It is the intention of this article to provide a procedure for taking cases to the Supreme Court and the Court of Appeals, as authorized in Article VI, Sections V and VI of the Constitution of this state; to that end, this article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in this article.
(Ga. L. 1965, p. 18, § 23; Ga. L. 1983, p. 3, § 47.)
Law reviews.- For article, "Let's Revise Appellate Procedure in Georgia," see 27 Ga. St. B.J. 135 (1991). For article, "Appeals, Interlocutory and Discretionary Applications, and Post-Judgment Motions in the Georgia Courts: The Current Practice and the Need for Reform Legislation," see 44 Mercer L. Rev. 17 (1992). For comment on Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123 (1966), see 4 Ga. St. B.J. 259 (1967).
JUDICIAL DECISIONS
Purpose of appellate practice rules.
- Appellate practice rules were adopted by the General Assembly for the primary purpose of securing speedy and uniform justice in a uniform and well ordered manner; the rules were not adopted to set traps and pitfalls, by way of technicalities, for unwary litigants. Chambliss v. Hall, 113 Ga. App. 96, 147 S.E.2d 334 (1966).
Liberal construction.
- Pleadings and procedure shall be liberally construed so as to bring about a decision on the merits. Grantham v. State, 244 Ga. 775, 262 S.E.2d 777 (1979).
When the plaintiff failed to file enumerations of error as a separate document, but did set forth enumerations of error in the plaintiff's brief, it was apparent from the notice of appeal, the brief, the enumerations of error in that brief, and the record, exactly what judgment was appealed from and what errors were asserted, and a liberal construction of the appellate practice act required the court to exercise the court's discretion to reach the merits of the case. Leslie v. Williams, 235 Ga. App. 657, 510 S.E.2d 130 (1998).
When the plaintiffs presented an enumeration of error in the plaintiff's appellate brief and it was apparent from that brief, the notice of appeal and the record what judgment was being appealed from and what error was being asserted, the appellate court considered the merits of the appeal to the extent the appeal was supported by argument, citation to the record, and authority. Reeder v. GMAC, 235 Ga. App. 617, 510 S.E.2d 337 (1998).
Although plaintiff's delay in following up on the transmission of the record was unreasonable and inexcusable, the language of this section and O.C.G.A. §§ 5-6-30 and5-6-48 mandated that the appellate practice provisions be liberally construed. Accordingly, the trial court properly denied the defendant's motion to dismiss when the plaintiffs had filed affidavits of indigency. Carter v. Fulton-DeKalb County Hosp. Auth., 209 Ga. App. 384, 433 S.E.2d 433 (1993).
Notice of appeal containing the petitioner's name, indicating the opposing party, specifying the case number and that the appeal involved an adverse ruling in petitioner's habeas corpus action satisfied the requirements of the Appellate Practice Act, O.C.G.A. § 5-6-30 et seq., and, in conjunction with the timely application for a certificate of probable cause, was sufficient to confer jurisdiction over the case upon the Supreme Court. Hughes v. Sikes, 273 Ga. 804, 546 S.E.2d 518 (2001).
Despite the deficiencies in the appellant's brief, which made it difficult for the court of appeals to determine what the case was even about, much less allow the court to perform any meaningful analysis of the asserted errors, given that the Appellate Practice Act, O.C.G.A. § 5-6-30 et seq., was to be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case, the appeals court declined to dismiss the appeal, opting instead to exercise the court's discretion to consider the case's merits. Parekh v. Wimpy, 288 Ga. App. 125, 653 S.E.2d 352 (2007), cert. denied, No. S08C0520, 2008 Ga. LEXIS 319 (Ga. 2008).
Georgia appellate court is bound by the statutory mandate that the Appellate Practice Act, O.C.G.A. § 5-6-30 et seq., is to be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein. Larose v. Bank of Am., N.A., 321 Ga. App. 465, 740 S.E.2d 882 (2013).
Although the state failed to file, or include in the state's brief as Part 2, an enumeration of errors as required by Ga. Ct. App. R. 25(a)(2) and O.C.G.A. §§ 5-6-40,5-6-48(f) and O.C.G.A. § 5-6-30 required the liberal construction of the Appellate Practice Act, O.C.G.A. § 5-6-30 et seq., so as to avoid dismissal of any case or refuse to consider any points raised therein. Because the court could ascertain the state's argument, it was considered. State v. Freeman, 349 Ga. App. 94, 825 S.E.2d 538 (2019).
No application to all appeals.
- While O.C.G.A. § 9-14-52(a) provides that appeals in habeas corpus cases shall be governed by the Appellate Practice Act (Act), O.C.G.A. § 5-6-30 et seq., that provision only means that appeals in habeas corpus cases, once begun, are to be handled in the same way as other civil appeals, and the Act does not provide for every single act involved in an appeal as there is no provision in the Act for computing time limits, and it is necessary to supplement the provisions of the Act by reference to O.C.G.A. § 9-11-6. Head v. Thomason, 276 Ga. 434, 578 S.E.2d 426, cert. denied, 540 U.S. 957, 124 S. Ct. 409, 157 L. Ed. 2d 294 (2003), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Clarification for cross-appeals.
- Appellate court erred by dismissing the cross-appeals of the defendants because a cross-appeal that is filed in a timely and otherwise procedurally proper manner need not be factually related to the issues raised in the main appeal; rather, as O.C.G.A. § 5-6-38(a) states, the cross-appeal may involve all errors or rulings adversely affecting the appellees. Sewell v. Cancel, 295 Ga. 235, 759 S.E.2d 485 (2014).
Georgia Supreme Court clarifies that a cross-appeal that is filed in a timely and otherwise procedurally proper manner need not be factually related to the issues raised in the main appeal; rather, the cross-appeal may involve all errors or rulings adversely affecting the appellee and, to the extent Fulton v. Pilon, 199 Ga. App. 861, 406 S.E.2d 517 (1991), and other cases have required otherwise, those cases are overruled. Sewell v. Cancel, 295 Ga. 235, 759 S.E.2d 485 (2014).
Court of Appeals should pass upon all questions of law not requiring consideration of evidence. Irby v. Christian, 130 Ga. App. 375, 203 S.E.2d 284 (1973), rev'd on other grounds sub nom. Department of Pub. Safety v. Irby, 232 Ga. 384, 207 S.E.2d 23 (1974).
Code citation.
- In raising constitutional issue, one need not cite to official Code, rather than Code Annotated. Grantham v. State, 244 Ga. 775, 262 S.E.2d 777 (1979).
Judgment overruling motion for new trial based upon appealable judgment.
- Using a liberal construction as required by this section, it would be incongruous to declare unappealable a judgment overruling a motion for new trial which is based upon an admittedly appealable judgment. Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev'd on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966).
"Appellee" construed.
- Interpretation of the word appellee, as used in Ga. L. 1968, p. 1072, § 7 (see O.C.G.A. § 5-6-38), to mean only the party against whom appeal is taken and who has a particular interest adverse to setting aside judgment appealed is too restrictive because a liberal construction of Ga. L. 1965, p. 18, § 23 (see O.C.G.A. § 5-6-30) comports with policies of the law, enhances efficient administration of justice, and avoids multiplicity of appeals. Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676 (1978).
"Proceedings in lower court" construed.
- To define "proceedings in lower court," as used in Ga. L. 1973, p. 303, § 1 (see O.C.G.A. § 5-6-37) to mean only those proceedings which directly relate to the appellant's enumerations of error is unduly restrictive because liberal construction comports with the policies of the law, enhances the efficient administration of justice, and avoids a multiplicity of appeals. Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676 (1978).
Dismissal improper under
§ 5-6-39 when appellant does not cause delay and judge denies extension. - To construe Ga. L. 1965, p. 18, § 6 (see O.C.G.A. § 5-6-39) as requiring dismissal when the appellant does not cause delay and trial judge declines to grant requested extension would shut off the right of appeal, and would thus violate Ga. Const. 1976, Art. VI, Sec. II, Para. V (see Ga. Const. 1983, Art. VI, Sec. IX, Para. II), and would be contrary to the legislative intent expressed in Ga. L. 1965, p. 18, § 23 and Ga. L. 1966, p. 493, § 10 (see O.C.G.A. §§ 5-6-30 and5-6-48(b)) as to decision upon the merits. Elliott v. Leathers, 223 Ga. 497, 156 S.E.2d 440 (1967).
Appeal when first-impression issue decided on merits.
- Because important first-impression issue was raised under recently enacted and previously unconstrued public revenue statute, and because the trial court dealt with that issue on the merits, the appellate court chose to pretermit procedural issue and decide the appeal on the merits. In re Board of Twiggs County Comm'rs, 249 Ga. 642, 292 S.E.2d 673 (1982), overruled on other grounds by Duke v. State, 829 S.E.2d 348, 2019 Ga. LEXIS 406 (Ga. 2019).
Delay in filing amendment to notice of appeal.
- Although it has been over two months later, after the expiration of the statutory appeal period, that the appellant filed an amendment to the appellant's original notice of appeal to correct the error the appellant made, in light of O.C.G.A. §§ 5-6-30 and5-6-48, appellant is entitled to amend the appellant's notice of appeal to correct the name of the court to which the appeal is directed. Griffin v. Johnson, 157 Ga. App. 657, 278 S.E.2d 422 (1981).
Failure to comply with requirements for appellate brief.
- Mother's appellate brief failed to provide the required content because there was no statement of the proceedings below, no statement of facts, and not one specific reference to the record or transcript; there was not any appreciable enumerated errors, and no argument or substantive legal analysis; there was no cognizant support for the mother's claim that the trial court erred in granting the father's petition for modification of custody and child support; and, in the absence of a transcript, there was sufficient competent evidence to support the trial court's findings. Floyd v. Brown, 338 Ga. App. 520, 790 S.E.2d 307 (2016).
Dismissal proper when procedure not complied with.
- When the appellant has failed to comply with the interlocutory review procedure, the appellant's appeal must be dismissed. Bautz v. Best, 166 Ga. App. 268, 304 S.E.2d 439 (1983).
In an attorney lien case, the trial court did not abuse the court's discretion by dismissing the former client's appeal for a delay in transmitting the record appendix because the delay of 55 days was inexcusable and caused by the former client, who had elected to take responsibility for transmitting the record by stating in the notice of appeal that the client would file a record appendix and never amended the client's notice of appeal to provide that the clerk would be responsible for transmission of the record. McAlister v. Abam-Samson, 318 Ga. App. 1, 733 S.E.2d 58 (2012).
In a suit pursuant to O.C.G.A. § 36-91-90 et seq. seeking to recover against a payment bond for amounts due for labor and materials provided on a construction project on private property, the court dismissed the subcontractors' appeal because the subcontractors failed to set forth an enumeration of errors as required by O.C.G.A. § 5-6-40. Complete Wiring Solutions, LLC v. Astra Group, Inc., 335 Ga. App. 723, 781 S.E.2d 597 (2016).
Dismissal of appeal not warranted. Estate of Thurman v. Dodaro, 169 Ga. App. 531, 313 S.E.2d 722 (1984).
Dismissal of appeal was improper.
- Georgia Court of Appeals had jurisdiction over a case wherein a purchaser appealed a trial court's grant of summary judgment to other defendants and dismissed them, which occurred prior to settling with the sellers as the purchaser did not voluntarily dismiss the remaining defendants to obtain a directly appealable final order and if the parties had not reached a settlement and proceeded to trial, the purchaser would have been able to directly appeal the judgment resulting from the trial. O'Dell v. Mahoney, 324 Ga. App. 360, 750 S.E.2d 689 (2013).
Cited in Crowe v. Holloway Dev. Corp., 114 Ga. App. 856, 152 S.E.2d 913 (1966); Puckett v. Edmonds, 115 Ga. App. 776, 156 S.E.2d 151 (1967); Mixon v. Hall, 117 Ga. App. 626, 161 S.E.2d 429 (1968); Bonner v. Smith, 226 Ga. 250, 174 S.E.2d 438 (1970); Gilmore v. State, 127 Ga. App. 249, 193 S.E.2d 219 (1972); Ramsey v. Ramsey, 231 Ga. 334, 201 S.E.2d 429 (1973); Taylor v. Columbia County Planning Comm'n, 232 Ga. 155, 205 S.E.2d 287 (1974); Blanchard v. Westview Cem., 133 Ga. App. 262, 211 S.E.2d 135 (1974); Checker Cab Co. v. Fedor, 134 Ga. App. 28, 213 S.E.2d 485 (1975); Contractors Mgt. Corp. v. McDowell-Kelley, Inc., 136 Ga. App. 116, 220 S.E.2d 473 (1975); Gold Kist, Inc. v. Stokes, 235 Ga. 643, 221 S.E.2d 49 (1975); State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977); Justice v. Dunbar, 244 Ga. 415, 260 S.E.2d 327 (1979); Harrison v. Southern Talc Co., 245 Ga. 212, 264 S.E.2d 2 (1980); Cochran v. Levitz Furn. Co., 249 Ga. 504, 291 S.E.2d 535 (1982); Steele v. Cincinnati Ins. Co., 252 Ga. 58, 311 S.E.2d 470 (1984); Dugger v. Danello, 175 Ga. App. 618, 334 S.E.2d 3 (1985); Neese v. Long, 178 Ga. App. 105, 341 S.E.2d 861 (1986); Vaughan v. Brown, 181 Ga. App. 680, 353 S.E.2d 608 (1987); Sharp v. State, 183 Ga. App. 641, 360 S.E.2d 50 (1987); City of Atlanta v. Starke, 192 Ga. App. 267, 384 S.E.2d 419 (1989); Butts v. State, 193 Ga. App. 824, 389 S.E.2d 395 (1989); Griffin v. State, 194 Ga. App. 624, 391 S.E.2d 675 (1990); Hall v. World Omni Leasing, Inc., 209 Ga. App. 115, 433 S.E.2d 297 (1993); Wells v. State, 210 Ga. App. 165, 435 S.E.2d 523 (1993); Green v. State, 226 Ga. App. 467, 486 S.E.2d 691 (1997); Hipple v. Simpson Paper Co., 234 Ga. App. 516, 507 S.E.2d 156 (1998); Adams v. State, 234 Ga. App. 696, 507 S.E.2d 538 (1998); Holy Fellowship Church of God in Christ v. First Community Bank of Henry County, 242 Ga. App. 400, 530 S.E.2d 24 (2000); Blanton v. Duru, 247 Ga. App. 175, 543 S.E.2d 448 (2000); Am. Cent. Ins. Co. v. Lee, 273 Ga. 880, 548 S.E.2d 338 (2001); State v. Jones, 283 Ga. App. 539, 642 S.E.2d 183 (2007); Register v. Elliott, 285 Ga. App. 741, 647 S.E.2d 406 (2007); Coote v. Branch Banking & Trust Co., 292 Ga. App. 164, 664 S.E.2d 554 (2008); Hann v. State, 292 Ga. App. 719, 665 S.E.2d 731 (2008); Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361 (2009); Benefield v. Tominich, 308 Ga. App. 605, 708 S.E.2d 563 (2011); Terrell County Bd. of Tax Assessors v. Goolsby, 324 Ga. App. 535, 751 S.E.2d 158 (2013); State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016); Williams v. Murrell, 348 Ga. App. 754, 824 S.E.2d 638 (2019).