ON MOTION ROE REHEARING.
Broyles, C. J.Counsel for the plaintiff in error insist that a rehearing should be granted, (1) “Because the court overlooked the fact that this court had ordered a new trial as to one of the joint defendants in said case,” the estate of D. Greenfield; and (2) because the court overlooked a line of decisions holding that "“a verdict for damages against two or more defendants as tortfeasors should be set aside when it is, as against any one of the defendants thus held liable, unwarranted by the evidence.” In other words, counsel contend that since this court reversed the judgment in Greenfield v. Watson, 54 Ga. App. 9 (supra), it must necessarily reverse the judgment as to the other joint defendants, including Mrs. Gray, the movant in this motion for rehearing. We assume that through courtesy the counsel employed the usual term “overlooked” in reference to the case of Greenfield v. Watson, as that case was cited and discussed at length in the original opinion in this case. The effect of the ruling in the Greenfield case is that the Greenfield estate was not a joint tort-feasor, because the dangerous instrumentality (the pit or ditch into which the plaintiff fell) '“was created solely by the act of the owner of the adjoining parking lot in filling in with dirt and raising the level of the parking lot to even it with the top of the wall.” (Italics ours.) That decision further held as a matter of law, “under the undisputed testimony,” that the Greenfield estate was not liable for the plaintiff’s injury. The three defendants in the trial court filed separate motions for new trial, and came to this court by separate bills of exceptions. The evidence amply supported the verdict against Mrs. Gray. The verdict said that the plaintiff was damaged in a fixed sum, and that damage remains the same regardless of which one of the defendants is responsible for it. In *891furtherance of justice and the attainment thereof without undue delay, our statutes provide that “it shall be within the power of the appellate court to award such order and direction to the cause in the court below as may be consistent with the law and justice of the case” (Code, § 6-1610), “and to grant judgments of affirmance or reversal, or any other order, direction, or decree required therein.” § 24-3901 (2). Italics ours.
The oldest Supreme Court decision we have been able to find on this subject, and therefore the controlling one, is Irwin v. Riley, 68 Ga. 605. It was there held, that while the judge of the superior court “could not refuse a new trial on condition that the plaintiff should release and cancel the judgment as to one of the defendants, as to whom the evidence failed to support the verdict, the power of the Supreme Court [or of the Court of Appeals] is more ample as to moulding the case in the court below. This court may award such order and direction to the cause in the court below as may be consistent with the law and justice of the case. The verdict and judgment being right as to two of the defendants, and unsupported as to the third, it is therefore ordered that a new trial be granted, unless the plaintiff will dismiss his suit as to the last named defendant, and in that event that it be refused.” In the opinion it was said: “But in relieving Turner, one of the defendants, w'e do not think the justice or 1cm of the case demands that a new trial should be had, vacating the verdict against the other two defendants; that would operate unjustly to the rights of the plaintiff. The court below entertaining these views sought to mete out justice to all parties by refusing the new trial as to Irwin and Hammock on condition that plaintiff would release and discharge Turner from the judgment, and so ordered. We question the authority of the circuit judge to impose such terms. . . But the authority of this court, as conferred by statute, in the judgments here pronounced, is not so limited. In any cause tried here, it is within its power to award such order and direction to the cause in the court below as may be consistent with the law and justice of the case.’ Code, § 4284” (1933, § 6-1610). Italics ours. In Harris v. Hull, 70 Ga. 831, 838, it was said: “One great purpose in establishing this court was to terminate suits, and with this view, it is made its duty not only to grant judgments of affirmance or reversal, but any other order, direction or decree *892required, and if necessary to make a final disposition of the cause (Code, § 218), and it is empowered to give to the cause in the court below such direction as may be consistent with the law and justice of the case.” In Austin v. Appling, 88 Ga,. 54 (6) (13 S. E. 955), it was held: “The recovery being correct as to one of the defendants and obviously incorrect as to the other two, the judgment is affirmed as to the former but reversed as to the latter, with direction that the action be dismissed as to them.” In the opinion it was said: “The evidence, we think, is sufficient to sustain the verdict as to the defendant Dobbs. We have already shown it can not be sustained as to the other two defendants. Inasmuch, therefore, as the verdict might have been found against Dobbs alone, the same result may, we think, be properly accomplished by confining it to him. Accordingly, as to Dobbs, the judgment is affirmed; and as to Austin and Boylston it is reversed, and we direct that as to them the action be dismissed.” In Louisville & Nashville R. Co. v. Peeples, 136 Ga. 448 (71 S. E. 805), the suit was against a railroad company and an individual; and the judgment (against both defendants) was reversed as to the railroad company and affirmed as to the individual. In Adamson v. McEwen, 12 Ga. App. 508 (77 S. E. 591), where four defendants were jointly sued, a verdict was rendered in favor of one defendant, and against the other three. The three losing defendants filed a joint motion for new trial, which was overruled, on which judgment error was assigned; and this court reversed the judgment as to only one of the three defendants. If the appellate court can reverse the judgment as to only one of three defendants where a joint motion for new trial is filed; then, a fortiori, it can reverse the judgment as to one defendant only where the appellants themselves separate their cause by filing separate motions for new trial and coming to this court on separate bills of exceptions. See also Western Union Telegraph Co. v. Owens, 23 Ga. App. 169 (6), 174 (98 S. E. 116).
While headnotes 2 and 3 in Finley y. Southern Ry. Co., 5 Ga. App. 722 (64 S. E. 312), cited by movant, if construed alone and without regard to headnote 1 and to the entire opinion, might be misleading, the decision as a whole, which clarifies and shows the reasons for the rulings, furnishes good authority for the contention of the defendant in error in the case sub judice. In head*893note 1 it was held: “The Court of Appeals is clothed with power to direct any order necessary for the proper adjudication of a cause.” This ruling was stressed throughout the opinion. It appeared that Finley, a minor, by next friend, sued the Southern Eailway Company, together with Oscar Turner and Walter Hagan (employees of the company), and a verdict was rendered in favor of the plaintiff. This court said: “We entertain no doubt of the prerogative of this court, in a proper case, to make a tentative, or even a final, disposition of a case by appropriate direction. In fact we have several times exercised the power. . . The Supreme Court [or the Court of Appeals] . . is empowered Ho hear and determine all causes, civil and criminal, that may come before it, and to grant judgments of affirmance or reversal, or any other order, direction, or decree required therein, and, if necessary, to make a final disposition of the cause. . . ‘It shall be within the power of the Supreme Court [or the Court of Appeals] to award such order and direction in the cause in the court below as may be consistent with the law and justice of the case.’ . . In fact, at no time has the court questioned its constitutional right to direct a final disposition of a cause in the lower court. . . We apprehend it to be within the appropriate jurisdiction of this court to exercise directory powers in any case where there is no issue of fact, . . ‘and it is empowered to give the cause in the court below such direction as may be consistent with the law and justice of the case.’ . . The framers of our organic law foresaw that cases might arise in which a court of last resort could well be entrusted with the power, not only of . . moulding judgments by the application of the law to admitted facts, . . but also of summarily directing, in a proper case, a final judgment in behalf of one of the parties to the cause.” The ruling in the Fmley ease cited and followed Irwin v. Riley, supra, where it was held that the judge of the superior court could not release or cancel the judgment against one of several joint defendants, but the appellate court could do so; and that in relieving one defendant, it was not necessary “that a new trial should be had vacating the judgment against the other two defendants; [’as] that would operate unjustly to the rights of the plaintiff.”
On the motion for rehearing in the Finley case, this court said: “The motion for rehearing invokes the exercise of this court’s *894power to make a final disposition of a cause. It is asked that this court direct the judge of the city court to dismiss the case as to Turner and Hagan, and let the verdict stand as against the defendant company, and that the judgment be reformed accordingly. The motion for rehearing is based upon the allegation that the court overlooked the case of Irwin v. Riley, 68 Ga. 605. We assume that the learned counsel for plaintiff in error intended to say that the court, perhaps, misconceived the decision in that case; for it is cited in the original opinion. In passing upon this case, we dealt at some length with the question of the Court of Appeals’s directory power, and think we made clear that this court possesses, in any proper case, the power to give final disposition to a case. We did not lose sight of the fact that it was within the power of the court to give the present case the disposition now sought by the plaintiff in error in his motion for rehearing; and while, incidentally to our discussion of the subject, we quoted from the request of the plaintiff in error, as embodied in the brief, we did not mean to hold, nor can it be inferred that the court did hold, that in giving direction to a cause, the exercise of its power is limited to the request of either or both of the parties. The direction to be given should be that which is right and proper in the particular case. . . We can not say that the verdict against the Southern Railway Company was demanded by the evidence; and that the judge would have erred in granting a new trial if he had possessed the power (which this court has) to eliminate the other two defendants, Hagan and Turner, from the judgment. If we could say this, we would feel it our duty to direct that Hagan and Turner be stricken from the judgment, and that judgment be entered up in the city court against the defendant railway company in accordance with the finding of the jury against it.” It is not amiss to say that the judgment affirmed in the Finley case was the first grant of a new trial, and that the errors complained of were not of such materiality and gravity as to authorize a reversal of such a judgment. As shown by the foregoing quotation, the court clearly held that it had the power to release one or more joint defendants and leave other defendants bound by the judgment.
Gilstrap v. Leith, 24 Ga. App. 720 (102 S. E. 169), is cited in a quotation contained in the motion for rehearing in the instant case. In that case it was held that a verdict set aside as to one *895joint defendant must, on motion, be set aside as to the other. However, there are two vital and material things which differentiate that case from the case sub judice: (1) The cause of action was based on the fact that the defendants “conspired together” to slander the plaintiff. In the instant case there was no conspiracy, and, under the ruling of this court in the Greenfield case, there was no joint act of negligence by the defendant released (the Greenfield estate) and the other defendants. (£) It was the trial judge who set aside the verdict as to one of the defendants, and not the appellate court; and under the Irwin case, supra, the judge of the trial court was without authority to do this. The ruling in Hendricks v. Henderson, 38 Ga. App. 298 (143 S. E. 777), relied on and quoted from by the movant, is in conflict with decisions of the Supreme Court and with older decisions of this court, and therefore is not binding authority. Be it said to the credit of Judge Bell (now Justice Bell), who wrote the opinion in that case, that it was he who realized its ruling was erroneous, and he had a memorandum placed in the reports of this court in which he said, in part, that he is now convinced that the court “committed egregious error in the Hendricks case, and the case ought to be overruled or “'killed’ at the first opportunity.” While counsel for movant had no notice of this memorandum, they had '“constructive notice” of the older decisions which take precedence over that case.- Under the authorities hereinbefore cited, and particularly under the Code, §§ 6-1610, 24-3901, and Irwin v. Riley, supra, and the facts of this case, there is no doubt that this court has the power to render such judgment in the case “as may be consistent with the law and justice of the case,” including a reversal as to one defendant and an affirmance as to others. The verdict and judgment being right as to Mrs. Gray, and, according to the decision heretofore rendered, unsupported as to the estate of D. Greenfield, we remold our original judgment of affirmance in this case; and the judgment is now affirmed on condition that the plaintiff dismiss his suit as to the estate of D. Greenfield. If this be not done, the judgment is reversed.
Rehearing denied.
MacIntyre and Guerry, JJ., concur.