Bishop v. Pendley Lumber Co.

Beck, J. (After stating the foregoing facts.) 1. While the verdict would have been more perfect as a matter of form had it specified the defendants in whose favor upon the claim of set-off the same was rendered, the fact that it failed to name a particular defendant is not good ground for the arrest of judgment in this case, because it clearly appears that William and Willis Pendley were the only defendants having claims of set-off, and the verdict can have no other meaning than that it was a finding in favor of those defendants for the sum of $1,000, and in favor of the other defendant generally. And as the plaintiff is not [828] concerned as to the division of the amount between William and Willis Pendley, the verdict will not be set aside at his instance. 2. The other ground upon which the motion in arrest of judgment is based points out such a defect in the verdict that the judgment based thereon must be arrested, unless the party in whose favor the verdict was rendered will himself renounce all future interest thereon; because as the verdict stands there would be necessarily a calculation of interest upon interest, which is not permissible. It is true that in the judgment it was undertaken to segregate the principal and interest; but the proper segregation of the principal from the interest and what amount should have been allowed as principal and what as interest was a question for the jury, which they should have determined in their verdict, and the court was not authorized to do this in the judgment. No basis for such a division of principal and interest as is found in the judgment is to be found in the verdict; nor could a basis for this division of the amount found in the verdict be obtained from the pleadings in the case. But if the defendants in whose favor the verdict was rendered renounce all future interest at the time at which the remittitur from this court shall be filed in the court below, or within twenty days thereafter, and will then make and file such a renunciation and amend the judgment already rendered in their favor accordingly, then the judgment shall be permitted to stand. This direction here .given is in accordance with that given in the case of Buice v. McCrary, 94 Ga. 418 (20 S. E. 632), and the case of Hubbard v. McRae, 95 Ga. 705 (22 S. E. 714), where a similar situation was presented. In case the prevailing party in the court below declines to enter the renunciation of future interest and to amend the judgment in accordance with what is said above, then the motion in arrest of judgment should be sustained, and the judgment of the court below refusing it will be reversed. But if because of the failure of the prevailing party to renounce future interest the judgment of the court below be reversed, the verdict rendered at the former trial of this case is set aside and the case will be tried anew. For where in a civil case the judgment is arrested, as here, because of a defect in the verdict and judgment, and not upon a ground affecting the real merits of the claim upon which the verdict and judgment are rendered, the case shall be submitted to the court and [829] 'a jury, that a verdict in accordance with the law and the' facts may be rendered. Judgment affirmed, with direction. All the Justices concur.