(Laws 1843, Cobb's 1851 Digest, pp. 474, 502; Code 1863, §§ 3358, 3359, 3361; Code 1868, §§ 3377, 3378, 3380; Code 1873, §§ 3425, 3426, 3428; Code 1882, §§ 3425, 3426, 3428; Civil Code 1895, §§ 5023, 5024, 5026; Civil Code 1910, §§ 5605, 5606, 5608; Code 1933, §§ 3-408, 3-409, 3-411; Ga. L. 2020, p. 377, § 2-1/HB 865.)
Cross references.- Death of party, Rules of the Supreme Court of the State of Georgia, Rule 10.
Parties, Rules of the Court of Appeals of the State of Georgia, Rule 39.
JUDICIAL DECISIONS
Section changed common law. Mims v. McKenzie, 22 Ga. App. 571, 96 S.E. 441 (1918).
Administrator de bonis non may be made party to suit in county of executor's residence.
- Administrator de bonis non is permitted to be made party to suit pending in county of residence of the executor. Walton v. Gill, 46 Ga. 600 (1872).
No application to foreign executors.
- Rule that an administrator de bonis may be made party to a suit in the county of the executor's residence does not apply to suits by foreign executors. Jones v. Lamar, 77 Ga. 149 (1886).
Section inapplicable when plaintiff executor died before trial. Edwards v. Sosebee, 188 Ga. 602, 4 S.E.2d 473 (1939).
Cited in Waldrop v. Nolan, 192 Ga. 234, 15 S.E.2d 225 (1941); Eubank v. Barber-Colman Co., 115 Ga. App. 217, 154 S.E.2d 638 (1967).
RESEARCH REFERENCES
Am. Jur. 2d.
- 1 Am. Jur. 2d, Abatement, Survival, and Revival, §§ 46, 103.
C.J.S.- 1 C.J.S., Abatement and Revival, §§ 133, 138 et seq. 67A C.J.S., Parties, § 80 et seq.
ALR.
- Right of administrator de bonis non to recover proceeds of personal property of the estate converted by his predecessor, 3 A.L.R. 1252.
Right to revive by amendment an action dismissed by judgement entered upon plea of abatement or demurrer, 106 A.L.R. 570.
Death of principal defendant as abating or dissolving garnishment or attachment, 131 A.L.R. 1146.
Death of party to divorce suit after final divorce decree, but pending appeal or period allowed for appeal, 148 A.L.R. 1111.
Right of substitution of successive personal representatives as party plaintiff, 164 A.L.R. 702.
Order granting or denying revival of action after death of party as final order subject to appeal, 167 A.L.R. 261.
Continuance of civil case because of illness or death of party, 68 A.L.R.2d 470.
Validity of exception for specific kind of tort action in survival statute, 77 A.L.R.3d 1349.
Effect of death of party to divorce proceeding pending appeal or time allowed for appeal, 33 A.L.R.4th 47.
Abatement of state criminal case by accused's death pending appeal of conviction - modern cases, 80 A.L.R.4th 189.
Abatement effects of accused's death before appellate review of federal criminal conviction, 80 A.L.R. Fed. 446.
ARTICLE 2 APPELLATE PRACTICE
Law reviews.
- For article suggesting change in Georgia appellate procedure prior to the adoption of the Appellate Practice Act, see 15 Ga. B.J. 322 (1953). For article advocating reform of appellate procedure prior to the adoption of the Appellate Practice Act, see 18 Ga. B.J. 415 (1956). For article outlining proposed revisions of appellate procedure rules with comments, prior to the adoption of the Appellate Practice Act, see 19 Ga. B.J. 145 (1956). For article, "A Discussion of the 1957 Amendments to Rules of Practice and Procedure in Georgia," see 19 Ga. B.J. 395 (1957). For article discussing results of legislative changes in appellate procedure, prior to the enactment of the Appellate Practice Act, see 20 Ga. B.J. 38 (1957). For article, "The Appellate Procedure Act of 1965" (this article), see 1 Ga. St. B.J. 451 (1965). For article, "1966 Amendments to the Appellate Procedure Act of 1965" (this article), see 2 Ga. St. B.J. 433 (1966). For article, "The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act" (this article), see 3 Ga. St. B.J. 383 (1967). For article discussing problems in Georgia appellate procedure after the adoption of the Appellate Practice Act of 1965 (this article), see 5 Ga. St. B.J. 231 (1968). For article discussing developments in Georgia appellate practice and procedure in 1976 to 1977 (this article), see 29 Mercer L. Rev. 21 (1977). For annual survey of appellate practice and procedure, see 36 Mercer L. Rev. 79 (1984). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017).
JUDICIAL DECISIONS
Legislative intent was to provide a uniform post-trial procedure in all courts of this state from which a writ of error (see O.C.G.A. § 5-6-50) would lie to Supreme Court or Court of Appeals at time of passage. White Oak Acres, Inc. v. Campbell, 113 Ga. App. 833, 149 S.E.2d 870 (1966); Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).
Clear intent is to simplify procedures and avoid dismissal on appeal on account of technical deficiencies. Continental Cas. Co. v. Stephenson, 114 Ga. App. 555, 152 S.E.2d 5 (1966).
Forms of appeals and enumerations of error are governed by practically unlimited looseness authorized by this article. Thomas v. Scott, 221 Ga. 875, 148 S.E.2d 300 (1966) (see O.C.G.A. Art. 2, Ch. 6, T. 5).
Compliance is prerequisite to appellate jurisdiction.
- Appellate court lacks jurisdiction to review judgment sought to be appealed when the appellant fails to follow procedure which confers jurisdiction upon the appellate court. Associated Distribs., Inc. v. Willard, 242 Ga. 247, 248 S.E.2d 645 (1978).
Court's general powers cannot be used to correct noncompliance.
- While a court may have the general power to enter certain types of orders, such as those allowing late filing of papers or those entered or effective nunc pro tunc, that power cannot be used to correct failure to comply with the mandatory requirements of this article. Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978) (see O.C.G.A. Art. 2, Ch. 6, T. 5).
Cited in Crosby v. Crosby, 247 Ga. 792, 279 S.E.2d 712 (1981); Duke v. State, 306 Ga. 171, 829 S.E.2d 348 (2019).
RESEARCH REFERENCES
ALR.
- Power of legislature to require appellate court to review evidence, 19 A.L.R. 744; 24 A.L.R. 1267; 33 A.L.R. 10.
Sufficiency of general objection or exception to evidence admitted without qualification, which was competent against one or more parties, but not all, 106 A.L.R. 467.
Interlocutory ruling or order of one judge as binding on another in same case, 132 A.L.R. 14.
Judgment favorable to convicted criminal defendant in subsequent civil action arising out of same offense as ground for reversal of conviction, 96 A.L.R.3d 1174.