GA Code § 5-5-49 (2021)
2021 Georgia Code|Title 5 - Appeal and Error|Chapter 5 - New Trial|Article 3 - Procedure|§ 5-5-49. Trial of Cases Returned for New Trial by Appellate Courts

  A case decided by the Supreme Court or Court of Appeals which is not finally disposed of by the decision shall stand for further hearing at the term next ensuing after the decision by the appellate court unless the lower court is in session when the decision is made, in which event it shall stand for trial during such term of the lower court.   The clerk of the lower court, upon receipt of the remittitur of the appellate court, shall docket the case for trial in accordance with subsection (a) of this Code section.   The judge presiding may in his discretion postpone the hearing of any such case to a day in the term as to him may seem reasonable; or, if necessary to give proper time for preparation, he may continue the case until the next term of the court.    (Ga. L. 1892, p. 103, §§ 1-3; Civil Code 1895, §§ 5490, 5491, 5492; Civil Code 1910, §§ 6095, 6096, 6097; Code 1933, §§ 70-402, 70-403, 70-404.)   Cross references.   - Provisions regarding continuance of cases returned by appellate courts for trial, §§ 9-10-162,17-8-34.   JUDICIAL DECISIONS    Construction with § 5-5-48. - Former Civil Code 1910, §§ 6094-6098 (see O.C.G.A. §§ 5-5-48 and5-5-49) related relate to trial of cases in which new trials have been granted, and must be construed together. Henry v. State, 20 Ga. App. 742, 93 S.E. 311 (1917).   Effect of noncompliance.    - Noncompliance with O.C.G.A. § 5-5-49 does not result in the automatic acquittal of a defendant in a criminal case. In the absence of language clearly evidencing a legislative intent to effectuate such a broad divestiture of jurisdiction, O.C.G.A. § 5-5-49 must be construed as merely directory. Butler v. State, 207 Ga. App. 824, 429 S.E.2d 280 (1993).   Filing of remittitur in clerk's office is prerequisite to reacquisition of jurisdiction by trial court.    - If trial court does not acquire jurisdiction by filing of remittitur in clerk's office, the court is without authority to take any steps in the case, and has no more right to pass order formally making judgment of the Supreme Court its judgment than the Supreme Court had, without so doing, to proceed with trial. Hagan v. Robert & Co. Assocs., 222 Ga. 469, 150 S.E.2d 663 (1966).   Legislative intent is that entry of remittitur restores trial court's jurisdiction.    - Unless filing of remittitur in office of trial court operates to restore at once to that court the court's former jurisdiction over cases, they ought not to be redocketed when remittitur is so filed, and requirement that they immediately be redocketed when remittitur is entered conclusively shows that it was intention of the legislature that trial court's jurisdiction over cases should be restored when mandate of reviewing court reached it through prescribed procedure. Hagan v. Robert & Co. Assocs., 222 Ga. 469, 150 S.E.2d 663 (1966).    Receipt of remittitur by clerk invests trial court with authority to enforce judgment of affirmance. Knox v. State, 113 Ga. 929, 39 S.E. 330 (1901).    Remittitur must be entered upon minutes of lower court before trial can proceed. Lyon v. Lyon, 103 Ga. 747, 30 S.E. 575 (1898); Hubbard v. McCrea, 103 Ga. 680, 30 S.E. 628 (1898).   Remittitur need not be made judgment of trial court before clerk redockets case.    - Statute cannot possibly mean that remittitur must be made judgment of trial court and spread upon the court's minutes before the clerk of that court proceeds to redocket cases. On the contrary, it contemplates that cases shall be immediately entered upon docket of the trial court, in order that judge, on reaching cases in the cases' regular order, can dispose of the cases by carrying into effect the judgment rendered by reviewing court. Hagan v. Robert & Co. Assocs., 222 Ga. 469, 150 S.E.2d 663 (1966).    Effect of grant of new trial is to require a hearing de novo, wherein new facts may be shown. Anderson v. Clark, 70 Ga. 362 (1883).   Reversal neither serves as substitute for findings for appellant nor enlarges trial judge's powers.    - Judgment of reversal, without more, operates only to vacate orders and decree as therein stated, and to reinvest trial court with jurisdiction on filing of remittitur in office of clerk of trial court. It neither serves as a substitute for findings for appellant, nor enlarges powers of trial judge in reference thereto. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).   Effect of reversal without express direction to lower court.    - When on return of remittitur in case in which there was judgment of reversal but not express direction of Supreme Court to lower court, the case stands as reversed, and a new trial must be had on issues therein raised since the case illegally terminated. Rawdin v. Conner, 211 Ga. 52, 84 S.E.2d 50 (1954).   Reversal for refusal of nonsuit (now dismissal) or new trial does not put case out of court.    - When error assigned on overruling of demurrer (now motion to dismiss), refusal to grant nonsuit, and overruling motion for new trial, judgment of reversal will not put case out of court as on nonsuit. Louisville & N.R.R. v. Ramsay, 137 Ga. 573, 73 S.E. 847, 1913B Ann. Cas. 108 (1912).   Taxing costs in trial court before entry of judgment on remittitur.    - Bartlett v. Taylor, 147 Ga. 85, 92 S.E. 940 (1917).   Failure to move to dismiss counterclaim.    - Because a landlord chose not to move to dismiss a tenant's counterclaim at the first bench trial on the specific ground that the tenant failed to prove the amount of damages for its attorney-fees counterclaim, the tenant was not alerted to the need to reopen the tenant's case to cure the problem, and the landlord's decision meant that following reversal and remand, the trial court was required to allow the tenant to prove those fees at a second trial. Sugarloaf Mills Ltd. P'ship v. Record Town, Inc., 306 Ga. App. 263, 701 S.E.2d 881 (2010).    Cited in American Associated Cos. v. Vaughan, 210 Ga. 141, 78 S.E.2d 43 (1953); Malcom v. Webb, 211 Ga. 449, 86 S.E.2d 489 (1955); Baldwin v. State, 142 Ga. App. 758, 237 S.E.2d 3 (1977).   RESEARCH REFERENCES   Am. Jur. 2d.   - 4 Am. Jur. 2d, Appellate Review, § 9172. 5 Am. Jur. 2d, Appellate Review, § 725 et seq.   ALR.    - Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages awarded, 98 A.L.R. 941; 29 A.L.R.2d 1199.   Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages - modern cases, 5 A.L.R.5th 875.