E.2d 374 (2013).
Judgment which, although dormant, still survives as a debt of record, enforceable by suit, may be so amended as to show an irregularity therein. Leonard v. Collier, 53 Ga. 387 (1874); Williams v. Merritt, 109 Ga. 217, 34 S.E. 1012 (1900).
Amending matters precluded by res judicata not permitted. Glennville Bank v. Deal, 146 Ga. 127, 90 S.E. 958 (1916); Deal v. Glennville Bank, 21 Ga. App. 619, 94 S.E. 835 (1918).
As to matters of form ascertainable from the pleadings and verdict in a case, the decree entered thereon may be amended at any time, even after execution. Reid v. Strickland, 115 Ga. App. 394, 154 S.E.2d 778 (1967).
When a judgment is improperly entered as to matters of form, the decree entered thereon may be amended at any time, even after execution. Harrell v. Kelley, 21 Ga. App. 525, 94 S.E. 830 (1918).
Typographical errors.
- When errors appearing in a judgment as finally entered up are typographical, the errors may be corrected by proper amendment. Clark v. Jackson, 23 Ga. App. 269, 97 S.E. 883 (1919).
Amendment to show judgment is against defendants.
- When a verdict is rendered against the defendants in an action, and the judgment does not show that the judgment is against the defendants, the judgment may be amended to conform to the verdict and show that the judgment is against the defendants. Miller v. Jackson, 49 Ga. App. 309, 175 S.E. 409 (1934).
When a verdict is based on an agreement of counsel, but nothing in the pleadings or verdict shows this fact, the court does not err in denying a motion to amend the judgment entered on the verdict so as to conform the judgment to the true intent of the agreement at a subsequent term of court. Reid v. Strickland, 115 Ga. App. 394, 154 S.E.2d 778 (1967).
Amending to provide for payment of costs.
- When a defendant is convicted, but the judge fails to enter a judgment for costs, it is proper for the judge to enter a nunc pro tunc order amending the former judgment to provide for the payment of costs, after the expiration of the term at which the judgment was entered, and even after an execution for the costs has issued. Pound v. Faulkner, 193 Ga. 413, 18 S.E.2d 749 (1942).
Amending to incorporate plat utilized by jury.
- Trial judge has power to amend a judgment to incorporate the plat utilized by the jury in determining the verdict and thereby conform the description of the condemned lands to the evidence. Norton Realty & Loan Co. v. Board of Educ., 129 Ga. App. 668, 200 S.E.2d 461 (1973).
When judgment against a garnishee fails to conform to the verdict, the judgment may be amended to conform therewith. Merchants' Grocery Co. v. Albany Hdwe. & Mill Supply Co., 44 Ga. App. 112, 160 S.E. 658 (1931).
Power of courts to correct clerical errors and misprisions and to make the record speak the truth by nunc pro tunc amendments after the term does not enable the courts to change the court's judgments in substance or in any material respect. Rogers v. Rigell, 183 Ga. 455, 188 S.E. 704 (1936).
Lapse of time is not sufficient to constitute a bar. Segers v. Williams, 147 Ga. 146, 93 S.E. 81 (1917).
Amendment must be in writing and signed by the judge; there is no such thing as an oral amendment of a sentence or judgment. Mathews v. Swatts, 16 Ga. App. 208, 84 S.E. 980 (1915).
Power to amend and revise does not include the power to supply judicial omissions so as to include what a court might or should have decided, but did not actually decide. Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611, 51 S.E.2d 872 (1949).
Judgment changing verdict in matters of substance.
- When the trial judge entered a lengthy judgment, which changed the verdict in matters of substance, and added numerous powers and directives which were not contained in the verdict, which the judge had no authority to do, the court may be directed to modify that portion of the decree involved in the litigation to conform to the verdict of the jury. Hiscock v. Hiscock, 227 Ga. 329, 180 S.E.2d 730 (1971).
Instance of amendment of judgment error.
- It was error for the court to amend a judgment in trover based on a verdict finding a part of the property to belong to the defendant, thereby rendering a money judgment in favor of the defendant as to the property so found for the defendant, when the plaintiff's petition did not allege the value of the property found for the defendant and the jury made no finding as to its value. Betts v. Mathews, 72 Ga. App. 678, 34 S.E.2d 729 (1945).
Specification of status of parties to promissory note.
- Former Civil Code 1933, §§ 110-306 and 39-107 (see now O.C.G.A. §§ 9-12-11 and9-13-30) placed the burden upon the plaintiff or the plaintiff's attorney in an action against a surety or an endorser on a promissory note to specify the status of the parties to the note. When this was not done, the judgment and execution should be corrected under former Code 1933, § 110-311 (see now O.C.G.A. § 9-12-14). Franklin v. Sea Island Bank, 120 Ga. App. 654, 171 S.E.2d 866 (1969).
When an excess penalty included in a tax execution is illegal, such excess does not invalidate the entire claim, but requires only a partial abatement or amendment; a dismissal of the execution for this reason is unauthorized. State Revenue Comm'n v. National Biscuit Co., 49 Ga. App. 409, 175 S.E. 607 (1934).
Power of a justice of the peace to amend a judgment rendered by the justice of the peace is limited to matters of form. The justice of the peace has no power to change its legal tenor or effect. Barnes v. Mechanics' Sav. Bank, 22 Ga. App. 214, 95 S.E. 757 (1918).
Justice of peace court without authority to amend.
- While in courts of record, judgments are in the breast of the court until the end of the term, and may be amended, modified, set aside, or changed, in form or effect, at the pleasure of the court, this power does not exist in justice of the peace courts. Field v. Jordan, 124 Ga. 685, 52 S.E. 885 (1906); Barnes v. Mechanics' Sav. Bank, 22 Ga. App. 214, 95 S.E. 757 (1918); Reid v. Strickland, 115 Ga. App. 394, 154 S.E.2d 778 (1967).
Cited in Leonard v. Collier, 53 Ga. 387 (1874); Gay v. Cheney, 58 Ga. 304 (1879); Moses v. Eagle & Phenix Mfg. Co., 68 Ga. 241 (1881); Sanders v. Williams, 75 Ga. 283 (1885); Merchants Grocery Co. v. Albany Hdwe. & Mill Supply Co., 44 Ga. App. 412, 160 S.E. 658 (1931); Neely v. Mobley, 49 Ga. App. 541, 176 S.E. 527 (1934); Brown v. Cole, 196 Ga. 843, 28 S.E.2d 76 (1943); McCartney v. McCartney, 217 Ga. 200, 121 S.E.2d 785 (1961); Hesters v. Sammons, 106 Ga. App. 126, 126 S.E.2d 484 (1962); Davis v. Howell, 218 Ga. 169, 126 S.E.2d 766 (1962); Davis v. Howell, 220 Ga. 287, 138 S.E.2d 563 (1964); Johnson v. Johnson, 223 Ga. 833, 158 S.E.2d 383 (1967); Parker v. Spurlin, 227 Ga. 183, 179 S.E.2d 251 (1971); Rosenberg v. Mossman, 140 Ga. App. 694, 231 S.E.2d 417 (1976); Tingle v. Cate, 142 Ga. App. 467, 236 S.E.2d 127 (1977); Insurance Co. v. Dills, 145 Ga. App. 183, 243 S.E.2d 549 (1978); Lowe v. Lowe, 243 Ga. 398, 254 S.E.2d 323 (1979); Hoffman v. Clendenon, 150 Ga. App. 98, 256 S.E.2d 676 (1979); American Petro. Prods., Inc. v. Mom & Pop Stores, Inc., 231 Ga. App. 1, 497 S.E.2d 616 (1998); Taylor v. Peachbelt Props., 293 Ga. App. 335, 667 S.E.2d 117 (2008).
RESEARCH REFERENCES
C.J.S.
- 49 C.J.S., Judgments, §§ 77 et seq., 368.
ALR.
- Power of court to amend indictment, 7 A.L.R. 1516; 68 A.L.R. 928.
Power of appellate court to remit portion of verdict or judgment covering period barred by statute of limitations, 26 A.L.R.2d 956.
Court's power to increase amount of verdict or judgment over either party's refusal or failure to consent to addition, 56 A.L.R.2d 213.