dissenting.
These two subrogation cases are similar. While the *457facts are different, the rights of the parties are virtually the same.
Lloyd C. George was killed on July 23, 1971, while working within the scope of his employment. He left a widow and minor son. Workmen’s compensation payments were made to the widow, but the employer’s insurer put everyone concerned on notice of its sub-rogation rights to money paid out by it because of the death of the employee under the workmen’s compensation statute then in effect.
Thereafter, his widow brought a tort action against one she considered liable for her husband’s wrongful death. The subrogation statute, to wit, Code Ann. § 114-403, was repealed by Ga. L. 1972, pp. 3, 4; which repeal law became effective on the 1st day of July, 1972. The widow and defendant in the tort action reached a settlement of her suit on the 30th day of November, 1972, which was after the repeal of the subrogation statute. (In Dukes, settlement was made on July 21, 1972.)
Periodic payments of workmen’s compensation were made to the widow until her remarriage in January, 1972, and thereafter payments continued to her as the legal guardian of the minor son. Such payments were made by agreement of the parties and approval of the board.
A sum of $6,000 was placed in escrow with one Bernice Spengler which was derived from (and as a part of) the settlement of the tort claim, pending a determination as to the validity of the insurer’s claim of subrogation.
Spengler, the escrow agent, and Carolyn Ann McDonald, the widow who had remarried, individually and as the legal guardian of her minor son, brought the present declaratory judgment action to determine who owned the $6,000 in escrow. They contended that as the subrogation law had been repealed before settlement of the tort claim, this sum belonged to the widow; and further that the right to collect future payments of workmen’s compensation was still in the minor son. They contended the rights of the minor son to payments of workmen’s compensation were not affected by the wrongful death case, because he was not a party thereto.
*458The defendant-insurer answered, and admitted certain of the material allegations, but denied that plaintiffs were entitled to so much of the fund as was represented by payments it had made as workmen’s compensation. Defendant also prayed that the court declare it was not required to make future payments of workmen’s compensation to the minor son.
Motion for judgment on the pleadings was filed by the plaintiffs. After hearing same, the court directed plaintiff Spengler to pay over to defendant all funds paid by the defendant as workmen’s compensation; and that all remaining funds be paid to the widow; and that the workmen’s compensation payments to the minor cease. It then dismissed the plaintiffs’ complaint. Plaintiffs appeal.
The rights and liabilities of the parties in the Dukes case are virtually the same.
The right of the insurer to subrogation was terminated by repeal of the statute on subrogation. If the insurer’s right to such subrogation had vested prior to repeal of the statute, it would have been entitled to seek return of the payments it had made as workmen’s compensation. But no such right inhered in the insurer here because the law as to subrogation was non-existent when its alleged rights occurred, to wit, on date of settlement of the tort action. There is no necessity of considering whether or not the lower court erred in denying the minor’s rights to workmen’s compensation, because the entire judgment is erroneous.
"The repeal of a statute without reservation takes away all remedies given by it and even defeats all actions and proceedings pending under it at the time of its repeal, and this is especially so where the statute repealed is one creating a cause of action. 82 CJS 1012, Statutes, § 439a. Western Union Tel. Co. v. Lumpkin, 99 Ga. 647 (27 SE 74); Fulton County v. Spratlin, 210 Ga. 447 (1) (80 SE2d 780); Fulton Bag &c. Mills v. Williams, 212 Ga. 783 (3) (95 SE2d 848).” Gold v. Pioneer Fund, 107 Ga. App. 855, 860 (132 SE2d 144).
In Western Union Tel. Co. v. Lumpkin, 99 Ga. 647, supra, the cause of action imposing penalties on telegraph companies was repealed by the General *459Assembly and became law after judgment but while that case was on appeal. The Supreme Court held the judgment was not legally final when the repealing Act was enacted, thereby requiring that the judgment be set aside; the court had no further jurisdiction of the case, citing Western Union Tel. Co. v. Smith, 96 Ga. 569 (23 SE 899). See also State Hwy. Dept. v. Calhoun, 114 Ga. App. 501 (5) (151 SE2d 806).
In the case of Fulton County v. Spratlin, 210 Ga. 447, supra, plaintiff contended that he was appointed to a four year term of office as Deputy Clerk, and the civil service laws at the time of his appointment allowed him to continue to the end of his term before mandatory retirement at age 70. But this law was repealed and he was required to retire immediately upon becoming 70 years of age. Citing the Lumpkin case and others, the Supreme Court held that the fact that he obtained a status under the provisions of one law does not amount to a contract or create a vested right whereby the legislature could not repeal the old and pass a new one.
Again, in Fulton Bag & Cotton Mills v. Williams, 212 Ga. 783, supra, it is held that the statutory allowance to include as deduction Federal Income Taxes paid by a taxpayer, was a privilege allowed the taxpayer as a matter of legislative grace, which could be taken away at any time; and no vested right accrued to the taxpayer when the statute was repealed.
Did the defendant obtain a vested right to subrogation by paying the workmen’s compensation after notice of his right to subrogation? In Jasper School District v. Gormley, 184 Ga. 756, 760 (193 SE 248), a discussion of subrogation is found and it is referred to as a remedy. If the remedy be repealed without reservation, then no right under it remains. No contractual or vested rights have accrued in this case to prevent the legislators from abolishing all rights previously granted by it.
Therefore, even though provisions of the workmen’s compensation law provided for subrogation, as to those who were required to make payments to an injured or deceased employee under the workmen’s compensation statute, the General Assembly of Georgia, in its wisdom, repealed this subrogation statute and abolished such *460remedy, and left no right of subrogation remaining. And that was the situation that existed at the time of settlement of the tort cases in this matter. The trial court erred in awarding the funds in escrow; and also erred in declaring that payments of workmen’s compensation to the minor child should cease.
The opposite result occurred as to Dukes. The only subrogation authorized by law was that of equitable subrogation; and the General Assembly having abolished same, before the settlement between the parties, there remained nothing for the Board of Workmen’s Compensation to consider. There simply was no remedy for the insurer-employer and no one against whom either might seek redress.
I would reverse the judgment in Spengler (No. 48732); and affirm in Dukes (No. 48748). I therefore dissent.