(Orig. Code 1863, § 3533; Code 1868, § 3556; Code 1873, § 3613; Code 1882, § 3613; Civil Code 1895, § 4455; Civil Code 1910, § 5000; Code 1933, § 6-102; Ga. L. 1972, p. 738, § 1.)
Law reviews.- For annual survey on zoning and land use law, see 69 Mercer L. Rev. 371 (2017). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018).
JUDICIAL DECISIONS
Section is not a statute of limitation but is jurisdictional.
- Requirement of O.C.G.A. § 5-3-20 that appeals to superior court must be filed "within 30 days of the date the judgment, order, or decision complained of was entered" is not a statute of limitation but is jurisdictional in nature. Rowell v. Parker, 192 Ga. App. 215, 384 S.E.2d 396 (1989).
Section applied liberally in sustaining appeals.
- Very liberal rule has uniformly been recognized in sustaining appeals when party appealing has shown bona fide intention to do so within the four days (now 30 days) allowed by statute. Bank of Empire State v. Booton, 52 Ga. 653 (1874).
Appeal cannot, except by consent or parties, be entered until after judgment in court of ordinary (now probate court). Wright v. Clark, 139 Ga. 34, 76 S.E. 565 (1912); Bates v. Weaver, 145 Ga. 241, 88 S.E. 986 (1916).
Motion to amend judgment does not extend time to file.
- Appeal from a motion to amend judgment of a probate court is not a final judgment and, thus, is not an appealable decision within the meaning of O.C.G.A. § 5-3-2(a). Nor will such a motion extend the date for filing a notice of appeal under the plain and literal language of subsection (a) of O.C.G.A. § 5-3-20. Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).
Executrix's appeal from a probate court's decision was untimely and a motion to reconsider, which actually was a motion to amend, did not extend the time for appeal, and, under O.C.G.A. §§ 5-3-2 and5-3-20, the executrix should have appealed within 30 days of a final order discharging the executrix and ordering that the executrix return a certain amount to the estate. In re Estate of Thomas, 285 Ga. App. 615, 647 S.E.2d 326 (2007).
Claim was time-barred.
- Owner's failure to appeal the rezoning of a neighbor's property precluded the owner from attacking the rezoning decision under Spaulding County, Ga., Unified Development Ordinance § 418 and O.C.G.A. § 5-3-20; a claim that Spaulding County, Ga., Unified Development Ordinance § 414 did not comply with the Georgia Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq., was also time-barred, as any challenge to the rezoning had to be raised within 30 days. Hollberg v. Spalding County, 281 Ga. App. 768, 637 S.E.2d 163 (2006).
Property owners' claims against a county, the county's board of commissioners, and the county's officials were time-barred because, although the owners appeared and objected throughout a zoning process, the owners failed to file an appeal within 30 days of the zoning resolution that formed the basis of the owners' complaint as required by O.C.G.A. § 5-3-20(a). Instead, the owners waited nearly three years to file a new action, asserting that the owners were entitled to do so because the actions of the zoning board were void. The owners could not be permitted to do indirectly that which the law did not allow to be done directly. Fortson v. Tucker, 307 Ga. App. 694, 705 S.E.2d 895 (2011).
Summary judgment in favor of the county was affirmed because the action was filed more than 30 days after the letter was signed; thus, the trial court correctly determined that the action was untimely under O.C.G.A. § 5-3-20. The letter constituted a zoning decision by the county. Mortgage Alliance Corp. v. Pickens County, 316 Ga. App. 755, 730 S.E.2d 471 (2012).
Jurisdiction of court in county without more than 100,000 persons.
- Probate court of county that did not have a population of more than 100,000 persons according to either the 1980 or 1990 decennial census lacked authority to entertain a motion for new trial, and any such motion therefore being without legal force and effect before the county probate court, would not serve to extend the time for filing a notice of appeal under either O.C.G.A. § 5-3-20 or O.C.G.A. § 5-6-38(a). Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).
Rooker-Feldman Doctrine.- Rooker-Feldman barred a property owner's 42 U.S.C. § 1983 claim that the owner had a grandfathered constitutional right to rent a vacation home on a short-term basis that predated enactment of a county regulation; in order for the claim to succeed, it would have been necessary for the court of appeals to conclude that a state court in an earlier case wrongly decided that any constitutional challenge to application of the regulation was barred as untimely. May v. Morgan Cnty. Ga., 878 F.3d 1001 (11th Cir. 2017).
Appeal from magistrate court.
- Magistrate courts are not courts of record with the power to grant new trials; thus, a motion for a new trial in the magistrate court did not toll the time for filing an appeal to state or superior court. Bowen v. Ball, 215 Ga. App. 640, 451 S.E.2d 502 (1994).
Newly discovered evidence when party negligently failed to enter timely appeal.
- When party did not enter appeal within time prescribed and has otherwise been guilty of negligence, a new trial will not be granted on account of newly discovered evidence. Miller v. Mitchell, Reid & Co., 38 Ga. 312 (1868).
Former Code 1933, § 6-102 (see O.C.G.A. § 5-3-20) did not extend time for filing notice of appeal specified in Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112). City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975).
Denial of request for rezoning.
- The signing of the initial document reducing to writing county commission's decision denying a request to rezone a piece of property commenced the running of the clock under this section. Where the chairman of the board of commissioners executed the written minutes of the meeting in which the request was denied on March 25, 1986, the 30-day period for the filing of an appeal began to run on that day, although official notice of the denial was not received in the mail until May 22, 1986. Chadwick v. Gwinnett County, 257 Ga. 59, 354 S.E.2d 420 (1987).
Effect of filing in wrong court.
- Where a notice of appeal from a probate court decision is filed in a timely fashion, the superior court is vested with discretion in determining whether to dismiss the appeal. If the superior court finds that the filing of the notice of appeal in superior court has caused an unreasonable as well as inexcusable delay in the transmission of the record from the probate court, the appeal should be dismissed. Otherwise, the superior court is authorized to retain the appeal. In that event, the superior court has ample authority under § 5-3-27 to enter an order directing that the probate court transmit the record to the superior court so that the appeal can be decided. Mack v. Demming, 248 Ga. 117, 281 S.E.2d 591 (1981).
Municipal court judgment.
- When the defendant was convicted in a municipal court that was not a city court or court of record and, thus, did not have authority to grant new trials, the defendant's motion for a new trial did not toll the 30-day time limit for filing appeals. City of Lawrenceville v. Davis, 233 Ga. App. 1, 502 S.E.2d 794 (1998).
County letter was not a "decision".
- Letter from a county to a developer advising that proposals would be considered under an amended ordinance limiting the development of private sewer systems was not a "decision" of the county for purposes of triggering the 30-day period to appeal under O.C.G.A. § 5-3-20; therefore, the developer's claim of inverse condemnation never ripened. Mortgage Alliance Corp. v. Pickens County, 294 Ga. 212, 751 S.E.2d 51 (2013).
Appeal from action of county commissioners.
- Action for a declaratory judgment that a vote of a board of county commissioners resulted in the denial of a rezoning application was improperly dismissed as untimely because the trial court erroneously treated the judgment as an appeal of a zoning decision. Head v. DeKalb County, 246 Ga. App. 756, 542 S.E.2d 176 (2000).
Cited in Ansley v. Barlow, 103 Ga. 107, 29 S.E. 596 (1897); Wood v. McCrary, 107 Ga. 345, 33 S.E. 395 (1899); Knox v. Crump, 15 Ga. App. 697, 84 S.E. 169 (1915); Holston Box & Lumber Co. v. Holcomb, 30 Ga. App. 651, 118 S.E. 577 (1923); Hughes v. State Bd. of Medical Exmrs., 162 Ga. 246, 134 S.E. 42 (1926); Gray v. Gunby, 206 Ga. 63, 55 S.E.2d 588 (1949); Weatherford v. Weatherford, 114 Ga. App. 223, 150 S.E.2d 713 (1966); Burson v. Foster, 123 Ga. App. 168, 179 S.E.2d 678 (1971); Pope v. Wolfe, 128 Ga. App. 226, 196 S.E.2d 412 (1973); Irby v. Christian, 130 Ga. App. 375, 203 S.E.2d 284 (1973); State Bd. of Equalization v. Pineland Tel. Coop., 135 Ga. App. 796, 219 S.E.2d 1 (1975); King v. King, 137 Ga. App. 251, 223 S.E.2d 752 (1976); City of Atlanta v. International Soc'y for Krishna Consciousness of Atlanta, Inc., 240 Ga. 96, 239 S.E.2d 515 (1977); Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980); Village Ctrs., Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981); Chambers v. City of Atlanta Bd. of Zoning Adjustment, 255 Ga. 538, 340 S.E.2d 922 (1986); Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986); Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986); Cooper v. State, 342 Ga. App. 351, 801 S.E.2d 589 (2017), cert. denied, No. S17C2017, 2018 Ga. LEXIS 7 (Ga. 2018), cert. dismissed, No. S17C2022, 2018 Ga. LEXIS 10 (Ga. 2018), cert. denied, 138 S. Ct. 2039, 2018 U.S. LEXIS 3176, 201 L. Ed. 2d 288 (U.S. 2018).
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Appellate Review, § 252 et seq.
ALR.- Motion or petition for rehearing in court below as affecting time within which appellate proceedings must be taken or instituted, 10 A.L.R.2d 1075.
Lower court's consideration, on the merits, of unseasonable application for new trial, rehearing, or other re-examination, as affecting time in which to apply for appellate review, 148 A.L.R. 795.
Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 A.L.R.2d 482.
Retroactive effect on appeal from judgment previously entered of statute shortening time allowed for appellate review, 81 A.L.R.2d 417.
Right to perfect appeal, against party who has not appealed, by cross appeal filed after time for direct appeal has passed, 32 A.L.R.3d 1290.
Defendant's appeal from plea conviction as affected by prosecutor's failure or refusal to dismiss other pending charges, pursuant to plea agreement, until expiration of time for appeal, 86 A.L.R.3d 1262.