Continental Insurance v. State Farm Mutual Insurance

McMurray, Presiding Judge,

dissenting.

I respectfully dissent, as it is my view that if this Court follows the holding and proposal of the majority, this action would be tantamount to an implicit overruling of the Supreme Court of the State of Georgia in Connell v. Long, 248 Ga. 716 (286 SE2d 287).

In Connell v. Long, 248 Ga. 716, 718 (1), 719, supra, those appellants complained that the trial court was without authority to enter a judgment notwithstanding the verdict prior to entry of a judgment on a jury’s verdict and the Supreme Court held that “the trial court should not in effect have entered a judgment notwithstanding the verdict on [a] legal claim [that was properly resolved by a jury] prior to entry of judgment on the verdict. [Wall v. C & S Bank of Houston County, 153 Ga. App. 29, 30 (2) (264 SE2d 523), affirmed 247 Ga. 216 (274 SE2d 486)].” Connell v. Long, 248 Ga. 716, 718 (1), 719, supra. The Court of Appeals of the State of Georgia recently acknowledged this procedural rule as controlling authority in Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (1), 486 (417 SE2d 423), and a majority of the Court of Appeals recognized the binding effect of the Supreme Court’s holding in Connell. Nonetheless, the majority in the case sub judice revisits this debate and now states that the logic of Anaya “was misplaced, because this Court treated Connell as a case involving a post-verdict grant of a motion for directed verdict, when no motion for directed verdict was filed in the case, and there had been no reservation of its ruling on such motion by the trial court as is herein involved.” It is my view, that this distinction marks no demarcation between Connell and the case sub judice. On the contrary, the circumstances of the cases are the same, i.e., the trial courts entered judgments notwithstanding verdicts before entry of judgments on jury verdicts.

*844“It is as elemental as ABC that the Court of Appeals is bound by decisions of the Supreme Court.” Hogan v. State, 118 Ga. App. 398, 400 (163 SE2d 889). In the case sub judice, the majority would overrule three decisions of the Court of Appeals which follow the Supreme Court’s lead in Connell v. Long, 248 Ga. 716, 718 (1), supra. It is my view, that overruling these decisions would be tantamount to an implicit overruling of the Supreme Court of the State of Georgia in Connell v. Long, 248 Ga. 716, supra, and that any ruling on the merits of the case sub judice is premature and void. OCGA § 9-12-16. Consequently, I would reverse the case sub judice with direction that judgment be entered on the jury’s verdict. Post judgment remedies may thereafter be pursued. See Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (1), 486, supra. Compare Anthony v. Anthony, 236 Ga. 508, 509 (224 SE2d 349), where the Supreme Court dismissed the appeal under similar circumstances.

I am authorized to state that Presiding Judge Beasley and Judge Andrews join in this dissent.