(Orig. Code 1863, § 4159; Code 1868, § 4191; Code 1873, § 4250; Code 1882, § 4250; Ga. L. 1890-91, p. 82, § 1; Civil Code 1895, § 5526; Penal Code 1895, § 1069; Civil Code 1910, § 6138; Penal Code 1910, § 1096; Code 1933, § 6-701; Ga. L. 1965, p. 18, § 1; Ga. L. 1968, p. 1072, § 1; Ga. L. 1975, p. 757, § 1; Ga. L. 1979, p. 619, §§ 1, 2; Ga. L. 1984, p. 599, § 1; Ga. L. 1988, p. 1437, § 1; Ga. L. 1994, p. 347, § 1; Ga. L. 2001, p. 88, § 1; Ga. L. 2005, p. 20, § 2/HB 170; Ga. L. 2005, p. 224, § 2/HB 221; Ga. L. 2006, p. 379, § 2/HB 1059; Ga. L. 2006, p. 583, § 1/SB 382; Ga. L. 2007, p. 554, § 2/HB 369; Ga. L. 2011, p. 562, § 1/SB 139; Ga. L. 2012, p. 899, § 8-1/HB 1176; Ga. L. 2013, p. 735, § 1/SB 204; Ga. L. 2016, p. 341, § 1/HB 513; Ga. L. 2019, p. 845, § 2-3/HB 239.)
The 2011 amendment, effective July 1, 2011, added subsection (e). See editor's note for applicability.
The 2012 amendment, effective July 1, 2013, in subsection (a), deleted "and" at the end of paragraph (a)(10), substituted "; and" for the period at the end of paragraph (a)(11), and added paragraph (a)(12).
The 2013 amendment, effective May 6, 2013, substituted "awarding, refusing to change, or modifying child custody" for "including, but not limited to, awarding or refusing to change child custody" in paragraph (a)(11).
The 2016 amendment, effective July 1, 2016, deleted "and" at the end of paragraph (a)(11); substituted "; and" for a period at the end of paragraph (a)(12); and added paragraph (a)(13).
The 2019 amendment, effective May 7, 2019, inserted "the Georgia State-wide Business Court," in the middle of the introductory paragraph of subsection (a).
Cross references.- Certification for immediate review of nonfinal judgments, § 5-7-2.
Applicability of section to orders denying summary judgment, see § 9-11-56.
Right of appeal by first offenders placed on probation, see § 42-8-64.
Granting of application for leave to appeal interlocutory order, Rules of the Supreme Court of the State of Georgia, Rule 22.
Jurisdictional statement and copy of order and compliance with statutory duty to file notice of appeal, Rules of the Supreme Court of the State of Georgia, Rule 24.
Leave to appeal interlocutory order, Rules of the Court of Appeals of the State of Georgia, Rule 29.
Leave to appeal, Rules of the Court of Appeals of the State of Georgia, Rule 40.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 2006, "and" was added to the end of paragraph (a)(9), former paragraph (a)(10), which read: "Repealed; and" was deleted, and former paragraph (a)(11) was redesignated as present paragraph (a)(10).
Pursuant to Code Section 28-9-5, in 2009, "Code Section 16-11-173" was substituted for "Code Section 16-11-184" at the end of paragraph (a)(6).
Editor's notes.- Ga. L. 2001, p. 88, § 3, not codified by the General Assembly, provides that: "This Act shall apply to any case pending on or brought after the effective date of this Act; and, for purposes of taking an appeal pursuant to the provisions of paragraph (5.1) of subsection (a) of Code Section 5-6-34 as enacted by this Act, any ruling actually entered before the effective date of this Act in any case which is pending on the effective date of this Act shall be deemed to have been entered on the effective date of this Act." The effective date of this Act was March 23, 2001.
Ga. L. 2005, p. 20, § 1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Criminal Justice Act of 2005.'"
Ga. L. 2005, p. 20, § 17/HB 170, not codified by the General Assembly, provides that this Act shall apply to all trials which commence on or after July 1, 2005.
Ga. L. 2005, p. 224, § 1/HB 221, not codified by the General Assembly, provides that: "The General Assembly finds and declares that it is important to assess periodically child support guidelines and determine whether existing guidelines continue to be viable and effective or whether they have failed or ceased to accomplish their original policy objectives. The General Assembly further finds that supporting Georgia's children is vitally important to the citizens of Georgia. Therefore, the General Assembly has determined that it is in the best interests of the state and its citizenry to undertake an evaluation of the child support guidelines on a continuing basis. The General Assembly declares that it is important that all of Georgia's children are provided with adequate financial support whether the children's parents are living together or not living together. The General Assembly finds that both parents have a continuing obligation with respect to providing financial and emotional stability for their child or children. It is the hope of the members of the General Assembly that all parents work together to advance the best interest of their children."
Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
"(3) Providing for community and public notification concerning the presence of sexual offenders;
"(4) Collecting data relative to sexual offenses and sexual offenders;
"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and
"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."
Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."
Ga. L. 2006, p. 583, § 8/SB 382, not codified by the General Assembly, amended Ga. L. 2005, p. 224, § 13, so as to delay the effective date of the 2005 amendment to subsection (a) of this Code section until January 1, 2007.
Ga. L. 2006, p. 583, § 9/SB 382, not codified by the General Assembly, provided that it was the intention of the 2006 Act to delay for six months the effectiveness of the provisions of 2005 Act No. 52 (Ga. L. 2005, p. 224) of the General Assembly, excepting only those provisions of 2005 Act No. 52 (Ga. L. 2005, p. 224) creating the Georgia Child Support Commission which went into effect upon approval of that Act by the Governor.
Ga. L. 2006, p. 583, § 10(b)/SB 382, not codified by the General Assembly, provides: "Sections 1 through 7 of this Act shall become effective on January 1, 2007, and shall apply to all pending civil actions on or after January 1, 2007."
Ga. L. 2007, p. 554, § 1/HB 369, not codified by the General Assembly, provides that: "The General Assembly of Georgia declares that it is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage or relationship."
Ga. L. 2007, p. 554, § 8/HB 369, not codified by the General Assembly, provides that the 2007 amendment applies to all child custody proceedings and modifications of child custody filed on or after January 1, 2008.
Ga. L. 2011, p. 562, § 4/SB 139, not codified by the General Assembly, provides that the amendment by that Act shall apply to all notices or applications for appeal filed on or after July 1, 2011.
Law reviews.- For article discussing the inefficiency of mandamus and impeachment as remedies for judicial inaction, see 5 Ga. St. B.J. 467 (1969). For article surveying Georgia cases in the area of trial practice and procedure from June 1977 through May 1978, see 30 Mercer L. Rev. 239 (1978). For article surveying judicial developments in Georgia's trial practice and procedure laws, see 31 Mercer L. Rev. 249 (1979). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For article surveying appellate practice and procedure, see 34 Mercer L. Rev. 3 (1982). For article surveying recent developments in administrative law, see 37 Mercer L. Rev. 503 (1985). For annual survey of appellate practice and procedure, see 38 Mercer L. Rev. 47 (1986). For annual survey of trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For annual survey of appellate practice and procedure, see 40 Mercer L. Rev. 51 (1988). For article, "Intangible Tax Appeals After Blank v. Collins; The Uncertainty Continues," see 27 Ga. St. B.J. 78 (1990). For article, "Let's Revise Appellate Procedure in Georgia," see 27 Ga. St. B.J. 135 (1991). For article, "Getting Certiorari Granted," 28 Ga. St. B.J. 90 (1991). For annual survey of appellate practice and procedure, see 43 Mercer L. Rev. 73 (1991). For annual survey of domestic relations, see 43 Mercer L. Rev. 243 (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 annual survey of appellate practice and procedure, see 56 Mercer L. Rev. 61 (2004). For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For annual survey of appellate practice and procedure, see 57 Mercer L. Rev. 35 (2005). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 73 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11, 103 (2006). For survey article on appellate practice and procedure, see 59 Mercer L. Rev. 21 (2007). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on administrative law, see 60 Mercer L. Rev. 1 (2008). For survey article on appellate practice and procedure, see 60 Mercer L. Rev. 21 (2008). For annual survey on appellate practice and procedure, see 61 Mercer L. Rev. 31 (2009). For annual survey on domestic relations, see 61 Mercer L. Rev. 117 (2009). For annual survey of law on appellate practice and procedure, see 62 Mercer L. Rev. 25 (2010). For article, "Appellate Practice and Procedure," see 63 Mercer L. Rev. 67 (2011). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For annual survey on trial practice and procedure, see 65 Mercer L. Rev. 277 (2013). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 109 (2016). For article, "Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals," see 68 Mercer L. Rev. 1 (2016). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019). For annual survey on domestic relations, see 71 Mercer L. Rev. 83 (2019). For annual survey on trial practice and procedure, see 71 Mercer L. Rev. 305 (2019). For note, "Give It to Me, I'm Worth It: The Need to Amend Georgia's Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector," see 52 Ga. L. Rev. 267 (2017). For comment on Sayers v. Rothberg, 222 Ga. 626, 151 S.E.2d 445 (1967), see 3 Ga. St. B.J. 489 (1967). For comment on Milholland v. Oglesby, 223 Ga. 230, 154 S.E.2d 194 (1967), see 4 Ga. St. B.J. 392 (1968).
JUDICIAL DECISIONSANALYSIS
General Consideration
Final judgment confirming arbitration award was directly appealable.
- Court of Appeals had jurisdiction over an attorney's appeal from a final order and judgment of a superior court confirming an arbitration award of the Georgia State Bar Committee on the Arbitration of Fee Disputes in favor of a client's mother's estate because the appeal was from a final judgment of a superior court affirming the award under O.C.G.A. § 9-9-16 and was directly appealable under O.C.G.A. § 5-6-34(a)(1). McFarland v. Roberts, 335 Ga. App. 40, 778 S.E.2d 349 (2015), cert. denied, No. S16C0522, 2016 Ga. LEXIS 229 (Ga. 2016).
Cited in Gibson v. Hodges, 221 Ga. 779, 147 S.E.2d 329 (1966); Birdwell v. Pippen, 113 Ga. App. 202, 147 S.E.2d 673 (1966); Seaton v. Redisco, Inc., 113 Ga. App. 256, 147 S.E.2d 828 (1966); Williams v. Shaffer, 222 Ga. 334, 149 S.E.2d 668 (1966); Knopp v. Knopp, 222 Ga. 388, 149 S.E.2d 680 (1966); Dawn Mem. Park v. Southern Cem. Consultants of Ga., Inc., 113 Ga. App. 814, 149 S.E.2d 760 (1966); White Oak Acres, Inc. v. Campbell, 113 Ga. App. 833, 149 S.E.2d 870 (1966); Algernon Blair, Inc. v. National Sur. Corp., 222 Ga. 672, 151 S.E.2d 724 (1966); Undercofler v. Grantham Transf. Co., 222 Ga. 654, 151 S.E.2d 765 (1966); Hartsfield Co. No. 3, Inc. v. Williams, 114 Ga. App. 547, 151 S.E.2d 908 (1966); Kahn v. Graper, 114 Ga. App. 572, 152 S.E.2d 10 (1966); State Hwy. Dep't v. Kirchmeyer, 114 Ga. App. 433, 152 S.E.2d 17 (1966); Richmond County Bus. Ass'n v. Richmond County, 222 Ga. 772, 152 S.E.2d 738 (1966); Undercofler v. Grantham Transf. Co., 114 Ga. App. 868, 152 S.E.2d 900 (1966); Wiggin v. Wiggin, 223 Ga. 63, 153 S.E.2d 306 (1967); Nunn v. National Life & Accident Ins. Co., 115 Ga. App. 131, 153 S.E.2d 730 (1967); Norbo Trading Corp. v. Wohlmuth, 223 Ga. 258, 154 S.E.2d 224 (1967); Dudley v. Sears, Roebuck & Co., 115 Ga. App. 411, 154 S.E.2d 699 (1967); Garnto v. German, 115 Ga. App. 418, 154 S.E.2d 742 (1967); Griffith v. Morgan, 115 Ga. App. 518, 154 S.E.2d 822 (1967); Hulsey v. Smith, 223 Ga. 522, 156 S.E.2d 353 (1967); Nye v. Murcel Mfg. Co., 116 Ga. App. 44, 156 S.E.2d 383 (1967); Kirkman v. Miller, 116 Ga. App. 78, 156 S.E.2d 558 (1967); Hayes v. State, 116 Ga. App. 260, 157 S.E.2d 30 (1967); Rogers v. Johnson, 116 Ga. App. 295, 157 S.E.2d 48 (1967); State Hwy. Dep't v. Thomason, 116 Ga. App. 330, 157 S.E.2d 503 (1967); Biddinger v. Fletcher, 116 Ga. App. 532, 157 S.E.2d 764 (1967); Graves v. State, 116 Ga. App. 494, 157 S.E.2d 801 (1967); Wilbanks v. State, 116 Ga. App. 698, 158 S.E.2d 274 (1967); Harrington v. Frye, 116 Ga. App. 755, 159 S.E.2d 84 (1967); Passmore v. Truman & Smith Inst., Inc., 116 Ga. App. 803, 159 S.E.2d 92 (1967); Peacock Constr. Co. v. Turner Concrete, Inc., 116 Ga. App. 822, 159 S.E.2d 114 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967); Veal v. Paulk, 117 Ga. App. 109, 159 S.E.2d 304 (1968); Davis v. Holt, 224 Ga. 55, 159 S.E.2d 403 (1968); Titshaw v. Carnes, 224 Ga. 57, 159 S.E.2d 420 (1968); Watson v. Parke, Davis & Co., 117 Ga. App. 162, 159 S.E.2d 446 (1968); Williams v. State, 117 Ga. App. 79, 159 S.E.2d 454 (1968); Wright v. Collins, 117 Ga. App. 105, 159 S.E.2d 468 (1968); Robert Chuckrow Constr. Co. v. Gough, 117 Ga. App. 140, 159 S.E.2d 469 (1968); First Fed. Sav. & Loan Ass'n v. First Nat'l Bank, 224 Ga. 150, 160 S.E.2d 372 (1968); Lloyd Indus., Inc. v. O'Neal Steel, Inc., 117 Ga. App. 328, 160 S.E.2d 433 (1968); Zappa v. Ewing, 117 Ga. App. 362, 160 S.E.2d 640 (1968); Whitus v. State, 117 Ga. App. 359, 160 S.E.2d 839 (1968); Woods v. State, 117 Ga. App. 546, 160 S.E.2d 922 (1968); Housing Auth. v. Hindman, 224 Ga. 246, 161 S.E.2d 292 (1968); McLeod v. Westmoreland, 117 Ga. App. 659, 161 S.E.2d 335 (1968); Graham v. Haley, 224 Ga. 498, 162 S.E.2d 346 (1968); Howard v. Thomas, 224 Ga. 515, 162 S.E.2d 721 (1968); Vulcan Life & Accident Ins. Co. v. United Banking Co., 118 Ga. App. 36, 162 S.E.2d 798 (1968); Young v. Reese, 118 Ga. App. 114, 162 S.E.2d 831 (1968); Wells v. Johnson, 118 Ga. App. 168, 162 S.E.2d 837 (1968); George v. Lee, 118 Ga. App. 302, 163 S.E.2d 262 (1968); Califon Constr. Co. v. Highland Apts., 224 Ga. 610, 163 S.E.2d 744 (1968); Collins v. Southside Lumber Co., 118 Ga. App. 342, 163 S.E.2d 755 (1968); Rockmart Fin. Co. v. High, 118 Ga. App. 351, 163 S.E.2d 758 (1968); Berg v. Berg, 118 Ga. App. 353, 163 S.E.2d 888 (1968); Nugent v. Willis, 118 Ga. App. 335, 163 S.E.2d 891 (1968); Babb v. International Shoe Co., 118 Ga. App. 346, 163 S.E.2d 893 (1968); Lloyd Indus., Inc. v. O'Neal Steel, Inc., 118 Ga. App. 377, 163 S.E.2d 894 (1968); Greene v. Atlantis Realty Co., 118 Ga. App. 400, 163 S.E.2d 895 (1968); Goldberg v. Monroe, 224 Ga. 693, 164 S.E.2d 123 (1968); Lamas Co. v. Baldwin, 118 Ga. App. 437, 164 S.E.2d 236 (1968); State Hwy. Dep't v. Rosenfeld, 118 Ga. App. 524, 164 S.E.2d 259 (1968); Clarke v. Robinson, 118 Ga. App. 525, 164 S.E.2d 260 (1968); Tenneco Oil Co. v. Mullis, 118 Ga. App. 540, 164 S.E.2d 312 (1968); Mize v. Rampey, 224 Ga. 806, 164 S.E.2d 816 (1968); Davis v. Dixon, 118 Ga. App. 587, 164 S.E.2d 875 (1968); Nevels v. Engram, 118 Ga. App. 644, 164 S.E.2d 916 (1968); Georgia Hwy. Express Co. v. Do-All Chem. Co., 118 Ga. App. 736, 165 S.E.2d 429 (1968); Terry v. Warner Robins Supply Co., 225 Ga. 5, 165 S.E.2d 731 (1969); Harris v. State, 118 Ga. App. 848, 166 S.E.2d 94 (1969); Housing Auth. v. Baker, 119 Ga. App. 109, 166 S.E.2d 437 (1969); D.G. Mach. & Gage Co. v. Hardy, 119 Ga. App. 194, 166 S.E.2d 580 (1969); Dorsey v. Hood, 119 Ga. App. 237, 166 S.E.2d 635 (1969); Nalley v. Aiken, 119 Ga. App. 406, 167 S.E.2d 239 (1969); McKinnon v. Neugent, 225 Ga. 215, 167 S.E.2d 593 (1969); Brundage v. Wilkins, 119 Ga. App. 529, 167 S.E.2d 612 (1969); Lowery v. Adams, 225 Ga. 248, 167 S.E.2d 636 (1969); D. Davis & Co. v. Plunkett, 119 Ga. App. 453, 167 S.E.2d 663 (1969); Davis v. Roper, 119 Ga. App. 442, 167 S.E.2d 685 (1969); McKenzie v. McKenzie, 225 Ga. 314, 168 S.E.2d 152 (1969); Knight v. William Summerlin Co., 119 Ga. App. 575, 168 S.E.2d 179 (1969); Carden v. LaGrone, 225 Ga. 365, 169 S.E.2d 168 (1969); Hobgood v. Mitchell, 119 Ga. App. 827, 169 S.E.2d 173 (1969); Shepherd v. Shepherd, 225 Ga. 455, 169 S.E.2d 314 (1969); O'Neal Steel, Inc. v. Smith, 120 Ga. App. 106, 169 S.E.2d 827 (1969); Floyd v. Floyd, 120 Ga. App. 292, 170 S.E.2d 310 (1969); Eastland v. Candler, 225 Ga. 585, 170 S.E.2d 422 (1969); Peacock Constr. Co. v. Turner Concrete, Inc., 120 Ga. App. 357, 170 S.E.2d 440 (1969); State Hwy. Dep't v. Rosenfeld, 120 Ga. App. 439, 170 S.E.2d 837 (1969); Glynn Plymouth, Inc. v. Davis, 120 Ga. App. 475, 170 S.E.2d 848 (1969); Hammock v. Hammock, 225 Ga. 698, 171 S.E.2d 314 (1969); Aikens v. State, 226 Ga. 34, 172 S.E.2d 430 (1970); Skylark Enters., Inc. v. Marsh & McLennan, Inc., 121 Ga. App. 235, 173 S.E.2d 421 (1970); Grimes v. Clark, 226 Ga. 195, 173 S.E.2d 686 (1970); Chrysler Motors Corp. v. Davis, 226 Ga. 221, 173 S.E.2d 691 (1970); Strayhorn v. Forsyth County Dep't of Family & Children Servs., 121 Ga. App. 444, 174 S.E.2d 216 (1970); Campbell v. Carroll, 121 Ga. App. 497, 174 S.E.2d 375 (1970); Veal v. Paulk, 121 Ga. App. 575, 174 S.E.2d 465 (1970); Barber v. Dunn, 226 Ga. 303, 174 S.E.2d 898 (1970); Brooks v. Holman, 121 Ga. App. 720, 175 S.E.2d 131 (1970); Merchants & Mfrs. Transf. Co. v. Auto Rental & Leasing, Inc., 121 Ga. App. 729, 175 S.E.2d 156 (1970); Thomas v. State, 226 Ga. 529, 175 S.E.2d 874 (1970); Pilgreen's Airport, Inc. v. Gold, 122 Ga. App. 194, 176 S.E.2d 480 (1970); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 176 S.E.2d 487 (1970); American Bank v. Gray, 122 Ga. App. 443, 177 S.E.2d 208 (1970); Adamson v. Adamson, 226 Ga. 719, 177 S.E.2d 241 (1970); Royal Peacock Social Club, Inc. v. City of Atlanta, 226 Ga. 817, 177 S.E.2d 664 (1970); Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); Residential Devs., Inc. v. Dodd, 122 Ga. App. 674, 178 S.E.2d 333 (1970); Fleming v. State, 122 Ga. App. 727, 178 S.E.2d 556 (1970); Grant v. Huff, 122 Ga. App. 783, 178 S.E.2d 734 (1970); Martin v. McCartney, 122 Ga. App. 785, 178 S.E.2d 747 (1970); Holmes v. Holmes, 227 Ga. 238, 179 S.E.2d 775 (1971); J.D. Jewell, Inc. v. State ex rel. Hancock, 227 Ga. 336, 180 S.E.2d 704 (1971); Barnett v. State, 123 Ga. App. 369, 180 S.E.2d 921 (1971); Edwards v. Wheaton, 227 Ga. 424, 181 S.E.2d 48 (1971); Norman v. Walker, 123 Ga. App. 413, 181 S.E.2d 310 (1971); Akins v. Tucker, 227 Ga. 503, 181 S.E.2d 366 (1971); Cook v. Peeples, 227 Ga. 473, 181 S.E.2d 375 (1971); Parrish v. Clements, 123 Ga. App. 495, 181 S.E.2d 510 (1971); Smith v. Clark, 123 Ga. App. 458, 181 S.E.2d 551 (1971)
Lowe v. Lowe, 123 Ga. App. 525, 181 S.E.2d 715 (1971); Petty v. Petty, 227 Ga. 521, 181 S.E.2d 859 (1971); Bekins Van Lines Co. v. Barlow, 123 Ga. App. 601, 181 S.E.2d 908 (1971); Cunningham v. Cansler, 123 Ga. App. 614, 181 S.E.2d 922 (1971); Pichulik v. Simpson, 123 Ga. App. 604, 181 S.E.2d 925 (1971); Allen v. Reynolds & Co., 123 Ga. App. 604, 181 S.E.2d 927 (1971); Love v. Harris, 123 Ga. App. 776, 182 S.E.2d 490 (1971); Petty v. State, 124 Ga. App. 125, 183 S.E.2d 82 (1971); White v. Wright, 124 Ga. App. 151, 183 S.E.2d 90 (1971); Wallace v. Graves, 227 Ga. 771, 183 S.E.2d 370 (1971); Savannah Bank & Trust Co. v. Keane, 124 Ga. App. 433, 184 S.E.2d 51 (1971); Williams v. Horn, 124 Ga. App. 485, 184 S.E.2d 198 (1971); Rush v. State, 124 Ga. App. 547, 184 S.E.2d 515 (1971); Russell v. Russell Transf. Co., 228 Ga. 478, 186 S.E.2d 101 (1971); Tinsley v. Jarrard, 124 Ga. App. 809, 186 S.E.2d 286 (1971); J.H. Ewing & Sons v. Montgomery, 124 Ga. App. 836, 186 S.E.2d 335 (1971); Grace Baptist Church of Marietta, Inc. v. Torco, Inc., 228 Ga. 581, 186 S.E.2d 865 (1972); Georgia Timberlands, Inc. v. Southern Airways Co., 125 Ga. App. 404, 188 S.E.2d 108 (1972); Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269 (1972); Brown v. Hemperley, 125 Ga. App. 828, 189 S.E.2d 131 (1972); Waggoner v. Bryant, 126 Ga. App. 85, 190 S.E.2d 88 (1972); McCurley v. State, 126 Ga. App. 335, 190 S.E.2d 631 (1972); Housing Auth. v. Marbut Co., 229 Ga. 403, 191 S.E.2d 785 (1972); Roy D. Warren Co. v. Wagnon, 126 Ga. App. 776, 191 S.E.2d 894 (1972); Bibb County v. McDaniel, 127 Ga. App. 129, 192 S.E.2d 544 (1972); Watson v. State, 229 Ga. 787, 194 S.E.2d 407 (1972); Hilliard v. State, 128 Ga. App. 157, 195 S.E.2d 772 (1973); Boggess v. Aetna Life Ins. Co., 128 Ga. App. 190, 196 S.E.2d 172 (1973); Georgia Power Co. v. Carden, 128 Ga. App. 347, 196 S.E.2d 477 (1973); Southern States, Inc. v. Thomason, 128 Ga. App. 667, 197 S.E.2d 429 (1973); Malcom v. Cotton, 128 Ga. App. 703, 197 S.E.2d 763 (1973); International Paper Co. v. Kight, 230 Ga. 720, 198 S.E.2d 681 (1973); Howell v. Harden, 129 Ga. App. 200, 198 S.E.2d 890 (1973); Trammell v. Elliott, 230 Ga. 841, 199 S.E.2d 194 (1973); Eddings v. Eddings, 230 Ga. 743, 199 S.E.2d 255 (1973); Pitts v. GMAC, 231 Ga. 54, 199 S.E.2d 902 (1973); Taylor v. Stapp, 231 Ga. 268, 201 S.E.2d 419 (1973); Amie v. Davis, 130 Ga. App. 177, 202 S.E.2d 581 (1973); Ellenberg v. Pinkerton's, Inc., 130 Ga. App. 254, 202 S.E.2d 701 (1973); Howell v. Harden, 231 Ga. 594, 203 S.E.2d 206 (1974); Retail Credit Co. v. United Family Life Ins. Co., 130 Ga. App. 524, 203 S.E.2d 760 (1974); Fleming v. Phoenix of Hartford Ins. Co., 130 Ga. App. 771, 204 S.E.2d 460 (1974); D.C.E. v. State, 130 Ga. App. 724, 204 S.E.2d 481 (1974); Alexander v. Blackmon, 232 Ga. 9, 205 S.E.2d 253 (1974); Gilson v. Mitchell, 131 Ga. App. 321, 205 S.E.2d 421 (1974); F.N. Roberts Corp. v. Turman, 131 Ga. App. 689, 206 S.E.2d 579 (1974); Unigard Mut. Ins. Co. v. Carroll, 131 Ga. App. 699, 206 S.E.2d 603 (1974); Walker v. Robinson, 232 Ga. 361, 207 S.E.2d 6 (1974); Townsend v. Orkin Exterminating Co., 131 Ga. App. 824, 207 S.E.2d 230 (1974); Walker's Ready Mix v. Lewis Bros. Gen. Contractors, 132 Ga. App. 147, 207 S.E.2d 628 (1974); M.K.H. v. State, 132 Ga. App. 143, 207 S.E.2d 645 (1974); Benefield v. Elder Bldg. Supply Co., 132 Ga. App. 195, 207 S.E.2d 678 (1974); Frank B. Wilder & Assoc. v. St. Joseph's Hosp., 132 Ga. App. 373, 208 S.E.2d 145 (1974); Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga. App. 297, 208 S.E.2d 258 (1974); Foely v. Shanahan, 133 Ga. App. 262, 211 S.E.2d 367 (1974); Termplan, Inc., Bolton v. Haynes, 133 Ga. App. 562, 211 S.E.2d 611 (1974); McMichael v. Georgia Power Co., 133 Ga. App. 593, 211 S.E.2d 632 (1974); Carroll v. Cates, 134 Ga. App. 10, 213 S.E.2d 120 (1975); Georgia Real Estate Comm'n v. Accelerated Courses in Real Estate, Inc., 234 Ga. 30, 214 S.E.2d 495 (1975); Board of Comm'rs v. Allgood, 234 Ga. 9, 214 S.E.2d 522 (1975); Hicks v. State, 234 Ga. 142, 214 S.E.2d 658 (1975); Sims v. State, 234 Ga. 177, 214 S.E.2d 902 (1975); Branch v. Housing Auth., 134 Ga. App. 906, 216 S.E.2d 633 (1975); Herring v. Herring, 234 Ga. 539, 216 S.E.2d 833 (1975); Mulligan v. Scott, 134 Ga. App. 815, 217 S.E.2d 307 (1975); Lee v. Morrison, 135 Ga. App. 72, 217 S.E.2d 395 (1975); Gamble v. United States Fid. & Guar. Co., 135 Ga. App. 85, 217 S.E.2d 403 (1975); Jackson v. Piper Aircraft Corp., 135 Ga. App. 86, 217 S.E.2d 404 (1975); Trump v. Scott Exterminating Co., 135 Ga. App. 473, 218 S.E.2d 149 (1975); Turner v. Harper, 234 Ga. 891, 218 S.E.2d 621 (1975); Merck v. Gober, 135 Ga. App. 591, 218 S.E.2d 641 (1975); Carter v. Pruitt, 235 Ga. 204, 219 S.E.2d 114 (1975); Swift Textiles, Inc. v. Lawson, 135 Ga. App. 799, 219 S.E.2d 167 (1975); Vowell v. Carmichael, 235 Ga. 387, 219 S.E.2d 732 (1975); Jones v. Young, 136 Ga. App. 21, 220 S.E.2d 24 (1975); Bouldin v. Mote, 136 Ga. App. 73, 220 S.E.2d 79 (1975); Pilgrim v. Brookfield West, Inc., 136 Ga. App. 619, 222 S.E.2d 137 (1975); Spikes v. Carter Realty Co., 136 Ga. App. 648, 222 S.E.2d 154 (1975); Herring v. Herring, 236 Ga. 43, 222 S.E.2d 331 (1976); Gordon v. Gordon, 236 Ga. 99, 222 S.E.2d 380 (1976); Smith v. Republic Land & Inv. Corp., 137 Ga. App. 265, 223 S.E.2d 459 (1976); Tingle v. Lokey & Bowden, 137 Ga. App. 368, 223 S.E.2d 763 (1976); Anthony v. Anthony, 236 Ga. 508, 224 S.E.2d 349 (1976); Barnett v. Mobley, 236 Ga. 565, 224 S.E.2d 406 (1976); Hughes v. Star Bonding Co., 137 Ga. App. 661, 224 S.E.2d 863 (1976); Holcomb v. Trax, Inc., 138 Ga. App. 105, 225 S.E.2d 468 (1976); Hayes v. State, 138 Ga. App. 331, 226 S.E.2d 129 (1976); Taylor v. McBerry, 138 Ga. App. 593, 226 S.E.2d 607 (1976); Video Entertainment, Inc. v. Cartridge Rental Network, 138 Ga. App. 540, 226 S.E.2d 794 (1976); Cox v. Wielder, 237 Ga. 131, 227 S.E.2d 40 (1976); Roach-Russell, Inc. v. A.B.R. Metals & Servs., Inc., 138 Ga. App. 653, 227 S.E.2d 75 (1976); Richert v. Hill Aircraft & Leasing Corp., 138 Ga. App. 638, 227 S.E.2d 83 (1976); McKibben v. Thomas, 138 Ga. App. 544, 227 S.E.2d 87 (1976); U.S.I.F. Atlanta Corp. v. Paul, 138 Ga. App. 625, 227 S.E.2d 90 (1976); Chambers v. Lowe's of Doraville, Inc., 138 Ga. App. 626, 227 S.E.2d 92 (1976); Rose v. McGuffie, 138 Ga. App. 664, 227 S.E.2d 94 (1976); Bank of Commerce v. Williams, 138 Ga. App. 666, 227 S.E.2d 95 (1976); Pendley v. Hunter, 138 Ga. App. 864, 227 S.E.2d 857 (1976); Nash v. Carlile, 138 Ga. App. 906, 228 S.E.2d 4 (1976); Wright v. Wright, 139 Ga. App. 60, 228 S.E.2d 9 (1976); Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976); Cooper v. Colquitt County Sheriff's Dep't, 139 Ga. App. 592, 229 S.E.2d 100 (1976); Dempsey v. Bradley Center, Inc., 139 Ga. App. 615, 229 S.E.2d 104 (1976); Stancil v. Hudson Oil Co., 139 Ga. App. 632, 229 S.E.2d 113 (1976); Associated Architects, Inc. v. Holland, 139 Ga. App. 793, 229 S.E.2d 674 (1976); Clary v. Brown, 139 Ga. App. 799, 229 S.E.2d 680 (1976); Brooks v. State, 140 Ga. App. 371, 231 S.E.2d 138 (1976); Paris v. Citizens & S. Nat'l Bank, 140 Ga. App. 417, 231 S.E.2d 357 (1976); Rollins Communications, Inc. v. Henderson, Few & Co., 140 Ga. App. 504, 231 S.E.2d 412 (1976); Georgia Heart Ass'n v. State Farm Mut. Auto. Ins. Co., 140 Ga. App. 860, 232 S.E.2d 271 (1976); DOT v. Knight, 238 Ga. 225, 232 S.E.2d 72 (1977); Benz v. Quality Elec. Serv., Inc., 141 Ga. App. 15, 232 S.E.2d 364 (1977); Guthrie v. Monumental Properties, Inc., 141 Ga. App. 25, 232 S.E.2d 372 (1977); Herring v. Standard Guar. Ins. Co., 238 Ga. 261, 232 S.E.2d 544 (1977); Kristensen v. Kristensen, 238 Ga. 294, 232 S.E.2d 564 (1977); Myers v. Fenters, 141 Ga. App. 153, 233 S.E.2d 63 (1977); Dan Austin Properties, Inc. v. Glen Pines, Inc., 238 Ga. 416, 233 S.E.2d 195 (1977); Trust Co. v. Ferrior, 141 Ga. App. 328, 233 S.E.2d 280 (1977); Pennsylvania Poorboy, Inc. v. Robbins Restaurant, Inc., 238 Ga. 539, 233 S.E.2d 791 (1977); Wall v. T.J.B. Servs., Inc., 141 Ga. App. 437, 233 S.E.2d 810 (1977)
Venable v. Block, 141 Ga. App. 523, 233 S.E.2d 878 (1977); Smith v. Telecable of Columbus, Inc., 238 Ga. 559, 234 S.E.2d 24 (1977); Ford Motor Credit Co. v. Hunt, 141 Ga. App. 612, 234 S.E.2d 112 (1977); Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (1977); Smith v. State, 238 Ga. 655, 235 S.E.2d 375 (1977); Moreland v. Gillis, 238 Ga. 658, 235 S.E.2d 375 (1977); First Nat'l Bank v. Ferrell, 239 Ga. 8, 235 S.E.2d 507 (1977); Smith v. Smith, 239 Ga. 38, 235 S.E.2d 526 (1977); Dehler v. Setliff, 239 Ga. 19, 235 S.E.2d 540 (1977); Pascoe Steel Corp. v. Turner County Bd. of Educ., 142 Ga. App. 88, 235 S.E.2d 554 (1977); Strother v. Hill Aircraft & Leasing Corp., 142 Ga. App. 206, 235 S.E.2d 647 (1977); Northcutt v. Citizens & S. Nat'l Bank, 142 Ga. App. 358, 235 S.E.2d 687 (1977); Stallings v. Chance, 142 Ga. App. 491, 236 S.E.2d 110 (1977); Mahler v. Paquin, 142 Ga. App. 582, 236 S.E.2d 512 (1977); Anthony v. Anthony, 239 Ga. 273, 236 S.E.2d 621 (1977); J.T.M. v. State, 142 Ga. App. 635, 236 S.E.2d 764 (1977); West v. Life Ins. Co., 142 Ga. App. 877, 237 S.E.2d 239 (1977); Price v. Winn, 142 Ga. App. 790, 237 S.E.2d 409 (1977); Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977); Middleton v. State Farm Life Ins. Co., 143 Ga. App. 176, 237 S.E.2d 684 (1977); State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977); Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977); Herring v. Herring, 143 Ga. App. 286, 238 S.E.2d 240 (1977); Silverstein v. Silverstein, 239 Ga. 840, 239 S.E.2d 24 (1977); Georgia Cent. Credit Union v. Cole, 239 Ga. 870, 239 S.E.2d 37 (1977); Shipp v. World Automotive, Inc., 144 Ga. App. 38, 240 S.E.2d 590 (1977); Maheia v. Weeks, 144 Ga. App. 199, 240 S.E.2d 752 (1977); Mathews v. Fidelcor Mtg. Corp., 144 Ga. App. 140, 240 S.E.2d 758 (1977); Williams v. Ray, 144 Ga. App. 634, 241 S.E.2d 502 (1978); Goolsby v. Oakes, 240 Ga. 493, 241 S.E.2d 836 (1978); Williams v. Duke, 240 Ga. 569, 242 S.E.2d 67 (1978); Wood v. Wood, 240 Ga. 861, 242 S.E.2d 599 (1978); Martin v. Cullum, 144 Ga. App. 886, 243 S.E.2d 108 (1978); Dein v. Citizens Jewelry Co., 145 Ga. App. 118, 243 S.E.2d 286 (1978); Georgia Power Co. v. Worthington, 145 Ga. App. 44, 243 S.E.2d 297 (1978); National Life & Accident Ins. Co. v. Rouse, 145 Ga. App. 40, 243 S.E.2d 300 (1978); Ralston Purina Co. v. Davis, 145 Ga. App. 110, 243 S.E.2d 317 (1978); Loftin v. Carrollton State Bank, 145 Ga. App. 166, 243 S.E.2d 333 (1978); Associate Architects, Inc. v. Holland, 145 Ga. App. 210, 243 S.E.2d 573 (1978); Ansaldi v. Dexter, 145 Ga. App. 557, 244 S.E.2d 98 (1978); Stone v. Citizens & S. Nat'l Bank, 145 Ga. App. 601, 244 S.E.2d 135 (1978); Odom v. Odom, 241 Ga. 451, 246 S.E.2d 308 (1978); Diversified One Investors, Ltd. v. Archway Properties, Inc., 146 Ga. App. 453, 246 S.E.2d 462 (1978); Alesi v. Conant, 146 Ga. App. 455, 246 S.E.2d 464 (1978); Sumner v. Adel Banking Co., 241 Ga. 563, 246 S.E.2d 680 (1978); Bozard v. J.A. Jones Constr. Co., 146 Ga. App. 877, 247 S.E.2d 605 (1978); C. & S. Nat'l Bank v. Levitz Furn. of E. Region, Inc., 147 Ga. App. 295, 248 S.E.2d 556 (1978); Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676 (1978); Sumter County Bd. of Educ. v. Mosley, 147 Ga. App. 478, 249 S.E.2d 284 (1978); Zeesman v. Hobbs, 147 Ga. App. 644, 249 S.E.2d 697 (1978); Community Educ. Center v. Cohen, 148 Ga. App. 131, 251 S.E.2d 97 (1978); Thum v. White, 148 Ga. App. 109, 251 S.E.2d 100 (1978); Shmunes v. Coffey Chevrolet & Oldsmobile, Inc., 148 Ga. App. 114, 251 S.E.2d 105 (1978); Williams v. State, 148 Ga. App. 176, 251 S.E.2d 130 (1978); Nager v. Lad'n Dad Slacks, 148 Ga. App. 401, 251 S.E.2d 330 (1978); Bozard v. J.A. Jones Constr. Co., 148 Ga. App. 425, 251 S.E.2d 362 (1978); Fulton County Dep't of Family & Children Servs. v. Perkins, 244 Ga. 237, 259 S.E.2d 427 (1978); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979); Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979); Garrett v. Heisler, 149 Ga. App. 240, 253 S.E.2d 863 (1979); E.M.I. Enters., Ltd. v. First Nat'l Bank, 149 Ga. App. 373, 254 S.E.2d 913 (1979); Roehl v. O'Keefe, 243 Ga. 696, 256 S.E.2d 375 (1979); Gunthorpe v. Daniels, 150 Ga. App. 113, 257 S.E.2d 199 (1979); Georgia Consumer Center, Inc. v. Georgia Power Co., 150 Ga. App. 511, 258 S.E.2d 250 (1979); Cox v. Farmers Bank, 151 Ga. App. 64, 258 S.E.2d 731 (1979); Smith v. Houston, 244 Ga. 113, 259 S.E.2d 93 (1979); Knox v. Knox, 151 Ga. App. 144, 259 S.E.2d 150 (1979); Duvall v. Baker, 244 Ga. 228, 259 S.E.2d 478 (1979); Trotman v. Spell, 151 Ga. App. 241, 259 S.E.2d 490 (1979); Pugh v. Frank Jackson Lincoln-Mercury, Inc., 151 Ga. App. 320, 259 S.E.2d 711 (1979); Petkas v. Piedmont-Linberg Corp., 151 Ga. App. 323, 259 S.E.2d 713 (1979); Wise v. Georgia State Bd. for Examination, Qualification & Registration of Architects, 244 Ga. 449, 260 S.E.2d 477 (1979); Sugarman v. Shaginaw, 151 Ga. App. 621, 260 S.E.2d 731 (1979); McDonald v. McDonald, 244 Ga. 453, 260 S.E.2d 853 (1979); Wallace v. Bledsoe, 244 Ga. 674, 261 S.E.2d 399 (1979); Lysius v. Bertha, 151 Ga. App. 702, 261 S.E.2d 459 (1979); Capital Bank v. Levy, 151 Ga. App. 819, 261 S.E.2d 722 (1979); Hardy v. Georgia Power Co., 151 Ga. App. 803, 261 S.E.2d 749 (1979); St. Clair v. Robert A. McNeil Corp., 151 Ga. App. 876, 261 S.E.2d 782 (1979); Thurman v. Unicure, Inc., 151 Ga. App. 880, 261 S.E.2d 785 (1979); Mullinax v. Standard Fire Ins. Co., 152 Ga. App. 425, 263 S.E.2d 231 (1979); Rothenberg v. Investco Int'l Corp., 152 Ga. App. 474, 263 S.E.2d 254 (1979); King Orthopedic Appliances, Inc. v. Medical Funding Servs., Inc., 152 Ga. App. 544, 263 S.E.2d 485 (1979); Autumn Breeze Nursing Home, Inc. v. Hale, 153 Ga. App. 176, 265 S.E.2d 79 (1980); Cobb Bank & Trust Co. v. Baier, 153 Ga. App. 194, 265 S.E.2d 82 (1980); Pace Constr. Corp. v. Houdaille-Duval-Wright Div., Houdaille Indus., Inc., 245 Ga. 696, 266 S.E.2d 504 (1980); Henderson v. Collins, 245 Ga. 776, 267 S.E.2d 202 (1980); Harwell v. Georgia Power Co., 154 Ga. App. 142, 267 S.E.2d 769 (1980); In re Norris, 154 Ga. App. 173, 267 S.E.2d 788 (1980); Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70, 270 S.E.2d 293 (1980); Green v. Green, 246 Ga. 218, 271 S.E.2d 151 (1980); Jack V. Heard Contractors, Inc. v. Adams Constr. Co., 155 Ga. App. 409, 271 S.E.2d 222 (1980); State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980); Holman v. Ruesken, 246 Ga. 557, 272 S.E.2d 292 (1980); Burke v. Probst, 246 Ga. 687, 272 S.E.2d 698 (1980); Estes v. John Bleakley Ford, Inc., 246 Ga. 747, 272 S.E.2d 703 (1980); Benson v. York, 246 Ga. 751, 272 S.E.2d 706 (1980); Citizens & S. Nat'l Bank v. Rayle, 246 Ga. 727, 273 S.E.2d 139 (1980); Bedford v. Bedford, 246 Ga. 780, 273 S.E.2d 167 (1980); Smith v. Forrester, 156 Ga. App. 79, 274 S.E.2d 101 (1980); Valdmanis v. Lawhon, 156 Ga. App. 646, 274 S.E.2d 169 (1980); Walker v. City of Atlanta, 156 Ga. App. 223, 274 S.E.2d 668 (1980); Johnson v. Gwinnett County Bank, 156 Ga. App. 597, 275 S.E.2d 157 (1980); Fields v. Tankersley, 487 F. Supp. 1389 (S.D. Ga. 1980); Gorrell v. Fowler, 247 Ga. 67, 273 S.E.2d 852 (1981); Habersham Fed. Sav. & Loan Ass'n v. Marcin, 156 Ga. App. 891, 276 S.E.2d 63 (1981); Ray v. Ray, 247 Ga. 467, 277 S.E.2d 495 (1981); Tabernacle Baptist Church v. Dorsey, 247 Ga. 675, 278 S.E.2d 378 (1981); Horne v. Drachman, 247 Ga. 802, 280 S.E.2d 338 (1981); Martin v. Herr, 158 Ga. App. 329, 280 S.E.2d 387 (1981); Kaigler v. Folsom, 158 Ga. App. 311, 281 S.E.2d 250 (1981); Bullock v. City of Dallas, 248 Ga. 164, 281 S.E.2d 613 (1981); Bell v. Rodgers, 158 Ga. App. 507, 281 S.E.2d 647 (1981); Citibank v. Hill, 158 Ga. App. 574, 281 S.E.2d 650 (1981); Carmichael v. Carmichael, 248 Ga. 216, 282 S.E.2d 71 (1981); McDowell v. State, 158 Ga. App. 712, 282 S.E.2d 125 (1981); Pierce v. Gaskins, 158 Ga. App. 864, 282 S.E.2d 776 (1981); Commercial Union Assurance Cos. v. Holbert, 159 Ga. App. 374, 283 S.E.2d 337 (1981); Sanders v. Colwell, 248 Ga. 376, 283 S.E.2d 461 (1981)
Cole v. Sheraton Atlanta Corp., 159 Ga. App. 439, 283 S.E.2d 668 (1981); Walker v. Walker, 159 Ga. App. 583, 284 S.E.2d 89 (1981); Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981); Deans v. Kingston Dev. Corp., 248 Ga. 557, 285 S.E.2d 11 (1981); Attwell v. Sears, Roebuck & Co., 159 Ga. App. 811, 285 S.E.2d 199 (1981); Coffey Enter. Realty & Dev. Co. v. DOT, 159 Ga. App. 903, 286 S.E.2d 44 (1981); Grantham v. Nelson, 160 Ga. App. 68, 286 S.E.2d 59 (1981); Atlanta News Agency, Inc. v. MacConochie Constr. Co., 160 Ga. App. 306, 287 S.E.2d 314 (1981); Theo v. DOT, 160 Ga. App. 518, 287 S.E.2d 333 (1981); City of Atlanta v. West, 160 Ga. App. 609, 287 S.E.2d 558 (1981); Georgia Farm Bureau Mut. Ins. Co. v. Stevenson, 160 Ga. App. 805, 287 S.E.2d 662 (1982); Cohran v. Jones, 160 Ga. App. 761, 288 S.E.2d 80 (1981); Cohran v. Carlin, 160 Ga. App. 762, 288 S.E.2d 81 (1981); Underhill v. Barnes, 161 Ga. App. 776, 288 S.E.2d 905 (1982); Teledyne Indus., Inc. v. Patron Aviation, Inc., 161 Ga. App. 596, 288 S.E.2d 911 (1982); Wiley v. Williams, 161 Ga. App. 601, 289 S.E.2d 27 (1982); Small v. Auto Rental & Leasing, Inc., 248 Ga. 665, 289 S.E.2d 246 (1981); Widener v. Ravenscroft, 161 Ga. App. 12, 289 S.E.2d 257 (1982); Fagala v. Morrison, 161 Ga. App. 655, 289 S.E.2d 528 (1982); Calloway v. Calloway, 161 Ga. App. 752, 289 S.E.2d 559 (1982); Lockman v. Catawba Ins. Co., 162 Ga. App. 244, 291 S.E.2d 99 (1982); In re L.B.B., 162 Ga. App. 257, 291 S.E.2d 108 (1982); Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982); Equitable Life Assurance Soc'y v. Sullivan, 164 Ga. App. 552, 292 S.E.2d 567 (1982); Thomas v. Waldrup, 162 Ga. App. 721, 293 S.E.2d 354 (1982); Smiley v. State, 164 Ga. App. 12, 296 S.E.2d 209 (1982); Marshall Erdman & Assocs. v. Georgia State Bd. for Examination, Qualification & Registration of Architects, 164 Ga. App. 283, 296 S.E.2d 219 (1982); Northside Cleaners, Inc. v. Paleologou, 163 Ga. App. 827, 296 S.E.2d 361 (1982); Echols v. State, 163 Ga. App. 905, 296 S.E.2d 366 (1982); Wallace v. Scott, 164 Ga. App. 129, 296 S.E.2d 423 (1982); Westberry v. Saunders, 250 Ga. 240, 296 S.E.2d 596 (1982); Chadwick v. Frix, 165 Ga. App. 20, 299 S.E.2d 93 (1983); Fast Freight Transf., Inc. v. Buffington, 165 Ga. App. 138, 299 S.E.2d 422 (1983); Equitable Life Assurance Soc'y v. Sullivan, 165 Ga. App. 223, 299 S.E.2d 615, cert. denied, Wills v. McAuley, 166 Ga. App. 4, 303 S.E.2d 26, 251 Ga. 41, 305 S.E.2d 120 (1983); Georgia Farm Bureau Mut. Ins. Co. v. Ritchie, 165 Ga. App. 298, 300 S.E.2d 550 (1983); Whatley v. Blue Cross of Ga./Columbus, Inc., 165 Ga. App. 340, 301 S.E.2d 60 (1983); Smith v. Smith, 162 Ga. App. 532, 301 S.E.2d 696 (1983); Phillips Constr. Co. v. Cowart Iron Works, Inc., 165 Ga. App. 605, 302 S.E.2d 142 (1983); Porter v. Calhoun County Bd. of Comm'rs, 167 Ga. App. 53, 306 S.E.2d 58 (1983); Union Indem. Ins. Co. v. Cherokee Ins. Co., 168 Ga. App. 82, 308 S.E.2d 238 (1983); Regante v. Reliable-Triple Cee of N.J., Inc., 251 Ga. 629, 308 S.E.2d 372 (1983); Scott v. Liberty Mut. Ins. Co., 168 Ga. App. 815, 310 S.E.2d 772 (1983); Jones v. Singleton, 253 Ga. 41, 316 S.E.2d 154 (1984); Beckman v. Black, 170 Ga. App. 193, 316 S.E.2d 784 (1984); Howard v. Collins, 170 Ga. App. 362, 317 S.E.2d 630 (1984); Miller v. State, 171 Ga. App. 222, 319 S.E.2d 79 (1984); Schieffelin & Co. v. Strickland, 253 Ga. 385, 320 S.E.2d 358 (1984); United Food & Com. Workers Union v. Amberjack Ltd., 253 Ga. 438, 321 S.E.2d 736 (1984); Carter v. Landel/Arundel, Inc., 172 Ga. App. 115, 322 S.E.2d 108 (1984); Life for God's Stray Animals, Inc. v. New N. Rockdale County Homeowners Ass'n, 253 Ga. 551, 322 S.E.2d 239 (1984); State v. Cook, 172 Ga. App. 433, 323 S.E.2d 634 (1984); Welch v. State, 172 Ga. App. 654, 324 S.E.2d 488 (1984); Calhoun Clinic, P.C. v. Raju, 173 Ga. App. 320, 326 S.E.2d 529 (1985); Cable Holdings of Battlefield, Inc. v. Lookout Cable Serv., Inc., 173 Ga. App. 355, 326 S.E.2d 552 (1985); James v. Allen, 173 Ga. App. 636, 327 S.E.2d 501 (1985); Collier v. Rogers, 173 Ga. App. 621, 327 S.E.2d 588 (1985); Malpass v. State, 173 Ga. App. 690, 327 S.E.2d 753 (1985); Robinson v. Robinson, 174 Ga. App. 656, 331 S.E.2d 8 (1985); Olympic Dev. Group, Inc. v. American Druggists' Ins. Co., 175 Ga. App. 425, 333 S.E.2d 622 (1985); State v. Thomas, 176 Ga. App. 106, 335 S.E.2d 697 (1985); Pinyan v. Hamby, 176 Ga. App. 411, 336 S.E.2d 331 (1985); Boatright v. Sunshine Toyota, Inc., 177 Ga. App. 332, 339 S.E.2d 275 (1985); Brown v. Associates Fin. Servs. Corp., 255 Ga. 457, 339 S.E.2d 590 (1986); All Am. Assurance Co. v. Brown, 177 Ga. App. 402, 339 S.E.2d 611 (1985); Butler v. Gray, 177 Ga. App. 498, 339 S.E.2d 769 (1986); Barikos v. Vanderslice, 177 Ga. App. 884, 341 S.E.2d 513 (1986); Nazerian v. City of McCaysville, 178 Ga. App. 27, 342 S.E.2d 11 (1986); Days Inn of Am., Inc. v. Sharkey, 178 Ga. App. 718, 344 S.E.2d 518 (1986); Sidwell v. Wheeler, 178 Ga. App. 732, 344 S.E.2d 527 (1986); Preferred Risk Mut. Ins. Co. v. Laube, 181 Ga. App. 579, 353 S.E.2d 203 (1987); Crolley v. State, 182 Ga. App. 2, 354 S.E.2d 864 (1987); Neal v. State, 182 Ga. App. 37, 354 S.E.2d 664 (1987); Powell v. State, 182 Ga. App. 123, 355 S.E.2d 72 (1987); Travelers Indem. Co. v. Schenden, 182 Ga. App. 735, 356 S.E.2d 761 (1987); Georgia Am. Ins. Co. v. Mills, 183 Ga. App. 707, 359 S.E.2d 697 (1987); Isaacs v. State, 257 Ga. 798, 364 S.E.2d 567 (1988); Hardman v. Hardman, 185 Ga. App. 519, 364 S.E.2d 645 (1988); Stewart v. State, 185 Ga. App. 647, 365 S.E.2d 498 (1988); Gourmet Delights, Inc. v. Edgewater Country Club, Inc., 185 Ga. App. 660, 365 S.E.2d 514 (1988); Crolley v. Johnson, 185 Ga. App. 671, 365 S.E.2d 277 (1988); Jonquil City Contractors v. Augustine, 186 Ga. App. 915, 369 S.E.2d 55 (1988); Leeks v. State, 188 Ga. App. 625, 373 S.E.2d 777 (1988); Atlanta Dev. Co. v. Peel & Sons, 189 Ga. App. 453, 377 S.E.2d 552 (1988); Baynes v. State, 189 Ga. App. 797, 377 S.E.2d 708 (1989); Simons v. Equitec Properties Co., 190 Ga. App. 804, 380 S.E.2d 90 (1989); Reese v. Georgia Power Co., 191 Ga. App. 125, 381 S.E.2d 110 (1989); Klein v. Standard Fire Ins. Co., 191 Ga. App. 417, 382 S.E.2d 158 (1989); LDS Social Servs. Corp. v. Richins, 191 Ga. App. 695, 382 S.E.2d 607 (1989); Abercrombie v. Miller, 191 Ga. App. 858, 383 S.E.2d 358 (1989); Camelback Mgt. Co. v. Phoenix Periodicals, Inc., 192 Ga. App. 101, 383 S.E.2d 651 (1989); Mitchell v. Wyatt, 192 Ga. App. 127, 384 S.E.2d 227 (1989); Friedman v. Friedman, 259 Ga. 530, 384 S.E.2d 641 (1989); McClure v. Gower, 259 Ga. 678, 385 S.E.2d 271 (1989); Pettus v. Paylay, Frank & Brown, 193 Ga. App. 335, 387 S.E.2d 613 (1989); DOT v. B & G Realty, Inc., 193 Ga. App. 649, 388 S.E.2d 749 (1989); First Union Nat'l Bank v. Cumberland Creek Country Club, 194 Ga. App. 332, 390 S.E.2d 422 (1990); Lewis v. McDowell, 194 Ga. App. 429, 390 S.E.2d 605 (1990); Barber v. Collins, 194 Ga. App. 385, 390 S.E.2d 633 (1990); Raymer v. Foster & Cooper, Inc., 195 Ga. App. 200, 393 S.E.2d 49 (1990); Monroe v. Brooks, 195 Ga. App. 310, 393 S.E.2d 463 (1990); Wallace v. Meyer, 260 Ga. 253, 394 S.E.2d 350 (1990); Miller v. Jeff Davis Apts., Ltd. II, 196 Ga. App. 600, 396 S.E.2d 494 (1990); Atlantic Wood Indus., Inc. v. Lumbermen's Underwriting Alliance, 196 Ga. App. 503, 396 S.E.2d 541 (1990); Acme Fence Co. v. DOT, 197 Ga. App. 187, 397 S.E.2d 622 (1990); International Serv. Ins. Co. v. Harter, 197 Ga. App. 481, 398 S.E.2d 705 (1990); Aetna Cas. & Sur. Co. v. Cantrell, 197 Ga. App. 672, 399 S.E.2d 237 (1990); Landor Condominium Consultants, Inc. v. Bankers First Fed. Sav. & Loan Ass'n, 198 Ga. App. 274, 401 S.E.2d 305 (1991); Williams v. Opriciu, 198 Ga. App. 663, 402 S.E.2d 744 (1991); Artis v. Gaither, 199 Ga. App. 114, 404 S.E.2d 322 (1991); Wood v. State, 199 Ga. App. 252, 404 S.E.2d 589 (1991); Hunter v. Roberts, 199 Ga. App. 318, 404 S.E.2d 645 (1991); Gillis v. Goodgame, 199 Ga. App. 413, 404 S.E.2d 815 (1991); In re J.B., 199 Ga. App. 593, 405 S.E.2d 574 (1991)
Serco Co. v. Choice Bumper, Inc., 199 Ga. App. 846, 406 S.E.2d 276 (1991); Lawson v. Athens Auto Supply & Elec., Inc., 200 Ga. App. 609, 409 S.E.2d 60 (1991); Sorrentino v. Boston Mut. Life Ins. Co., 206 Ga. App. 771, 426 S.E.2d 594 (1992); Lumbermen's Underwriting Alliance v. Atlantic Wood Indus., Inc., 207 Ga. App. 392, 427 S.E.2d 861 (1993); Wilson v. Southern Ry., 208 Ga. App. 598, 431 S.E.2d 383 (1993); Commerce Properties, Inc. v. Linthicum, 209 Ga. App. 853, 434 S.E.2d 769 (1993); Fairburn Banking Co. v. Gafford, 263 Ga. 792, 439 S.E.2d 482 (1994); Marshall v. Ricmar, Inc., 215 Ga. App. 470, 451 S.E.2d 515 (1994); Richardson v. GMC, 221 Ga. App. 583, 472 S.E.2d 143 (1996); Gist v. DeKalb Tire Co., 223 Ga. App. 397, 477 S.E.2d 616 (1996); Gray v. Springs, 224 Ga. App. 427, 481 S.E.2d 3 (1997); Andemeskel v. Waffle House, Inc., 227 Ga. App. 887, 490 S.E.2d 550 (1997); Postell v. State, 233 Ga. App. 800, 505 S.E.2d 782 (1998); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998); Reliance Ins. Co. v. Cobb County, 235 Ga. App. 685, 510 S.E.2d 129 (1998); Simmons Co. v. Deutsche Fin. Servs. Corp., 243 Ga. App. 85, 532 S.E.2d 436 (2000); Cobb Ctr. Pawn & Jewelry Brokers, Inc. v. Gordon, 242 Ga. App. 73, 529 S.E.2d 138 (2000); Keller v. State, 242 Ga. App. 150, 529 S.E.2d 167 (2000); Sprayberry v. Dougherty County, 273 Ga. 503, 543 S.E.2d 29 (2001); ARA Health Servs. v. Stitt, 250 Ga. App. 420, 551 S.E.2d 793 (2001); Chambers v. Gwinnett Cmty. Hosp., Inc., 253 Ga. App. 25, 557 S.E.2d 412 (2001); Benedict v. Snead, 253 Ga. App. 749, 560 S.E.2d 278 (2002); St. Paul Fire & Marine Ins. Co. v. Clark, 255 Ga. App. 14, 566 S.E.2d 2 (2002); S. Healthcare Sys., Inc. v. Health Care Capital Consol., Inc., 275 Ga. 247, 563 S.E.2d 132 (2002); The Limited, Inc. v. Learning Childbirth Ctr., 255 Ga. App. 688, 566 S.E.2d 411 (2002); DeKalb County v. Adams, 262 Ga. App. 243, 585 S.E.2d 178 (2003); Minor v. Barwick, 264 Ga. App. 327, 590 S.E.2d 754 (2003); Swanson v. Swanson, 276 Ga. 566, 580 S.E.2d 526 (2003); TJW Enters. v. Henry County, 261 Ga. App. 547, 583 S.E.2d 144 (2003); Frantz v. Piccadilly Place Condo. Ass'n, 278 Ga. 103, 597 S.E.2d 354 (2004); Williams v. Trammell, 281 Ga. App. 590, 636 S.E.2d 757 (2006); DaimlerChrysler v. Ferrante, 281 Ga. 273, 637 S.E.2d 659 (2006); Dierkes v. Crawford Orthodontic Care, P.C., 284 Ga. App. 96, 643 S.E.2d 364 (2007); Langfitt v. Jackson, 284 Ga. App. 628, 644 S.E.2d 460 (2007); Humphrey v. Wilson, 282 Ga. 520, 652 S.E.2d 501 (2007); McKesson Corp. v. Green, 286 Ga. App. 110, 648 S.E.2d 457 (2007); Ansley Marine Constr., Inc. v. Swanberg, 290 Ga. App. 388, 660 S.E.2d 6 (2008); Korowotny v. Outback Prop. Owners Ass'n, 291 Ga. App. 236, 661 S.E.2d 857 (2008); Ayer v. Norfolk Timber Inv., LLC, 291 Ga. App. 409, 662 S.E.2d 221 (2008); Spinner v. City of Dallas, 292 Ga. App. 251, 663 S.E.2d 815 (2008); Bunn v. State, 284 Ga. 410, 667 S.E.2d 605 (2008); City of Decatur v. DeKalb County, 284 Ga. 434, 668 S.E.2d 247 (2008); White v. Shamrock Bldg. Sys., 294 Ga. App. 340, 669 S.E.2d 168 (2008); Sampler v. State, 294 Ga. App. 174, 669 S.E.2d 195 (2008); Haygood v. Tilley, 295 Ga. App. 90, 670 S.E.2d 800 (2008); Treu v. Humanism Inv., Inc., 284 Ga. 657, 670 S.E.2d 409 (2008); Century Ctr. at Braselton, LLC v. Town of Braselton, 285 Ga. 380, 677 S.E.2d 106 (2009); State, DOT v. Douglas Asphalt Co., 297 Ga. App. 511, 677 S.E.2d 728 (2009); Anthony Hill Grading, Inc. v. SBS Invs., LLC, 297 Ga. App. 728, 678 S.E.2d 174 (2009); Croft v. Croft, 298 Ga. App. 303, 680 S.E.2d 150 (2009); State v. Burks, 285 Ga. 781, 684 S.E.2d 269 (2009); Harris v. Williams, 304 Ga. App. 390, 696 S.E.2d 131 (2010); Avery Enters. v. Lyndhurst Builders, LLC, 304 Ga. App. 353, 696 S.E.2d 389 (2010); Lumsden v. Williams, 307 Ga. App. 163, 704 S.E.2d 458 (2010); Nelson v. Bd. of Regents of the Univ. Sys. of Ga., 307 Ga. App. 220, 704 S.E.2d 868 (2010); Burnett v. State, 309 Ga. App. 422, 710 S.E.2d 624 (2011); Pierce v. State, 289 Ga. 893, 717 S.E.2d 202 (2011); Blackmore v. Blackmore, 311 Ga. App. 885, 717 S.E.2d 504 (2011); Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018); Heidt v. State, 292 Ga. 343, 736 S.E.2d 384 (2013); Metro Atlanta Task Force for the Homeless, Inc. v. Premium Funding Solutions, LLC, 321 Ga. App. 100, 741 S.E.2d 225 (2013); Sifuentes v. State, 293 Ga. 441, 746 S.E.2d 127 (2013); Miller v. GGNSC Atlanta, LLC, 323 Ga. App. 114, 746 S.E.2d 680 (2013); Williamson v. Williamson, 293 Ga. 721, 748 S.E.2d 679 (2013); Deal v. Coleman, 294 Ga. 170, 751 S.E.2d 337 (2013); Ford Motor Co. v. Conley, 294 Ga. 530, 757 S.E.2d 20 (2014); Bibb County v. Monroe County, 294 Ga. 730, 755 S.E.2d 760 (2014); Beringer v. Emory, 326 Ga. App. 260, 756 S.E.2d 329 (2014); Goodrich v. Bank of Am., N.A., 329 Ga. App. 41, 762 S.E.2d 628 (2014); BDO USA, LLP v. Coe, 329 Ga. App. 79, 763 S.E.2d 742 (2014); Park v. Bailey, 329 Ga. App. 569, 765 S.E.2d 721 (2014); Sentinel Offender Svcs., LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014); Williams v. State, 335 Ga. App. 468, 781 S.E.2d 791 (2016); Amoakuh v. Issaka, 299 Ga. 132, 786 S.E.2d 678 (2016); State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016); Collins v. State, 338 Ga. App. 886, 792 S.E.2d 134 (2016); Ga. Dep't of Juvenile Justice v. Eller, 338 Ga. App. 247, 789 S.E.2d 412 (2016); Rollins v. Rollins, 300 Ga. 485, 796 S.E.2d 721 (2017); Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020); Callaway Blue Springs, LLLP v. West Basin Capital, LLC, 341 Ga. App. 535, 801 S.E.2d 325 (2017); Liberty Mut. Fire Ins. Co. v. Quiroga-Saenz, 343 Ga. App. 494, 807 S.E.2d 460 (2017); State v. Cash, 302 Ga. 587, 807 S.E.2d 405 (2017); Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597, 807 S.E.2d 876 (2017); Durham v. State, 345 Ga. App. 687, 814 S.E.2d 813 (2018); Delta Aliraq, Inc. v. Arcturus Int'l, LLC, 345 Ga. App. 778, 815 S.E.2d 129 (2018); Wellman v. JP Morgan Chase Bank, N.A., 347 Ga. App. 118, 817 S.E.2d 567 (2018); City of Albany v. GA HY Imports, LLC, 348 Ga. App. 885, 825 S.E.2d 385 (2019); Oconee Fed. S & L Ass'n v. Brown, 349 Ga. App. 54, 825 S.E.2d 456 (2019); Laymac v. Kushner, 349 Ga. App. 727, 824 S.E.2d 768 (2019), cert. denied, No. S19C1091, 2019 Ga. LEXIS 871 (Ga. 2019); Nugent v. Myles, 350 Ga. App. 442, 829 S.E.2d 623 (2019); Bearoff v. Craton, 350 Ga. App. 826, 830 S.E.2d 362 (2019); Mason v. State, 353 Ga. App. 404, 837 S.E.2d 711 (2020); Brooks v. Quinlan, 353 Ga. App. 573, 839 S.E.2d 51 (2020); Sponsler v. Sponsler, 353 Ga. App. 627, 838 S.E.2d 921 (2020); McElrath v. State, 308 Ga. 104, 839 S.E.2d 573 (2020); Pounds v. State, Ga. , 846 S.E.2d 48 (2020);.
1. Constitutionality and Purpose of Section
Editor's notes.
- In light of the similarity of the issues dealt with by the provisions, decisions under former Code 1933, § 6-701 as it read prior to revision by Ga. L. 1965, p. 18, § 1 are included in the annotations for this Code section.
The conditional plea procedures established in Mims v. State, 201 Ga. App. 277, 410 S.E.2d 824 are disapproved and will no longer be allowed by the Court of Appeals of Georgia; Mims v. State, 201 Ga. App. 277, 410 S.E.2d 824 on this issue, and all decisions by the Court of Appeals of Georgia based upon Mims v. State authorizing conditional pleas, will not be followed. See Hooten v. State, 212 Ga. App. 770, 442 S.E.2d 836 (1994), annotated below.
Failure to comply with O.C.G.A.
§ 5-6-34(b). - Plaintiff's interlocutory appeal of a removal order transferring the plaintiff's case to another county was dismissed because the plaintiff failed to follow the interlocutory procedures set forth in O.C.G.A. § 5-6-34(b); although the removal order was issued by the original trial judge, the certificate of immediate review was issued by the trial judge in the other county following the transfer of the case, and because the certificate was not signed by the trial judge who issued the removal order, it was invalid and could not provide a basis for the exercise of jurisdiction by the court of appeals to consider the merits of the plaintiff's appeal. Mauer v. Parker Fibernet, LLC, 306 Ga. App. 160, 701 S.E.2d 599 (2010).
Supreme Court of Georgia concludes that the interlocutory appeal procedures set forth in O.C.G.A. § 5-6-34(b) regarding motions to compel arbitration is not preempted by the Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(B). Am. Gen. Fin. Servs. v. Jape, 291 Ga. 637, 732 S.E.2d 746 (2012).
Constitutionality.
- Fife v. Johnston, 225 Ga. 447, 169 S.E.2d 167 (1969).
Purpose of Appellate Practice Act, O.C.G.A. § 5-6-30 et seq., is to simplify procedure for bringing cases to the appellate court, and nothing therein should be construed as changing time honored and fundamental rule stemming from very nature of appellate jurisdiction that neither this court nor the Supreme Court will consider, nor do they in fact have jurisdiction to consider, any question unless the question has been raised in the first instance in the trial court. Taylor v. ROA Motors, Inc., 114 Ga. App. 671, 152 S.E.2d 631 (1966).
Legislative intent of section.
- Legislature in enacting subsections (a) and (b) of this section intended to follow federal procedure, and commensurate policy, of precluding piecemeal appeals. Lee v. Smith, 119 Ga. App. 808, 168 S.E.2d 880 (1969).
Certificate of immediate review is not "surplusage." The certificate is an essential component of a trial court's power to control litigation. Scruggs v. Georgia Dep't of Human Resources, 261 Ga. 587, 408 S.E.2d 103 (1991).
Statutes dealing with appellate practice in conflict with this section were impliedly repealed by Ga. L. 1965, p. 18.
- Georgia L. 1965, p. 18 was intended as a comprehensive revision of appellate and other post-trial procedure, and failure to specifically enumerate in repealing clauses thereof any statute, Code section, or Act dealing with subject of appellate practice and procedure shall not be construed as continuing in effect such Code section, statute, or Act as may be in conflict with this section. Parker v. Averett, 113 Ga. App. 576, 149 S.E.2d 199 (1966).
Conditional pleas.
- Conditional plea procedures established in Mims v. State 201 Ga. App. 277, 410 S.E.2d 824, are disapproved and will no longer be allowed by this court; 30 days after the date this opinion is published in the official advance sheets, pleas in which the accused attempts to condition upon the preservation of the rights to raise non-jurisdictional errors by the trial court will not be considered by this court. Hooten v. State, 212 Ga. App. 770, 442 S.E.2d 836 (1994).
Direct appeal appropriate.
- As no claims remained, and the case was no longer pending in the court below, a judge's order was a final judgment as contemplated by O.C.G.A. § 5-6-34(a)(1); thus, a direct appeal was appropriate, and children could raise any issues in the direct appeal from the order that were ruled upon in all previous non-final orders. Sotter v. Stephens, 291 Ga. 79, 727 S.E.2d 484 (2012).
Right to appeal.
- When a defendant sentenced to life in prison asserted that his failure to file a timely appeal was not due to any negligence on the defendant's part, and wished to exercise the defendant's right to appeal, the defendant's motion for out-of-time appeal was improperly denied without further inquiry or a hearing. Randolph v. State, 220 Ga. App. 769, 470 S.E.2d 300 (1996).
Questions decided by appellate court binding as law of case.
- Parent could not raise various enumerations of error in the parent's appeal of a custody modification decision because the same issues had been raised in the prior appeals. Gilchrist v. Gilchrist, 323 Ga. App. 555, 747 S.E.2d 75 (2013).
Appellate court may consider orders that were entered prior to or contemporaneously with the judgment being appealed, O.C.G.A. § 5-6-34(d), but judgments cannot be considered on appeal if rendered subsequent to the judgment appealed. Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322, 765 S.E.2d 536 (2014).
2. Construction in General
There can be no effective appeal from anything but a judgment; a final judgment without a certificate, or an interlocutory judgment with a certificate, reduced to writing and entered by filing with the clerk. G.M.J. v. State, 130 Ga. App. 420, 203 S.E.2d 608 (1973).
When the appellate court assumed, without deciding, that a pending commercial lease controversy authorized a declaratory judgment directing the defendant would not be in breach of the lease by paying future rent according to an amendment, it held that, because a controversy remained pending below, the order granting that declaration was not a final judgment, and therefore that portion of the order granting declaratory judgment was not directly appealable, and the denial of the defendant's motion for summary judgment was also not independently directly appealable. Yeazel v. Burger King Corp., 236 Ga. App. 110, 511 S.E.2d 237 (1999).
In a legal malpractice action, the appeals court held that the appeals lacked jurisdiction to hear a lawyer's appeal from the trial court's order striking an untimely response to a motion for summary judgment, as: (1) no final judgment had been entered against the lawyer, who remained a defendant in the trial court; and (2) the lawyer failed to follow the procedures for appealing the interlocutory ruling on the motion to strike. Stubbs v. Pickle, 287 Ga. App. 246, 651 S.E.2d 171 (2007).
Subsection (d) is broad enough to permit a party to raise on the appeal of a directly appealable order issues regarding an order that, standing alone, is subject to the application requirements of O.C.G.A. § 5-6-35. American Car Rentals, Inc. v. Walden Leasing, Inc., 220 Ga. App. 314, 469 S.E.2d 431 (1996).
O.C.G.A. § 5-6-34(d) grants the Court of Appeals of Georgia authority to review all judgments or rulings rendered in a case without regard to the appealability of that judgment or ruling. Bradford v. State, 283 Ga. App. 75, 640 S.E.2d 630 (2006).
Because the Court of Appeals of Georgia had jurisdiction to hear appeals filed after punishment was imposed pursuant to a contempt order, any other non-final rulings entered in the case could also be raised as part of such a direct appeal, pursuant to O.C.G.A. § 5-6-34(d). Harrell v. Fed. Nat'l Payables, Inc., 284 Ga. App. 395, 643 S.E.2d 875 (2007).
Compared with O.C.G.A. § 5-6-35. - O.C.G.A. § 5-6-35 applies to all appeals specified therein, whether the judgment be final, interlocutory, or summary. Thus, in an action to modify support obligations, the wife, whose motion to dismiss was denied, was correct in following the discretionary-application procedure, within the 30-day period of O.C.G.A. § 5-6-35(d), rather than the procedures set out in O.C.G.A. § 5-6-34. Straus v. Straus, 260 Ga. 327, 393 S.E.2d 248 (1990).
While O.C.G.A. § 5-6-35(h) provides that the filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as a supersedeas, that section applies only to discretionary appeals. O.C.G.A. § 5-6-34(b), which applies to interlocutory appeals, does not so provide, but states that if the appellate court issues an order granting an appeal, the applicant may then timely file a notice of appeal and the notice of appeal shall act as a supersedeas, as provided in O.C.G.A. § 5-6-46. Nelson v. Haugabrook, 282 Ga. App. 399, 638 S.E.2d 840 (2006).
Construed with
§ 5-6-35(a). - Phrase "following cases" in O.C.G.A. § 5-6-35(a) is construed to exclude those cases in which subsection (d) of O.C.G.A. § 5-6-34 is applicable; thus, since the appellants filed a motion styled as both a motion for a new trial and a motion to set aside the judgment, but it was clearly only a motion for new trial since it raised issues relating to the verdict but none relating to a motion to set aside under O.C.G.A. § 9-11-60(d), the Court of Appeals erred in dismissing the appeal. Martin v. Williams, 263 Ga. 707, 438 S.E.2d 353 (1994).
Underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal; thus, when a trial court issues a judgment listed in the direct appeal statute in a case whose subject matter is covered under the discretionary appeal statute, the discretionary application procedure must be followed when the party is appealing a judgment or order that is procedurally subject to a direct appeal. Rebich v. Miles, 264 Ga. 467, 448 S.E.2d 192 (1994).
In plaintiff's appeal of the denial of plaintiff's request for a declaratory judgment, the plaintiff could add issues relating to other rulings which might affect the proceedings below without regard to whether the issues were appealable standing alone. Smith v. Department of Human Resources, 214 Ga. App. 508, 448 S.E.2d 372 (1984).
While a judgment or an order denying an application for injunctive relief, mandamus, or other extraordinary relief is a judgment or order subject to direct appellate review, it is subject to the discretionary application procedure if the underlying subject matter of the appeal is one contained in O.C.G.A. § 5-6-35. Prison Health Servs., Inc. v. Georgia Dep't of Admin. Servs., 265 Ga. 810, 462 S.E.2d 601 (1995).
Unless subject to O.C.G.A. § 5-6-35, all rulings and judgments are directly appealable when they dispose of all matters before the court; after entry of final judgment in a criminal matter and the filing of a notice of appeal, a motion for the trial court to appoint appellate counsel raises a new matter and when disposed of, the new ruling disposes of all matters before the court, and therefore the ruling may be directly appealed. Spear v. State, 271 Ga. App. 845, 610 S.E.2d 642 (2005).
Underlying subject matter of a resident's suit seeking a writ of mandamus and other relief arising from the issuance of a building permit for the construction of a school building in the neighborhood concerned the review of an administrative zoning decision and, therefore, the appellate court had jurisdiction to address the merits only in the context of a discretionary appeal; while the trial court's order ruling against the resident was appealable under O.C.G.A § 5-6-34(a), the resident was required to obtain permission to file the appeal, and could not circumvent the discretionary application requirements of O.C.G.A. § 5-6-35. Ladzinske v. Allen, 280 Ga. 264, 626 S.E.2d 83 (2006).
O.C.G.A. § 5-6-35(a)(8) requires that review of an order denying a motion to set aside be preceded by an application for discretionary review. When both O.C.G.A. §§ 5-6-34(a) and5-6-35(a) are involved, an application for appeal is required when the underlying subject matter of the appeal is listed in § 5-6-35(a), even though the party may be appealing a judgment or order that is procedurally subject to a direct appeal under § 5-6-34(a). Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011).
Construction with O.C.G.A. § 9-10-53. - Although O.C.G.A. § 9-10-53 addresses the general conduct of further proceedings following a case transfer, O.C.G.A. § 5-3-34(b) sets forth the more specific rule governing the issuance of a certificate of immediate review for interlocutory appeals; it thus follows that the general provisions of O.C.G.A. § 9-10-53 cannot override the clear and specific provisions of O.C.G.A. § 5-6-34(b) mandating that the certificate of immediate review be issued by the trial judge who entered the order in question. Mauer v. Parker Fibernet, LLC, 306 Ga. App. 160, 701 S.E.2d 599 (2010).
Effect of 1986 amendment of § 40-13-28. - The 1986 amendment to O.C.G.A. § 40-13-28 that changed the scope of review in the superior court from a de novo investigation to a review of the record was not also intended to change the method of appeal from the superior court in such cases from discretionary appeals under O.C.G.A. § 5-6-35(a)(1) to direct appeals under subsection (a) of O.C.G.A. § 5-6-34. Brown v. City of Marietta, 214 Ga. App. 840, 449 S.E.2d 540 (1994).
Entry of judgment question not appealable.
- There is no authority for the trial court to grant an appellant the right to file an "extraordinary appeal" to determine whether or not judgment should be entered in a case. Robbins v. State, 193 Ga. App. 5, 387 S.E.2d 18 (1989).
In appeal from verdict, mere mention in notice of a final judgment is insufficient.
- When appeal was taken from verdict and ruling which was not an appealable judgment, mere mention in notice of appeal of judgment overruling motion for new trial does not constitute appeal from final judgment so as to satisfy requirements of this article. Davis v. Davis, 224 Ga. 740, 164 S.E.2d 816 (1968).
Section allows review by appeal as a matter of right as to all final judgments. Harwell v. State, 127 Ga. App. 204, 193 S.E.2d 257 (1972).
What orders, decisions, or judgments are directly appealable.
- To be subject to direct appeal, an order, decision, or judgment must be final such that the cause is no longer pending in the court below, or involving an issue specified as directly appealable under subsection (a) of this section. Stallings v. Chance, 239 Ga. 567, 238 S.E.2d 327 (1977).
Qualified immunity cases subject to interlocutory appeal.
- Georgia courts must consider the issue of a government employee's qualified immunity from liability as the threshold issue in a suit against an officer in their personal capacity and the statutory framework governing interlocutory appeals must be followed. Case law precedents that previously held that qualified immunity issues were appealable under the collateral order doctrine are overruled. Rivera v. Washington, 298 Ga. 770, 784 S.E.2d 775 (2016).
No direct appeal from interlocutory order in probate court.
- Appeal from the probate court to a superior court is for the purpose of conducting a de novo investigation in the superior court, and not for the purpose of correcting errors of law committed in the probate court. Thus, there can be no direct appeal to the superior court from an interlocutory ruling in the probate court. Driver v. State, 198 Ga. App. 643, 402 S.E.2d 524, cert. denied, 198 Ga. App. 897, 402 S.E.2d 524 (1991).
When an order appealed from was for a partial accounting, and thus not directly appealable, it was interlocutory; thus, as claims remained below, when the appealing parties failed to follow the interlocutory appeal procedures, dismissal was warranted. Geeslin v. Sheftall, 263 Ga. App. 827, 589 S.E.2d 601 (2003).
Absent final ruling by trial court, there is nothing for appellate court to pass upon. Cole v. Frostgate Whses., Inc., 150 Ga. App. 320, 257 S.E.2d 309, rev'd on other grounds, 244 Ga. 782, 262 S.E.2d 99 (1979).
When decision is not appealable under section.
- Decision is not an appealable judgment when (1) case is still pending in court below; (2) record contains no certificate of trial judge certifying that decision appealed from is of such importance to case that immediate review should be had; and (3) decision is not one of those specifically described judgments from which appeal is permitted by subsection (a) of this section. Dowdy v. White, 119 Ga. App. 793, 168 S.E.2d 595 (1969).
Appeals court rejected an employee's claim that because the trial court had previously signed a certificate of immediate review of the trial court's original order denying summary judgment on the employee's claim for intentional infliction of emotional distress, the trial court lacked jurisdiction over the case at the time the trial court amended the order by granting summary judgment in favor of the former employer and the former manager; as the trial court's order was not appealable, the trial court retained jurisdiction and thus was authorized to amend the court's order. Wilcher v. Confederate Packaging, Inc., 287 Ga. App. 451, 651 S.E.2d 790 (2007).
Appeals from superior courts in traffic cases.
- All appeals from judgments of superior courts in traffic cases under O.C.G.A. § 40-13-28 must follow the procedures in O.C.G.A. § 5-6-35(a). Accordingly, 30 days after the date this decision is published in the official advance sheets any direct appeals in these cases filed under subsection (a) of O.C.G.A. § 5-6-34 will be dismissed. Brown v. City of Marietta, 214 Ga. App. 840, 449 S.E.2d 540 (1994).
Any appeal from a superior court review under O.C.G.A. § 40-13-28 of any lower court, except the probate court, shall be under O.C.G.A. § 5-6-35(a); however, an appeal from the superior court review under § 40-13-28 of a traffic case from the probate court shall be by direct appeal under paragraph (a)(1) O.C.G.A. § 5-6-34. Power v. State, 231 Ga. App. 335, 499 S.E.2d 357 (1998).
No direct appeal from recorder's court to Supreme Court.
- Direct appeal from the recorder's court to the Supreme Court was not available in a case challenging the constitutionality of an ordinance. Instead, the proper method of review was by certiorari to the superior court. Russell v. City of E. Point, 261 Ga. 213, 403 S.E.2d 50 (1991), cert. denied, 502 U.S. 971, 112 S. Ct. 448, 116 L. Ed. 2d 466 (1991).
Section inapplicable to cases arising under Administrative Procedure Act.
- Interlocutory appeal procedure set forth in O.C.G.A. § 5-6-34 does not apply to cases arising under the Administrative Procedure Act because that Act does not authorize appellate court review of such cases unless the reviewing superior court has rendered a "final judgment." State Health Planning Review Bd. v. Piedmont Hosp., 173 Ga. App. 450, 326 S.E.2d 814 (1985).
Discretion of trial judge.
- Broad discretion is given a trial judge in determining whether interlocutory application is appropriate. Brown v. State, 177 Ga. App. 146, 338 S.E.2d 718 (1985).
Criminal defendants cannot cross appeal suits brought by state.
- Despite resultant justice and judicial economy, court will not allow criminal defendants to cross appeal suits brought before the court by the state pursuant to O.C.G.A. § 5-7-1; O.C.G.A. § 5-6-38 limits that right to civil parties and the court will not encroach upon the legislature's prerogative by extending that right. State v. Crapse, 173 Ga. App. 100, 325 S.E.2d 620 (1984), overruled in part on other grounds, Hubbard v. State, 176 Ga. App. 622, 337 S.E.2d 60 (1985).
Clarification for cross-appeals.
- 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).
What constitutes final judgment.
- Even though an order does not specify that it is a grant of final judgment, it nevertheless constitutes a final judgment within the meaning of O.C.G.A. § 5-6-34 when the order leaves no issues remaining to be resolved, constitutes the court's final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court. Caswell v. Caswell, 157 Ga. App. 710, 278 S.E.2d 452 (1981); Vurgess v. State, 187 Ga. App. 700, 371 S.E.2d 191 (1988); Decubas v. Norfolk S. Corp., 193 Ga. App. 387, 388 S.E.2d 336 (1989), rev'd on other grounds, 260 Ga. 136, 390 S.E.2d 216 (1990); Spring-U Bonding Co. v. State, 200 Ga. App. 533, 408 S.E.2d 831 (1991).
Finality for res judicata purposes is measured by the same standard as finality for appealability purposes. Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981).
Absent final judgment or certificate of immediate review, appeal is premature and must be dismissed. Marsh v. Allgood, 118 Ga. App. 773, 165 S.E.2d 479 (1968); Moore v. Georgia Power Co., 122 Ga. App. 54, 176 S.E.2d 236 (1970); Foskey v. Bank of Alapaha, 147 Ga. App. 541, 249 S.E.2d 346 (1978); Ward v. Charles D. Hardwick Co., 149 Ga. App. 546, 254 S.E.2d 872 (1979).
When there is no certificate of review and the case does not fall within the class of exceptions found in section, the appeal must be dismissed. Thompson v. Consumer Credit of Valdosta, Inc., 123 Ga. App. 281, 180 S.E.2d 595 (1971).
When a final judgment has not been entered nor a certificate of immediate review granted, either by the trial court or the appellate court, an appeal is premature and must be dismissed. Bowers v. Price, 168 Ga. App. 125, 308 S.E.2d 420 (1983).
As to judgments that are not final, compliance with subsection (b) is a prerequisite to an appeal. Harwell v. State, 127 Ga. App. 204, 193 S.E.2d 257 (1972).
Party seeking appellate review from an interlocutory order must follow the interlocutory-application subsection, subsection (b) of O.C.G.A. § 5-6-34, seek a certificate of immediate review from the trial court, and comply with the time limitations therein. Scruggs v. Georgia Dep't of Human Resources, 261 Ga. 587, 408 S.E.2d 103 (1991); Collier v. Evans, 205 Ga. App. 764, 423 S.E.2d 704 (1992).
Appellant required to follow both discretionary and interlocutory procedures.
- Because a driver seeking review of an order of attorney's fees against the driver, entered under O.C.G.A. § 9-15-14, after the driver opposed a motion to transfer venue, properly followed O.C.G.A. § 5-6-35(a)(10) in seeking discretionary review, but did not comply with O.C.G.A. § 5-6-34(b) governing interlocutory appeals, the appeal was dismissed. Eidson v. Croutch, 337 Ga. App. 542, 788 S.E.2d 129 (2016).
Interlocutory rulings are not appealable absent following procedure outlined in subsection (b). Insurance Co. of N. Am. v. Fowler, 148 Ga. App. 509, 251 S.E.2d 594 (1978), overruled on other grounds, Seaboard Coast Line R.R. v. Mobil Chem. Co., 172 Ga. App. 543, 323 S.E.2d 849 (1984).
Interlocutory appeal is cognizable only if trial judge issues certificate of immediate review and appellate court grants permission for direct appeal pursuant to application filed in accordance with subsection (b). Becker v. Bishop, 151 Ga. App. 224, 259 S.E.2d 209 (1979); Wolf v. Richmond County Hosp. Auth., 169 Ga. App. 68, 311 S.E.2d 507 (1983).
Failure to comply with the interlocutory appeal procedure set forth in subsection (b), the appeal causes the appeal to be premature and it must be dismissed. English v. Tucker Fed. Sav. & Loan Ass'n, 175 Ga. App. 69, 332 S.E.2d 365 (1985).
Failure to comply with interlocutory appeal procedures.
- Trial court's denial of a wife's motion to vacate was affirmed because the husband's filing of a notice of appeal without first complying with the requirements for obtaining interlocutory review had no legal effect and, therefore, did not deprive the trial court of jurisdiction to consider the husband's motion for reconsideration or from entering a modification order. Islamkhan v. Khan, 299 Ga. 548, 787 S.E.2d 731 (2016).
Effect of failure to appeal from interlocutory order.
- Although the Court of Appeals has considered orders on motions to set aside condemnations on direct appeal, when an appeal is taken from a final judgment, all judgments, rulings, or orders rendered in the case which are raised on appeal will be considered, whether or not the earlier ruling was appealable. Skipper v. DOT, 197 Ga. App. 634, 399 S.E.2d 538 (1990).
Order limiting lead counsel's pro hac vice status.
- Appeal of an order limiting lead counsel's pro hac vice status and designating two local counsel was dismissed because there was no direct appeal available from the order since the trial court did not disqualify lead counsel and, instead, only limited participation in the case. Fein v. Chenault, 330 Ga. App. 222, 767 S.E.2d 766 (2014).
Term "court below" is construed to be court whose judgment is sought to be appealed. J.T.M. v. State, 142 Ga. App. 635, 236 S.E.2d 764 (1977).
Paragraph (a)(1) of former Code 1933, § 6-701 and subsection (b) were to be construed together so that determination of finality under latter satisfied the finality requirement of the former. Thompson v. Clarkson Power Flow, Inc., 149 Ga. App. 284, 254 S.E.2d 401, aff'd, 244 Ga. 300, 260 S.E.2d 9 (1979).
Interpretation of intended relationship among individual paragraphs and subsections of section.
- See Springtime, Inc. v. Douglas County, 228 Ga. 753, 187 S.E.2d 874 (1972) (decided under former Code 1933, § 6-701 as it read prior to rearrangement of paragraphs and subsections to present form).
This section's definition of final judgment applies to
§ 15-11-64. - Ga. L. 1977, p. 1237, § 7 (see O.C.G.A. § 15-11-64) provided for appeals from final judgments of juvenile court judge, without defining final judgments, former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34) for appeals when judgment was final - that was to say - when cause was no longer pending in court below. J.T.M. v. State, 142 Ga. App. 635, 236 S.E.2d 764 (1977).
Former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34) was determinative as to finality of judgments entered under former Code 1933, § 67-701 (see O.C.G.A. T. 44, Ch. 14, Art. 7, Part 4). Jordan v. Ford Motor Credit Co., 147 Ga. App. 515, 249 S.E.2d 327 (1978).
Defendants could not challenge the ruling.
- Defendants could not challenge the ruling from which the defendants now seek relief because the ruling was not entered until after the prior appeal was concluded. Turner Constr. Co. v. Electrical Distribs., Inc., 202 Ga. App. 726, 415 S.E.2d 325 (1992).
When court grants motion to dismiss and denies another defendant's motion to dismiss, filed on other grounds, and the plaintiff appeals, but the dismissal order contains no express determination that there is no just reason for delay, and there is no express direction for the entry of such judgment, the appeal is premature and must be dismissed, even when the trial court grants a certificate for immediate review. All Risk Ins. Agency, Inc. v. Rockbridge San. Co., 166 Ga. App. 728, 305 S.E.2d 390 (1983).
Denial of judgment n.o.v. appealable, even when new trial granted.
- Denial of a judgment notwithstanding the verdict can be considered on appeal even though a motion for a new trial has been granted, if an appeal is taken from a final judgment entered pursuant to O.C.G.A. § 9-11-54(b) (judgments upon multiple claims or multiple parties). GMAC v. Bowen Motors, Inc., 167 Ga. App. 463, 306 S.E.2d 675 (1983).
Appeal from "motion to compel settlement" was dismissed since the appeal was actually intended to be taken from an interlocutory order rather than from the "final outcome" of the case, and no amendment had been filed to correct this defect. Martin v. Farrington, 179 Ga. App. 227, 346 S.E.2d 5 (1986).
Filing of motion to set aside summary judgment is ineffective as extender of time for filing notice of appeal. Gulf Oil Co. v. Mantegna, 167 Ga. App. 844, 307 S.E.2d 732 (1983).
Discretionary appeal.
- Trial court's order upholding the constitutionality of Georgia's Child Support Guidelines was erroneously certified by the trial court since the order did not dispose of any claim. However, since the appellate court had granted a father's application for discretionary appeal, the appellate court proceeded to a consideration of the merits of the constitutional issue. Keck v. Harris, 277 Ga. 667, 594 S.E.2d 367 (2004).
What Are Final, Appealable Judgments
Constitutionality of law appealable from oral ruling.
- Distinct, oral ruling, reflected in a transcript is sufficient and need not be reduced to writing in order to invoke the Supreme Court of Georgia's exclusive appellate jurisdiction in cases in which the constitutionality of a law has been drawn into question. Jenkins v. State, 284 Ga. 642, 670 S.E.2d 425 (2008).
Dismissal of complaint against one of two defendants for failure to set forth facts establishing venue as to that defendant not a final, appealable judgment, as the action remained pending against the other defendant. Coley Fertilizer Co. v. Gold Kist, Inc., 174 Ga. App. 471, 330 S.E.2d 597 (1985).
Dismissal of complaint against one of two defendants.
- Order entered by a county superior court which stated that the plaintiff had no claim against a county sheriff but allowed the filing of the plaintiff's complaint against a county law enforcement employee does not constitute a final order of disposition from which the plaintiff may appeal. Howard v. Wilkes, 191 Ga. App. 239, 382 S.E.2d 434 (1989).
Because an insured could not use a voluntary dismissal of one of the defendants as the vehicle for appellate review of rulings entered by the trial court more than 30 days from the filing of the notice of appeal, and no other final appealable ruling existed in the record, the insured's appeal was dismissed based on the appellate court's lack of jurisdiction. Waye v. Continental Special Risks, Inc., 289 Ga. App. 82, 656 S.E.2d 150 (2007), cert. denied, 2008 Ga. LEXIS 392 (Ga. 2008).
Appellate court had jurisdiction over appeal involving multiple parties.
- 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).
When the mother and the father, who were the biological parents of their incapacitated adult daughter, were seeking appointment as the daughter's guardian and conservator, the appellate court found that the court did not have jurisdiction to consider the mother's and the stepfather's appeals of the superior court's December 21, 2015, show cause order requiring the mother and stepfather to appear in court with the daughter because that order did not include any decision as to custody, nor did the court hold or decline to hold any party in contempt of a child custody or any other order; thus, it was an interlocutory ruling and not directly appealable. Ruemker v. Ruemker, 339 Ga. App. 680, 792 S.E.2d 727 (2016).
Denial of order to release tax funds.
- Order denying the school district's request to order the city to release to the school district the tax funds the city was holding pursuant to a prior court order was not appealable as an order refusing an application for an injunction because the school district's motion to release the tax funds was best construed as a motion to vacate or dissolve the already existing injunction prohibiting the city from releasing the funds and such a motion did not fall within the ambit of O.C.G.A. § 5-6-34. City of Dublin Sch. Dist. v. MMT Holdings, LLC, 351 Ga. App. 112, 830 S.E.2d 487 (2019).
Dismissal of complaint without dismissal of counterclaim.
- Voluntary dismissal of a complaint by a party is not a final judgment within the meaning of O.C.G.A. § 5-6-34 where a counterclaim filed by the other side was never actually dismissed. Memorial Medical Ctr., Inc. v. Moore, 184 Ga. App. 176, 361 S.E.2d 49 (1987); Chatham County Hosp. Auth. v. Mack, 185 Ga. App. 13, 363 S.E.2d 264 (1987).
Dismissal of claims when other claims pending not appealable order.
- Trial court's order dismissing claims was not an appealable final order because claims remained pending in the trial court, and the trial court did not direct entry of final judgment; additionally, there was no compliance with interlocutory appeals procedure. Church v. Bell, 213 Ga. App. 44, 443 S.E.2d 677 (1994); Financial Inv. Group, Inc. v. Cornelison, 238 Ga. App. 223, 516 S.E.2d 844 (1999).
Dismissal of complaint without prejudice for failure to file an expert's affidavit was a final judgment as to the defendants and was appealable under paragraph (a)(1) of O.C.G.A. § 5-6-34. Jordan, Jones & Goulding, Inc. v. Balfour Beatty Constr., Inc., 246 Ga. App. 93, 539 S.E.2d 828 (2000).
Verdict form was not an appealable final judgment.
- "Verdict form" entered by the trial court in April 2008 did not constitute an appealable final judgment under O.C.G.A. § 5-6-34 so that a notice of appeal was untimely. The trial court specifically entered final judgment in July 2008, and the notice of appeal was filed within 30 days of that date. Sunstate Indus. v. VP Group, Inc., 298 Ga. App. 269, 679 S.E.2d 824 (2009).
Denial of a protective order.
- Granting of a protective order denying the defendant's discovery motion left the defendant with no further recourse entitling the defendant to a direct appeal. R.J. Reynolds Tobacco Co. v. Fischer, 207 Ga. App. 292, 427 S.E.2d 810 (1993).
Child custody order in divorce case not a final judgment.
- Because neither the original court-ordered parenting plan nor the two subsequent orders amending the plan constituted a final judgment, and the determination of child custody became final only when the final judgment and decree in the divorce case was entered, the wife's motion for new trial, although the motion obviously referenced the bench trial on the child custody issues, was timely filed within 30 days of the date of the final judgment in the divorce case. Hoover v. Hoover, 295 Ga. 132, 757 S.E.2d 838 (2014).
Partial taking condemnation order.
- Because a partial taking condemnation order was not otherwise a final appealable judgment within the meaning of O.C.G.A. § 5-6-34(a), and the parties could have appealed by complying with the relevant interlocutory appeal requirements, but did not do so, the appeals court lacked jurisdiction to consider either the appeal or the cross-appeal; moreover, the superior court's rulings on the admissibility of certain evidence constituted no judgment on the merits of any part of the appealing party's claim for just and adequate compensation. Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 633 S.E.2d 623 (2006).
New trial for fewer than all defendants.
- Both the order granting the plaintiffs a new trial as to one defendant and the order denying the defendants' motion for a new trial as to the other defendant were nonfinal and interlocutory orders and, as such, did not otherwise finally dispose of the plaintiffs' motion for new trial so as to render the underlying judgment in favor of both defendants final and directly appealable by those defendants. Crumbley v. Wyant, 183 Ga. App. 802, 360 S.E.2d 276, cert. denied, 183 Ga. App. 905, 360 S.E.2d 276 (1987).
Lack of notice of trial.
- Ruling on a motion to set aside the verdict and judgment for a new trial based on a lack of notice of trial is subject to direct review as a motion for a new trial when the lack of notice is based on a defect not appearing upon the face of the record. Hill v. Bailey, 187 Ga. App. 413, 370 S.E.2d 520 (1988), overruled on other grounds by Southall v. State, 300 Ga. 462, 796 S.E.2d 261 (Ga. 2017).
In absence of any judgment, ruling, or order rendered by court on motions for summary judgment and for certification of the action as a class action, the motions and other enumerations of alleged error dependent upon rulings on the motions are not yet ripe for review by the appellate courts. Stoddard v. Board of Tax Assessors, 173 Ga. App. 467, 326 S.E.2d 827 (1985).
Because the notice of appeal divested the trial court of jurisdiction, and thereby established the permissible parameters of the case on appeal, the order denying the motion for reconsideration was ineffective and did not constitute a judgment, ruling, or order rendered in the case within the meaning of O.C.G.A. § 5-6-34(d). State v. White, 282 Ga. 859, 655 S.E.2d 575 (2008).
Denial of a motion to intervene is not a final judgment; thus, it is reviewable under the interlocutory appeal procedure. Morman v. Board of Regents, 198 Ga. App. 544, 402 S.E.2d 320 (1991).
Trial court's order denying a motion to recuse was not a "final judgment," and required an application for interlocutory review. Rolleston v. Glynn County Bd. of Tax Assessors, 213 Ga. App. 552, 445 S.E.2d 345 (1994).
Because all the salient dates, including the filing of the action, the issuance of the order sought to be appealed, and the filing of the notice of appeal, occurred prior to the effective date of the amendment to O.C.G.A. § 5-6-34 in 2013, a proper retroactivity analysis and its application did not provide a basis for dismissing the mother's appeal; however, even under the former version of this statute, there was no right of direct appeal from the recusal order of the judge as the order denying the motion to recuse did not deal with which parent had custody. Murphy v. Murphy, 295 Ga. 376, 761 S.E.2d 53 (2014).
Denial of request for appellate counsel.
- Because the defendant failed to file a timely direct appeal of the denial of the defendant's request for appellate counsel, the defendant was precluded from raising the same issue again; further, the defendant had withdrawn from the appellate court the record from the original appeal, and therefore the appellate court did not know whether the defendant attempted to raise the issue of appellate counsel during the defendant's initial appeal; as the initial appeal had been decided, the issue was moot under O.C.G.A. § 5-6-48(b)(3). Spear v. State, 271 Ga. App. 845, 610 S.E.2d 642 (2005).
Court had jurisdiction over a rape defendant's appeal from the denial of the defendant's motions for appointment of post-conviction counsel, the defendant's challenges to the DNA evidence, and the defendant's motions to correct a void sentence, pursuant to O.C.G.A. § 5-6-34(d), because the denial of post-conviction counsel was directly appealable, and other matters affecting the proceedings below could be addressed. Nelson v. State, Ga. App. , S.E.2d (Aug. 21, 2020).
Grant of motion to set aside judgment, like grant of motion for new trial, leaves case still pending in court below and thus is not a final judgment. Franklin v. Collins, 162 Ga. App. 755, 293 S.E.2d 364 (1982); Hooper v. Taylor, 230 Ga. App. 128, 495 S.E.2d 594 (1998).
When default judgment is set aside by trial court based on finding that the trial court never acquired jurisdiction over nonresident defendants but when no dismissal motion has in fact been filed and no dismissal ordered, and there is no compliance with interlocutory appeal procedures, the appeal is premature and must be dismissed. Walton v. Collins, 172 Ga. App. 736, 324 S.E.2d 574 (1984).
Grant of an application to compel arbitration is not equitable in nature, but operates merely to stay further proceedings in a pending action when entered by the court in which the action is pending and is incidental to the power inherent in every court to control the disposition of the causes on the court's docket with economy of time and effort for itself, for counsel, and for litigants. Consequently, the order granting motion to compel arbitration did not constitute an equitable injunction directly appealable pursuant to paragraph (a)(4) of O.C.G.A. § 5-6-34, but resolves an interlocutory matter reviewable pursuant to subsection (b) of this section. McAllister v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 212 Ga. App. 697, 443 S.E.2d 9 (1994).
Grant of an application to compel arbitration is not directly appealable pursuant to paragraph (a)(4) of O.C.G.A. § 5-6-34, but is instead an interlocutory matter reviewable pursuant to subsection (b) which requires obtaining a certificate of immediate review from the trial court. Pace Constr. Corp. v. Northpark Assocs., 215 Ga. App. 438, 450 S.E.2d 828 (1994); Goshayeshi v. Mehrabian, 232 Ga. App. 81, 501 S.E.2d 265 (1998).
Superior court's order dismissing an action by homeowners for the appointment of an arbitrator and referring the parties to arbitration before an entity specified in the homeowners' arbitration agreement with the homeowners' builders was a final order dismissing the original action in the action's entirety, and the case was no longer pending in the superior court. Therefore, the judgment was directly appealable under O.C.G.A. § 5-6-34(a)(1). Torres v. Piedmont Builders, Inc., 300 Ga. App. 872, 686 S.E.2d 464 (2009).
Appeal of an order compelling arbitration was from a final judgment directly appealable under O.C.G.A. § 5-6-34(a)(1) because the trial court's arbitration order dismissed the original action in its entirety, and the case was no longer pending in the superior court. Extremity Healthcare, Inc. v. Access to Care America, LLC, 339 Ga. App. 246, 793 S.E.2d 529 (2016).
Appeal directly from the trial court's order compelling arbitration was dismissed because the trial court's order compelling arbitration did not constitute a final judgment that was directly appealable to the appellate court as the trial court's order compelling arbitration did not dismiss the original action in its entirety, but, rather, it suspended further action on the case until such time as either of the parties sought to reopen the matter before the trial court by requesting that the stay be lifted; and the appellants were barred from applying to the appellate court for interlocutory review as the trial court refused to grant a certificate of immediate review. Austin Reg'l Home Care, Inc. v. Careminders Home Care, Inc., 344 Ga. App. 608, 810 S.E.2d 676 (2018).
Appeal from mandamus directly appealable.
- Court order requiring a county to approve a landfill did not involve zoning, but the county's decision under O.C.G.A. § 12-8-25 to prevent a landfill close to its border, and an appeal from the order was considered an appeal from the grant of a writ of mandamus, which is a direct appeal. Long v. FSL Corp., 268 Ga. 479, 490 S.E.2d 102 (1997).
Although a trial court order was not immediately appealable as a final order pursuant to O.C.G.A. § 5-6-34(a)(1), the order also dismissed a claim for mandamus relief and, therefore, was, at the time the notice of appeal was filed, immediately and directly appealable pursuant to § 5-6-34(a)(7), and all other rulings were, therefore, properly before the appellate court under § 5-6-34(d). The Stuttering Foundation, Inc. v. Glynn County, 301 Ga. 492, 801 S.E.2d 793 (2017).
Developer could directly appeal the dismissal of the developer's claim for mandamus against county planning officials under O.C.G.A. § 5-6-34(a)(7); the officials did not make an administrative "decision" for purposes of a discretionary appeal under O.C.G.A. § 5-6-35(a)(1) when the officials simply "released" the developer's permit application due to a moratorium and requested further information from the developer. Carson v. Brown, 348 Ga. App. 689, 824 S.E.2d 605 (2019).
Denial of motion for acquittal based on
§ 17-7-170 appealable. - Although not technically a final judgment, the denial of a motion to dismiss (more properly, a motion for acquittal) based upon O.C.G.A. § 17-7-170 is directly appealable under subsection (a) of O.C.G.A. § 5-6-34. Cook v. State, 183 Ga. App. 720, 359 S.E.2d 716 (1987).
Denial of motion to set aside is appealable as a matter of right. Dudley v. Monsour, 155 Ga. App. 269, 270 S.E.2d 686 (1980).
Denial of a motion to set aside is not a final appealable judgment when a counterclaim is still pending. The appeal must be dismissed, notwithstanding a final judgment has since been entered in the case, when no appeal has been filed thereafter. Gulf Oil Co. v. Mantegna, 167 Ga. App. 844, 307 S.E.2d 732 (1983).
Although the denial of a motion to set aside a judgment was ordinarily subject to the discretionary appeal procedure, O.C.G.A. § 5-6-35(a)(8), the denial of a stepson's motion to set aside was reviewable in conjunction with the stepson's appeal from the superior court's judgment reviewing the probate court's decision because the superior court's judgment reviewing the probate court's decision was directly appealable under O.C.G.A. § 5-6-34(a)(1). Bocker v. Crisp, 313 Ga. App. 585, 722 S.E.2d 186 (2012).
Order setting aside default judgment is final in establishing liability of appellee, and it is appealable notwithstanding the fact that there was no final adjudication of the case in the lower court. Byrd v. Moore Ford Co., 116 Ga. App. 292, 157 S.E.2d 41 (1967).
Judgment on complaint in equity setting aside default judgment is a final judgment, and appeals from it are not subject to dismissal when the appeals emanate from the same court, involve the same parties, and pertain to the same default judgment. Cochran v. Levitz Furn. Co., 249 Ga. 504, 291 S.E.2d 535 (1982).
Order granting a motion for entry of a default judgment against the grantee of property transferred by a judgment debtor, setting aside the deed from the debtor to the grantee, and placing the property back in the name of the debtor, was a final judgment within the meaning of O.C.G.A. § 5-6-34. Forrister v. Manis Lumber Co., 232 Ga. App. 370, 501 S.E.2d 606 (1998).
Order denying a motion for entry of a default judgment.
- Appeal of an order denying a motion for a default judgment was reviewable because the order denying the motion for default judgment made findings of fact which barred the relief requested by the movant. The order left no issues remaining to be resolved, and constituted the trial court's final ruling on the merits of the action; the trial court left the parties with no further recourse in that court, in such circumstances, the order was a final judgment and the appeal was within the jurisdiction of the Court of Appeals of Georgia. Standridge v. Spillers, 263 Ga. App. 401, 587 S.E.2d 862 (2003).
Appeal from order denying motion to dismiss indictment was dismissed.
- Because the trial court's order denying the defendant's motion to dismiss an indictment on immunity grounds under O.C.G.A. § 16-3-24.2 was not a final appealable order, the criminal matter was still pending below, and no other reason under O.C.G.A. § 5-6-34 was presented allowing an appeal from the order, the defendant's appeal was dismissed. Crane v. State, 281 Ga. 635, 641 S.E.2d 795 (2007).
Post-judgment interrogatories.
- Direct appeal of an order to respond to post-judgment interrogatories was improper, since the disputed discovery remained unanswered, and therefore, matters remained pending, so that the trial court's order was not final, and therefore appealable only by compliance with subsection (b) of O.C.G.A. § 5-6-34. Cornelius v. Finley, 204 Ga. App. 299, 418 S.E.2d 815 (1992); Dial v. Bent Tree Nat'l Bank, 215 Ga. App. 620, 451 S.E.2d 533 (1994).
Declaratory judgments have the force and effect of final judgments and are reviewable as such. Sunstates Refrigerated Servs., Inc. v. Griffin, 215 Ga. App. 61, 449 S.E.2d 858 (1994).
Order directing accounting.
- Paragraph (a)(3) of O.C.G.A. § 5-6-34, allowing direct appeal of a judgment or order "directing that an accounting be had," does not provide for a direct appeal of all orders appointing an auditor; thus, the relief requested in the complaint must be reviewed to determine the appropriateness of a direct appeal. Parmar v. Khera, 215 Ga. App. 71, 449 S.E.2d 894 (1994).
In a declaratory judgment action for dissolution of a partnership, an accounting, and damages, direct appeal of a sua sponte order for the appointment of an auditor was appropriate. Parmar v. Khera, 215 Ga. App. 71, 449 S.E.2d 894 (1994).
Order denying application for leave to file quo warranto is an appealable judgment under subsection (a) of this section. Thibadeau v. Henley, 233 Ga. 884, 213 S.E.2d 657 (1975).
Order finding contempt.
- Direct appeal may be taken from an order holding one in contempt of court. Manning v. MNC Consumer Disct. Co., 212 Ga. App. 824, 442 S.E.2d 919 (1994).
Refusal to grant written motion for speedy trial.
- Refusal by judge of superior court to grant to the defendant in a criminal case not affecting the defendant's life the defendant's written motion for speedy trial pursuant to a constitutional right thereto is an appealable judgment. Reid v. State, 116 Ga. App. 640, 158 S.E.2d 461 (1967).
Overruling of general demurrer (now motion to dismiss) to election contest proceeding is appealable. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).
Voluntary dismissal.
- Plaintiff's own voluntary dismissal with prejudice of counts of the plaintiff's complaint did not constitute a final, appealable judgment for purposes of appellate review of rulings on the partial grant of summary judgment entered by the trial court more than 30 days from the filing of the notice of appeal. Studdard v. Satcher, Chick, Kapfer, Inc., 217 Ga. App. 1, 456 S.E.2d 71 (1995).
Order denying motion to strike voluntary dismissal is appealable. Pizza Ring Enters., Inc. v. Mills Mgt. Sources, Inc., 154 Ga. App. 45, 267 S.E.2d 487 (1980).
Order merely stating "defendant's motion to dismiss is granted."
- When court did not use language "dismissed," or "petition is dismissed," but merely "defendant's motion to dismiss is hereby granted," this was a final judgment within meaning of section. Lawler v. Georgia Mut. Ins. Co., 156 Ga. App. 265, 276 S.E.2d 646 (1980); Becker v. Fairman, 167 Ga. App. 708, 307 S.E.2d 520 (1983)overruled on other grounds.
Denial of motion authorized by Ga. L. 1967, p. 226, §§ 26, 27, 30 (see O.C.G.A. § 9-11-60) to set aside and vacate judgment was final and appealable under former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34). Farr v. Farr, 120 Ga. App. 762, 172 S.E.2d 158 (1969).
Judgment on petition for writ of habeas corpus is a final judgment from which appeal can and must be taken within 30 days after judgment is rendered. Dismuke v. State, 229 Ga. 347, 190 S.E.2d 915 (1972).
Judgment that no compensation is to be paid to condemnor in condemnation proceeding.
- When property is condemned and judgment provides that no compensation is to be paid by the condemnor, there is no question to be presented to the jury as to value, and such judgment is final and subject to review without certificate. City of Atlanta v. Turner Adv. Co., 234 Ga. 1, 214 S.E.2d 501 (1975).
Dismissal of appeal by trial court from order granting interlocutory injunction.
- Because this section allows direct appeal from order granting interlocutory injunction, dismissal of such appeal by trial court is likewise appealable without certificate of review. Azar v. Baird, 232 Ga. 81, 205 S.E.2d 273 (1974).
Deferred ruling on request for interlocutory relief.
- Trial court's decision to defer a ruling until a jury determined issues of fact effectively denied the plaintiff's request for interlocutory relief and was equivalent to a refusal to grant an application for an interlocutory injunction, and the decision was directly appealable. Georgia Power Co. v. Hunt, 266 Ga. 331, 466 S.E.2d 846 (1996).
Denial of injunctive relief against zoning board.
- Appeal from denial of injunction filed to enforce a zoning ordinance was not a superior court review of an administrative decision; it was therefore directly appealable under paragraph (a)(4) of O.C.G.A. § 5-6-34, and did not fall under the purview of O.C.G.A. § 5-6-35(a)(1) so as to require the grant of an application for discretionary appeal. Harrell v. Little Pup Dev. & Constr., Inc., 269 Ga. 143, 498 S.E.2d 251 (1998).
Denial of a motion to compel arbitration.
- Although the denial of a motion to compel arbitration is subject to interlocutory appeal under subsection (b) of O.C.G.A. § 5-6-34, the denial may also be appealed after final judgment. Choate Constr. Co. v. Ideal Elec. Contrs., Inc., 246 Ga. App. 626, 541 S.E.2d 435 (2000).
Lender's direct appeal from an order denying the lender's motion to compel arbitration of a dispute under a loan agreement as to a borrower's spouse and the borrower's cross-appeal from the same order were dismissed because such an order was not appealable except as an interlocutory appeal under O.C.G.A. § 5-6-34(b), which was not preempted by 9 U.S.C. § 16(a)(1)(B) of the Federal Arbitration Act, 9 U.S.C. §§ 1-16; therefore, the order was not directly appealable and the appellate court lacked jurisdiction over both appeals. American Gen. Fin. Servs. v. Vereen, 282 Ga. App. 663, 639 S.E.2d 598 (2006).
Georgia's procedural prohibition on the direct appeal of an order denying a motion to compel arbitration is not preempted by the provisions for direct appeal in 9 U.S.C. § 16(a)(1)(B) of the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, because Georgia's prohibition on the direct appeal of such an order does not undermine the purposes or objectives of the FAA to enforce arbitration agreements; the certification of such an order for immediate appeal pursuant to O.C.G.A. § 5-6-34(b) provides parties with an avenue for seeking appellate review that is not inconsistent with the objectives of the FAA to enforce legitimate arbitration agreements, and while the denial of an application for interlocutory appeal may delay arbitration, such a delay is not tantamount to the failure to enforce valid arbitration agreements contrary to the objectives of the FAA. American Gen. Fin. Servs. v. Vereen, 282 Ga. App. 663, 639 S.E.2d 598 (2006).
Order confirming arbitration award.
- Appellate court had jurisdiction over the order confirming the arbitration award in favor of the former employer because at the time the trial court signed the order, the petition to confirm the arbitration award was the only matter pending before the trial court and, thus, the order granting the petition was final as the order left no issues remaining to be resolved. Mughni v. Beyond Management Group, Inc., 349 Ga. App. 398, 825 S.E.2d 829 (2019).
Order requiring action that can affect rights of parties.
- Order is appealable if the order requires action that can affect rights of parties to the litigation. Such order is in nature of interlocutory mandatory injunction which is appealable. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974).
Denial of motion to vacate class determination arbitration award.
- Trial court's order denying a company's motion to vacate a class determination arbitration award was a final one under O.C.G.A. § 5-6-34(a)(1). Once the trial court concluded that the company did not comply with the limitation period set forth in O.C.G.A. § 9-9-13(a), nothing remained for the trial court's consideration; therefore, an appeal could not be considered interlocutory, and the company was not required to file an application for discretionary appeal as a prerequisite to the appellate court obtaining jurisdiction. Cypress Communs., Inc. v. Zacharias, 291 Ga. App. 790, 662 S.E.2d 857 (2008).
Denial of order to release tax funds not final and class action still pending.
- Appellate court lacked jurisdiction over the school district's direct appeal from the trial court's order denying the district's request to order the city to release to the school district the tax funds the city was holding pursuant to a prior court order because it was not a final order as the taxpayer's claim against the city was still pending as class certification had been granted. City of Dublin Sch. Dist. v. MMT Holdings, LLC, 351 Ga. App. 112, 830 S.E.2d 487 (2019).
Judgment of reversal by the superior court is not a final judgment within the meaning of paragraph (a)(1) of O.C.G.A. § 5-6-34 when the case is remanded to the lower tribunal for further consideration. Mayor of Hinesville v. Gastin, 178 Ga. App. 776, 344 S.E.2d 744 (1986).
Denial of a plea in bar asserting immunity from prosecution pursuant to O.C.G.A. § 19-7-5(d) does not constitute a final judgment, nor is the order otherwise directly appealable. Austin v. State, 179 Ga. App. 235, 345 S.E.2d 688 (1986).
Order overruling defendant's traverse in garnishment proceedings was a final judgment when the court ordered funds paid into the court to be distributed. Perry v. Freeman, 163 Ga. App. 186, 293 S.E.2d 381 (1982).
Pretrial order granting a motion to cancel a notice of lis pendens falls within the small class of cases beyond the confines of the final-judgment rule and is directly appealable. Scroggins v. Edmondson, 250 Ga. 430, 297 S.E.2d 469 (1982).
Denial of motion to enter valid judgment of sentence.
- Trial court's denial of a defendant's motion to enter a valid judgment of sentence is subject to appeal to the Court of Appeals under O.C.G.A. § 5-6-34(a). Barraco v. State, 252 Ga. App. 25, 555 S.E.2d 244 (2001).
Sentence prerequisite to appeal.
- Appellate court erred in dismissing the defendant's appeal of a multi-count case since the case was not final and subject to appeal until a sentence had been entered on each count of the indictment for which the defendant was found guilty. Keller v. State, 275 Ga. 680, 571 S.E.2d 806 (2002).
Because the trial court did not either enter a written sentence or enter a written notation that the count merged into another for purposes of sentencing, the defendant's case was not ripe for appeal, even though the trial court did enter a written judgment of conviction and sentence on other counts of the indictment. Bass v. State, 284 Ga. App. 331, 643 S.E.2d 851 (2007).
Denial of timely filed plea of double jeopardy is appealable without resort to the interlocutory appeal procedures of subsection (b) of O.C.G.A. § 5-6-34, when the plea is filed sufficiently in advance of trial so as not to constitute a delaying device. Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982).
Timely filed plea of double jeopardy is directly appealable without resort to the interlocutory appeal procedures set forth in O.C.G.A. § 5-6-34. Rogers v. State, 166 Ga. App. 299, 304 S.E.2d 108 (1983).
Denial of the defendant's double jeopardy pleas may be appealed without application and certification, which otherwise would be required under subsection (b) of O.C.G.A. § 5-6-34. Young v. State, 251 Ga. 153, 303 S.E.2d 431 (1983).
Timely filed appeal from the denial of a plea of former jeopardy may be made directly to the Court of Appeals. Nave v. State, 166 Ga. App. 466, 304 S.E.2d 491 (1983).
Denial of a plea of former jeopardy is directly appealable without resort to interlocutory appeal procedures. Bishop v. State, 176 Ga. App. 357, 335 S.E.2d 742 (1985).
Denial of double jeopardy claim without written order.
- Appeal from the denial of a claim of former jeopardy regarding which there was no written order was subject to dismissal, since there was no entry of judgment. Bishop v. State, 176 Ga. App. 357, 335 S.E.2d 742 (1985).
State has a right to appeal the grant of a plea in bar based on double jeopardy. State v. Stowe, 167 Ga. App. 65, 306 S.E.2d 663 (1983).
Denial of motion to dismiss based on speedy trial statute.
- Denial of a motion to dismiss based upon O.C.G.A. § 17-7-170 is directly appealable under subsection (a) of O.C.G.A. § 5-6-34. Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985).
Criminal defendant is not required to follow the interlocutory procedures of subsection (b) of O.C.G.A. § 5-6-34 when appealing, prior to the conclusion of a trial on the merits, from the denial of a plea in bar based on O.C.G.A. § 17-7-170. Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (1985).
Complaint terminated by grant of motion for summary judgment.
- When the plaintiff's complaint for an order setting aside or modifying the investigative demand under subsection (c) of O.C.G.A. § 10-1-403 has been terminated by the grant of the motion for summary judgment of Administrator of the Office of Consumer Affairs, the judgment upon this statutory complaint is final and therefore is appealable. Tri-State Bldg. & Supply, Inc. v. Reid, 251 Ga. 38, 302 S.E.2d 566 (1983).
Trial court's denial of the defendant's motion to dismiss the plaintiff's appeal, following a grant of summary judgment to the defendant, was not interlocutory but was directly appealable. ITT Terryphone Corp. v. Modems Plus, Inc., 171 Ga. App. 710, 320 S.E.2d 784 (1984).
Court's supplemental order was the grant of a mandatory injunction and was appealable.
- Court's supplemental order directing a county to place an employee in another position was the grant of a mandatory injunction and was directly appealable, even though the entire case lacked finality because of a pending claim for lost wages. Glynn County v. Waters, 268 Ga. 500, 491 S.E.2d 370 (1997).
Order finding children deprived.
- When the juvenile court entered an order finding certain children deprived, but made no final disposition with regard to the custody of the children, no final order has been entered in the case, there is nothing for the Court of Appeals to review, and the appeal must be dismissed. In re M.K.C., 166 Ga. App. 261, 304 S.E.2d 430 (1983).
Order within a deprivation proceeding awarding temporary custody of a child to the child's paternal grandmother for a period of 24 months was a "final order" within the meaning of O.C.G.A. § 5-6-34(a)(1), from which the mother properly took a direct appeal within 30 days from the entry thereof; deprivation proceedings did not fall within the scope of O.C.G.A. § 5-6-35(a)(2), so no application for appellate review was required. In the Interest of S.J., 270 Ga. App. 598, 607 S.E.2d 225 (2004).
Temporary order changing custody directly appealable.
- Mother was permitted to appeal a temporary order changing custody of the parties' children to the father without complying with O.C.G.A. §§ 5-6-34(b) and5-6-35 because § 5-6-34 provided that all modifications of child custody orders filed on or after January 1, 2008 were directly appealable and were no longer subject to the interlocutory appeal procedures. Taylor v. Curl, 298 Ga. App. 45, 679 S.E.2d 80 (2009).
Because an order modified the custody of a mother's children, the order was directly appealable under O.C.G.A. § 5-6-34(a)(11) and was not subject to the interlocutory or discretionary appeal procedures. Long v. Long, 303 Ga. App. 215, 692 S.E.2d 811 (2010).
Order discontinuing reunification between parent and child was appealable.
- In a deprivation case, an order of the juvenile court authorizing a county department of family and children services to discontinue efforts to reunite a child and her mother was a final appealable judgment. In re S.A.W., 228 Ga. App. 197, 491 S.E.2d 441 (1997).
Ruling on petition to modify visitation was child custody case.
- As a parent's petition to modify a visitation schedule was a "child custody case" for purposes of O.C.G.A. § 5-6-34(a)(11), and as the legislature intended to remove child custody cases from the operation of O.C.G.A. § 5-6-35(a)(2) when the legislature excised references to such cases from that statute, the parent was entitled to file a direct appeal from the trial court's final judgment on the petition. Moore v. Moore-McKinney, 297 Ga. App. 703, 678 S.E.2d 152 (2009).
Court had jurisdiction to hear appeal of child support modification.
- Appellate court believed that the father was entitled to appeal the child support portion of the order that modified both visitation and child support. While the appeal in this case strictly dealt with the child support award, this award was rendered in a child custody case and was directly appealable under O.C.G.A. § 5-6-34(11). Collins v. Davis, 318 Ga. App. 265, 733 S.E.2d 798 (2012).
Dismissal of petition to change custody different proceeding from case involving family violence petitions.
- Appellate court lacked jurisdiction to review the trial court's order dismissing the father's petition to change custody because the order was a final judgment issued in a separate case from that involving the family violence petitions and the father failed to file the application for review within the required time period. Perlman v. Perlman, 318 Ga. App. 731, 734 S.E.2d 560 (2012).
Order transferring case from one juvenile court to another.
- Order transferring the case from one juvenile court to another, from which the defendant juvenile sought to appeal, was interlocutory and not appealable without compliance with the interlocutory appeal procedure of O.C.G.A. § 5-6-34(b) and, thus, because no final judgment existed the appeal was premature. In the Interest of W. L., 335 Ga. App. 561, 782 S.E.2d 464 (2016).
Judgment granting plea of insanity.
- When a plea of insanity was granted and the defendant was transferred to the Department of Human Resources (DHR), the DHR could appeal directly without following the interlocutory appeal procedure. Georgia Dep't of Human Resources v. Drust, 264 Ga. 514, 448 S.E.2d 364 (1994).
Fieri facias is not an order of final judgment tolling the time for appeal. Newton v. K.B. Property Mgt. of Ga., Inc., 166 Ga. App. 901, 306 S.E.2d 5 (1983).
Superior court order remanding a case back to the administrative tribunal does not constitute a final judgment. State Health Planning Review Bd. v. Piedmont Hosp., 173 Ga. App. 450, 326 S.E.2d 814 (1985).
Order declaring that defendants had not defaulted with respect to a settlement agreement and ordering the parties to comply with the terms of the agreement did not constitute a final judgment when the order did not expressly provide either that the action was dismissed or that the plaintiffs receive judgment in accordance with the terms of the agreement. Zeitman v. McBrayer, 201 Ga. App. 767, 412 S.E.2d 287 (1991).
Appeal of order finding no further unresolved issues.
- Under O.C.G.A. § 5-6-34(a)(1), all prior rulings of the trial court were reviewable because the first partner timely appealed from the trial court's order finding that there were no further unresolved issues in a partnership dissolution case. Barnaby v. Scott, 299 Ga. App. 691, 683 S.E.2d 333 (2009), cert. denied, No. S10C0027, 2010 Ga. LEXIS 51 (Ga. 2010).
Imposition of first-offender status.
- Court of Appeals lacks jurisdiction to entertain an appeal from a conviction upon imposition of first-offender status absent a written trial court order imposing first offender status upon the defendant or a written judgment of conviction and sentence. Littlejohn v. State, 185 Ga. App. 31, 363 S.E.2d 327 (1987).
Request for clarification.
- Trial court order expressing uncertainty as to the meaning of an appellate court's opinion in remanding a case was not a directly appealable final judgment, since it did not address a pending motion for judgment but only constituted a request by the trial court for clarification. Nationwide Mut. Ins. Co. v. Glaccum, 200 Ga. App. 108, 407 S.E.2d 90 (1991).
Trial court's order remanding case for hearing before the county board of equalization to allow the taxpayer to participate at the hearing regarding a property assessment was not a "final judgment," and required an application for interlocutory review. Rolleston v. Glynn County Bd. of Tax Assessors, 213 Ga. App. 552, 445 S.E.2d 345 (1994).
Materialman's action on a lien against property was not an action for damages necessitating a discretionary appeal from a judgment on the pleadings and the fact that the property owners chose to post a bond to satisfy any judgment on the lien did not change the nature of the underlying action. Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 469 S.E.2d 469 (1996).
Order to pay rent pending appeal.
- Similar to a postjudgment order requiring the posting of a supersedeas bond, a postjudgment order requiring the payment of rent pending appeal under O.C.G.A. § 44-7-56 is subject to direct appeal, as there is nothing left to be decided in the trial court. Owens v. Green Tree Servicing LLC, 300 Ga. App. 22, 684 S.E.2d 99 (2009).
Failure of superior court to fully adjudicate case on appeal from probate court.
- When, in an appeal from an order of the probate court denying an executor's petition for compensation under O.C.G.A. § 53-6-143, the superior court's judgment, holding that the commission allowed as compensation was two and one half percent of the value of the property delivered in kind but not setting forth the property's value, was not final, as no final award of compensation was made, and the executor was required to follow interlocutory appeal procedures. Clark v. Davis, 242 Ga. App. 425, 530 S.E.2d 49 (2000).
Order denying substitution was not a final appealable order.
- Trial court's order denying substitution of the decedent's administrator as a party, in place of the decedent, was not a final appealable order and as such did not dismiss the complaint, but left issues remaining to be resolved. Williams v. City of Atlanta, 263 Ga. App. 113, 587 S.E.2d 261 (2003).
State could directly appeal from an order granting defendant's post-conviction motion for deoxyribonucleic acid (DNA) testing by an uncertified laboratory because the defendant filed only a post-conviction motion and did not file an extraordinary motion for new trial; the trial court ruled on the merits of the only pending motion, there was no issue remaining, and a direct appeal would not create absurd results. State v. Clark, 273 Ga. App. 411, 615 S.E.2d 143 (2005).
Enforcement of settlement agreement.
- Order enforcing an executed settlement agreement and denying the motion to dismiss the appeal was upheld because it was undisputed that the only attorney fees in question were those sought by the brother in a post-judgment motion under O.C.G.A. § 9-15-14 and the trial court's reservation of the issue did not render the judgment non-final but, rather, that judgment enforcing the settlement agreement was final and directly appealable. Miller v. Miller, Ga. App. , 846 S.E.2d 429 (2020).
Juvenile court's recommendations as to custody not appeallable.
- When a juvenile court's finding as to custody is in the nature of a recommendation to the superior court, the custody issue remains pending below and is not before the appellate court on appeal. In the Interest of M.E., 265 Ga. App. 412, 593 S.E.2d 924 (2004).
Ruling on will construction.
- Because a superior court's ruling in a probate matter was directed solely to the will construction issue placed before the court by a removal proceeding pursuant to O.C.G.A. § 53-7-75, after which the superior court returned the case to the probate court, because the administration of the estate remained pending, the superior court order was not a final judgment, and since the decedent's daughter failed to comply with the interlocutory procedures in O.C.G.A. § 5-6-34(b), the appellate court was without jurisdiction to hear an appeal brought by the daughter. Bandy v. Elmo, 280 Ga. 221, 626 S.E.2d 505 (2006).
Delinquency adjudication.
- Defendant juvenile's appeal of an order denying a motion to reconsider, vacate, or modify the delinquent adjudication was proper because the denial of the motion was a final judgment and was directly appealable; therefore, the defendant could appeal the ruling on disposition as well as on the original finding of delinquency. An order denying a motion under O.C.G.A. § 15-11-40(b) seeking a modification based on changed circumstances in a delinquency matter is a final judgment directly appealable under O.C.G.A. §§ 5-6-34(a)(1) and15-11-3. In the Interest of J. L. K., 302 Ga. App. 844, 691 S.E.2d 892 (2010).
Order of disposition entered upon revocation of a juvenile's probation.
- Provisions of O.C.G.A. § 5-6-35(a)(5) and (d) do not apply to appeals from orders revoking juveniles' probation because orders of disposition under O.C.G.A. § 15-11-65(a) are final judgments, directly appealable under O.C.G.A. § 5-6-34(a)(1); therefore, an order of disposition entered upon the revocation of a juvenile's probation was directly appealable and the Court of Appeals of Georgia had jurisdiction over such an appeal. In the Interest of N.M., 316 Ga. App. 649, 730 S.E.2d 127 (2012).
Compliance with the requirement of subsection (b).
- In reviewing cases on appeal the court will not pass upon questions on which no final ruling has ever been made by the trial judge or when there is no compliance with the requirement of O.C.G.A. § 5-6-34(b) that the trial court certify the court's order for immediate review. Smith & Wesson Corp. v. City of Atlanta, 273 Ga. 431, 543 S.E.2d 16 (2001).
Opposing party's failure to appeal any alleged error regarding the sanctions order entered against the opposing party after a final judgment was entered in the declaratory judgment action in which the sanctions order was entered precluded the opposing party from challenging an error regarding entry of the sanctions order when the opposing party later appealed the contempt order entered against the opposing party for willfully violating the sanctions order by admittedly not paying the amount specified in that order. Franklin v. Gude, 259 Ga. App. 521, 578 S.E.2d 170 (2003).
No requirement to appeal within 30 days when order appealed from not final judgment.
- Trial court erred in denying the children's petition for writ of mandamus to compel a judge to allow the children to appeal from the order dismissing the children's appeals because the judge's prior orders were not final judgments within the meaning of O.C.G.A. § 5-6-34(a)(1); thus, the children were not required to appeal from the rulings within 30 days after entry in order to preserve the children's right to pursue appellate review under O.C.G.A. § 5-6-38(a). Sotter v. Stephens, 291 Ga. 79, 727 S.E.2d 484 (2012).
Judgment reserving issue regarding motion for expenses not final.
- Supreme court reversed the decision of the court of appeals that a judgment was final when the trial court entered a judgment that resolved all of the issues in a case except the amount to be awarded for the expenses of service of process because the reserved issue regarding the motion for expenses remained pending at the time the trial court awarded summary judgment to the defendant. Edokpolor v. Grady Mem. Hosp. Corp., 302 Ga. 733, 808 S.E.2d 653 (2017).
Rulings Not Appealable Without Certificate
1. In General
Refusal to stay proceedings in another case.
- When, in a ruling on a request for a restraining order, interlocutory injunction, and stay of proceedings in another case, the court simply refused to stay the proceedings in the other case, concluding that the court had no jurisdiction to do so, such order was not one which refused an interlocutory injunction and the interlocutory appeal procedure of O.C.G.A. § 5-6-34 applied. Grange Mut. Cas. Co. v. Riverdale Apts., 218 Ga. App. 685, 463 S.E.2d 46 (1995).
Dismissal proper as judgment not final.
- Appeal taken from two orders that appeared to be non-final, was dismissed; moreover, as no certificate of immediate review was obtained, and since no amendment was filed to correct the defect in the notice of appeal, no other recourse remained. Southwest Health & Wellness, LLC v. Work, 282 Ga. App. 619, 639 S.E.2d 570 (2006).
Order denying motion to suppress evidence is not a final judgment within subsection (a) of this section. Cody v. State, 116 Ga. App. 331, 157 S.E.2d 496 (1967); Holton v. State, 173 Ga. App. 249, 326 S.E.2d 240 (1985); Genter v. State, 218 Ga. App. 311, 460 S.E.2d 879 (1995).
Denial of motion for change of venue is not a final judgment and there is no provision for appeal therefrom without certificate of immediate review. Brooks v. State, 229 Ga. 593, 194 S.E.2d 256 (1972).
Order transferring a case from one county's superior court to another county's superior court is not a final judgment because the case is still pending in the court below. The order is thus interlocutory and not appealable without a certificate of immediate review from the lower court and an appropriate application to the Court of Appeals. Griffith v. Georgia Bd. of Dentistry, 175 Ga. App. 533, 333 S.E.2d 647 (1985).
Grant of motions for change of venue.
- Insureds were authorized to bring the insureds' action against an insurer, seeking uninsured motorist coverage, in the county of insured's residence pursuant to O.C.G.A. § 33-4-1(4) and, accordingly, the trial court erred in transferring their case to another county pursuant to the insurer's motion alleging improper venue; the matter of whether venue was proper was reviewable by the appellate court pursuant to O.C.G.A. § 5-6-34(d) when the insureds' matter had been dismissed by the trial court and the insureds' sought review thereof. Morton v. Fuller, 264 Ga. App. 799, 592 S.E.2d 460 (2003).
Grant of motion to set aside judgment, like grant of motion for new trial, leaves case still pending in court and thus is not a final judgment. Mayson v. Malone, 122 Ga. App. 814, 178 S.E.2d 806 (1970).
Orders regarding garnishment judgments.
- Neither order overruling, nor order granting motion to set aside judgment against garnishee is final. Finch v. Kilgore, 120 Ga. App. 320, 170 S.E.2d 304 (1969).
Pretrial bail order.
- When the defendant failed to follow the requisite interlocutory procedures to appeal the order setting the defendant's pretrial bond, the defendant's direct appeal was dismissed for lack of jurisdiction. Wimberly v. State, 235 Ga. App. 388, 508 S.E.2d 699 (1998).
Orders denying bond.
- On remand, the habeas court was directed to hold a hearing on the petitioner's habeas petition because the record showed that the petitioner exhausted efforts to seek an interlocutory review of the trial court's order denying bond and the petitioner had no other adequate remedy for meaningful review of the lawfulness of continued detention. Tumlinson v. Dix, Ga. , 844 S.E.2d 765 (2020).
Order denying motion to require that garnishment bond be strengthened is not a final judgment from which appeal will lie under subsection (a) of this section, and a review of order can be had only under certificate of trial judge as is provided in subsection (b) of this section. Wilson v. Wilson, 130 Ga. App. 175, 202 S.E.2d 681 (1973).
Order vacating prior order substituting parties is not a final judgment since the order merely leaves issues therein involved open for further determination. Thus, absent certificate of immediate review question will not be considered by court. Franklin v. Sea Island Bank, 120 Ga. App. 654, 171 S.E.2d 866 (1969).
When a court order expressly provided that attorney fees were awarded for the cost of bringing a motion for sanctions, and that damages for bad faith were yet to be determined, it was not an appealable judgment within the meaning of O.C.G.A. § 5-6-34 and, absent a certificate of reviewability, the notice of appeal as to that order was premature and properly dismissed. Northen v. Mary Anne Frolick & Assocs., 235 Ga. App. 804, 510 S.E.2d 122 (1998).
Order granting writ of possession is not final within meaning of subsection (a) of this section. Golden v. Gray, 156 Ga. App. 596, 275 S.E.2d 162 (1980).
Directed verdict or order sustaining motion for directed verdict is not appealable as judgment and not verdict is the appealable decision. Roderiguez v. Newby, 130 Ga. App. 139, 202 S.E.2d 565 (1973).
Order overruling motion relating to temporary alimony.
- Appeal from order overruling the husband's motion to declare as null and void any further proceedings in matter relating to temporary alimony and child custody is not one which may be appealed to the Supreme Court or the Court of Appeals without a certificate for immediate review. Hatcher v. Hatcher, 229 Ga. 252, 190 S.E.2d 535 (1972).
Appeal from temporary alimony order.
- Party seeking appellate review of an order awarding temporary alimony must comply with the interlocutory appeal procedure of O.C.G.A. § 5-6-34. Bailey v. Bailey, 266 Ga. 832, 471 S.E.2d 213 (1996).
Order dismissing party.
- When there has been no express determination of no just reason for delay or direction that order for entry of judgment is final, providing for immediate appeal, or issuance of certificate as provided for by subsection (b) of this section, an appeal is premature. Dismissal of a party is no different from order precluding intervenor from becoming a party. American Mut. Liab. Ins. Co. v. Moore, 120 Ga. App. 624, 171 S.E.2d 751 (1969).
Unless court in order dismissing one of multiple defendants makes express determination of finality as set out in Ga. L. 1966, p. 609, § 54 (see O.C.G.A. § § 9-11-54(b)), case was still pending in trial court and procedure for interlocutory appeals must be followed. Home Mart Bldg. Centers, Inc. v. Wallace, 139 Ga. App. 49, 228 S.E.2d 22 (1976).
Order granting one codefendant's motion to dismiss and an order denying the plaintiff's motion to vacate the order of dismissal were not appealable as final orders because the case remained pending against the other codefendants. Knowles v. Old Spartan Life Ins. Co., 213 Ga. App. 204, 444 S.E.2d 136 (1994).
Order disqualifying counsel.
- Order disqualifying the plaintiff's counsel was not directly appealable. Lassiter Properties, Inc. v. Davidson Mineral Properties, Inc., 230 Ga. App. 216, 495 S.E.2d 663 (1998).
Order denying motion to recuse trial judge.
- Because review after entry of final judgment of orders denying motions to recuse can protect the parties' interests adequately, such orders are not appealable as collateral orders as to hold otherwise ignores the explicit language of O.C.G.A. § 5-6-34(b); thus, the Georgia Court of Appeals overrules Braddy v. State, 316 Ga. App. 292, 729 S.E.2d 461 (2012). Murphy v. Murphy, 322 Ga. App. 829, 747 S.E.2d 21 (2013).
Mother's appeal of an order denying the mother's motion to recuse the trial court judge in a change of custody case brought by the father was dismissed because the order did not award, refuse to change, or modify child custody; thus, it was not appealable under O.C.G.A. § 5-6-34(a)(11) and the appellate court lacked jurisdiction. Murphy v. Murphy, 322 Ga. App. 829, 747 S.E.2d 21 (2013).
Overruling special demurrer.
- Objections to overruling a special demurrer are reviewable by the appellate courts under the interlocutory appeal procedures of subsection (b) of O.C.G.A. § 5-6-34, or after conviction. Ivey v. State, 210 Ga. App. 782, 437 S.E.2d 810 (1993).
Special demurrer in RICO action should have been granted.
- Sparse allegations in the indictment for violation of the Georgia Racketeer Influence and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., which said nothing at all about the nature of the connection, was insufficient to enable the defendants to prepare for trial; accordingly, the special demurrers by the defendants ought to have been sustained. Kimbrough v. State, 300 Ga. 878, 799 S.E.2d 229 (2017).
Order interpreting settlement agreement.
- Wife did not file a declaratory judgment action since the wife sought guidance with respect to provisions in a settlement agreement in order to compel a husband to provide the wife with additional funds; as the trial court's decision was interlocutory and the wife did not secure a certificate of immediate review, the discretionary appeal to resolve whether the trial court's declaratory ruling was appealable as a final judgment was dismissed. Gelfand v. Gelfand, 281 Ga. 40, 635 S.E.2d 770 (2006).
When ex contractu and ex delicto actions are joined, dismissal of one leaves other pending.
- When ex contractu and ex delicto actions are joined in the same complaint, but ex delicto count is dismissed by trial judge, ex contractu count still remains; therefore, cause is still pending in court below, and appeal would be premature. Stephens v. United Trust Life Ins. Co., 118 Ga. App. 514, 164 S.E.2d 335 (1968).
Order sustaining or overruling objections to interrogatories.
- While orders denying or requiring answers to interrogatories are reviewable on appeal after final judgment if they have affected final judgment and are not moot, an order sustaining or overruling objections to interrogatories is merely interlocutory and not being a final judgment such order is not an appealable judgment. Louisville & N.R.R. v. Clark, 114 Ga. App. 755, 152 S.E.2d 694 (1966).
Order for interrogatories or depositions is an interlocutory order. General Recording Corp. v. Chadwick, 136 Ga. App. 213, 220 S.E.2d 697 (1975).
Order compelling a party to answer interrogatories and requests to produce, with sanctions, is not subject to direct appeal and requires a certificate of immediate review. American Express Co. v. Yondorf, 169 Ga. App. 498, 313 S.E.2d 756 (1984).
Appeal from superior court's review of use and enforcement of investigative powers of the board of medical examiners required discretionary appeal procedures. Rankin v. Composite State Bd. of Medical Exmrs., 220 Ga. App. 421, 469 S.E.2d 500 (1996).
Judgment denying intervention is not an appealable judgment and a motion to dismiss an appeal must be granted. Henderson v. Atlanta Transit Sys., 233 Ga. 82, 210 S.E.2d 4 (1974); Prison Health Servs., Inc. v. Georgia Dep't of Admin. Servs., 265 Ga. 810, 462 S.E.2d 601 (1995).
Appeal which merely challenges party's right to intervene in action falls within subsection (b) of this section which allows appeal from order, decision, or judgment not otherwise subject to direct appeal only when trial judge certifies it for immediate review. Harrison v. Hawkins, 228 Ga. 522, 186 S.E.2d 779 (1972).
Because the great-grandparents failed to follow the interlocutory appeal procedure outlined in O.C.G.A. § 5-6-34(b) in appealing an order denying their motion to intervene in a deprivation action, the case remained pending below, and no final order had been entered, the great-grandparent's appeal from that denial was dismissed. In the Interest of H.E.M., 283 Ga. App. 354, 641 S.E.2d 597 (2007).
Judgment sustaining or dismissing plea in abatement is not such a final judgment as can be made subject of appeal within meaning of section. Peach v. State, 116 Ga. App. 703, 158 S.E.2d 701 (1967).
Ruling on plea of abatement on ground that similar suit between same parties is pending.
- Sustaining or overruling of plea in abatement on ground that there is another suit pending between same parties on same cause of action is not a final judgment from which an appeal can be taken. Richard's Buick, Inc. v. Sease, 116 Ga. App. 232, 156 S.E.2d 365, aff'd, 223 Ga. 754, 158 S.E.2d 402 (1967).
Judgment overruling plea to jurisdiction is not included in those named in this section, from which appeal may be taken. Carlisle v. Carlisle, 227 Ga. 221, 179 S.E.2d 769 (1971).
Judgment denying plea of insanity is not subject to direct appeal unless trial judge certifies judgment for immediate review. Spell v. State, 120 Ga. App. 398, 170 S.E.2d 701 (1969); Spell v. State, 225 Ga. 705, 171 S.E.2d 285 (1969).
Order of court overruling and dismissing plea of res judicata is not such an order, judgment, or ruling from which an appeal may be taken, without trial judge certifying matter to be of such importance that immediate review should be had. General Shoe Corp. v. Hood, 119 Ga. App. 648, 168 S.E.2d 326 (1969).
Overruling of defendant's plea in bar which leaves case pending for trial is not a final judgment from which an appeal can be taken, absent certificate for immediate review. Bruce v. State, 122 Ga. App. 159, 176 S.E.2d 515 (1970); Partain v. State, 138 Ga. App. 171, 225 S.E.2d 736 (1976).
Denial of motion for judgment notwithstanding mistrial is not a judgment or decision from which an appeal may be taken without first obtaining a certificate for immediate review from the trial judge. Phillips v. State, 153 Ga. App. 410, 265 S.E.2d 293 (1980).
Denial of prayers of traverse.
- When the trial court denies prayers of traverse and the defendant attempts to appeal this order, but fails to obtain a certificate of review as required by subsection (b) of this section, the appeal shall be dismissed. Southern Cross Disct. Co. v. W.R. Bean & Son, 123 Ga. App. 363, 180 S.E.2d 926 (1971).
Failure of court to declare act of legislature unconstitutional is not a final judgment and, therefore, in absence of certificate of trial court, is not appealable. Lane v. Morrison, 226 Ga. 526, 175 S.E.2d 830 (1970).
Orders subject to revision.
- When orders are subject to revision, appeals are premature. Davis v. Transairco, Inc., 141 Ga. App. 544, 234 S.E.2d 134 (1977).
Grant of relief from supersedeas of permanent injunction is not an appealable judgment. Fulford v. Fulford, 225 Ga. 510, 170 S.E.2d 27 (1969).
Order entered following delinquency adjudicatory hearing under Code 1933, § 24-2409 (see O.C.G.A. § 15-11-15) was not a final judgment appealable under former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34), but was instead merely an order entered in a pretrial hearing similar to an arraignment. D.C.E. v. State, 130 Ga. App. 724, 204 S.E.2d 481 (1974).
Appeal from deprivation hearing rulings absent entry of final written order.
- When the appellant brought a direct appeal from the juvenile court's rulings on the issues of the appellant's delinquency and a transfer for the appellant's prosecution in the superior court made in the context of a deprivation hearing, and the record showed that no final written order as to the appellant's deprivation had ever been entered, the deprivation case is still pending in the juvenile court so that any rulings made in that case are interlocutory and, accordingly, the appellant's appeal was dismissed for lack of jurisdiction. In re J.B., 191 Ga. App. 797, 383 S.E.2d 184 (1989).
Divorce granted on pleadings by order leaving other issues for decision in trial court, is an interlocutory, not a final, order. Carr v. Carr, 238 Ga. 197, 232 S.E.2d 69 (1977).
Entry of judgment as to one or more but fewer than all claims or parties is not a final judgment under subsection (a) of this section and lacks res judicata effect unless the trial court makes express direction for entry of final judgment and determination that no just reason for delaying finality of judgment exists. Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978); Wise v. Georgia State Bd. for Examination, Qualification & Registration of Architects, 244 Ga. 449, 260 S.E.2d 477 (1979); Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981).
Orders or judgments which do not address all claims not appealable.
- In absence of express determination by court that there is no just reason for delay and express direction for entry of judgment, no order or decision which adjudicates with respect to fewer than all claims or all parties is final or appealable. Roderiguez v. Newby, 130 Ga. App. 139, 202 S.E.2d 565 (1973).
When there is a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment. In such circumstances, there must be an express determination under O.C.G.A. § 9-11-54(b) (judgments), or there must be compliance with the requirements of subsection (b) of O.C.G.A. § 5-6-34. When neither of these sections are followed, an appeal is premature and must be dismissed. Spivey v. Rogers, 167 Ga. App. 729, 307 S.E.2d 677 (1983); Johnson v. Hospital Corp. of Am., 192 Ga. App. 628, 385 S.E.2d 731, cert. denied, 192 Ga. App. 902, 385 S.E.2d 731 (1989); King v. Bishop, 198 Ga. App. 622, 402 S.E.2d 307, cert. denied, 198 Ga. App. 898, 402 S.E.2d 307 (1991).
Because an order transferring venue entered judgment as to fewer than all of the claims or parties in the action, it was not a final judgment under paragraph (a)(1) of O.C.G.A. § 5-6-34, and as a result, in order for an appeal to be possible, it would have been necessary for the plaintiffs to request certification from the trial judge, within ten days of entry of the order, that it was of such importance to the case that immediate review should be had. Jenkins v. National Union Fire Ins. Co., 650 F. Supp. 609 (N.D. Ga. 1986).
Judgment against defendant with right in plaintiff to present evidence as to unliquidated damages, leaves case pending, and appeal is premature. Black v. Sturdivant, 131 Ga. App. 698, 206 S.E.2d 526 (1974).
Judgment of condemnation not final while appeal to jury as to value is pending.
- When appeal to jury as to value is pending, judgment of condemnation under special master's condemnation procedure is not a final judgment subject to review in absence of certificate as provided for by subsection (b) of this section. City of Atlanta v. Turner Adv. Co., 234 Ga. 1, 214 S.E.2d 501 (1975).
Ruling on motion to purge jury is interlocutory and outside definition of those judgments or orders listed in this section which entitle party to an appeal. Ruth v. Kennedy, 117 Ga. App. 632, 161 S.E.2d 410 (1968).
When trial of suit results in mistrial, there is no final judgment in case. Selman's Express, Inc. v. Wright, 119 Ga. App. 752, 168 S.E.2d 658 (1969).
Trial court's rulings declaring a mistrial and making pretrial rulings for a new trial involving a judgment debtor did not fall within the provisions of O.C.G.A. § 5-6-34(d) and were not appealable; the case against the debtor remained pending below, although other claims involving the debtor's transferees had been resolved by a jury and were final. Chapman v. Clark, 313 Ga. App. 820, 723 S.E.2d 51 (2012).
Verdict is not an appealable decision or judgment within purview of section. Williams v. Keebler, 222 Ga. 437, 150 S.E.2d 674, answer conformed to, 114 Ga. App. 332, 151 S.E.2d 483 (1966); Teppenpaw v. Blalock, 121 Ga. App. 320, 173 S.E.2d 442, aff'd, 226 Ga. 619, 176 S.E.2d 711 (1970).
When there is only an appeal from a jury verdict, and no description of an appealable judgment or order, there is nothing to review, and the Court of Appeals has no jurisdiction since it is a court for corrections of errors of law alone. Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436, 150 S.E.2d 618, answer conformed to, 114 Ga. App. 332, 151 S.E.2d 486 (1966).
Verdict of jury is not an appealable judgment under section, regardless of whether the verdict resulted from direction or was by deliberation. Hurst v. Starr, 226 Ga. 42, 172 S.E.2d 604 (1970).
Appeal from judgment on verdict brought while motion for new trial is pending is premature and will be dismissed. Smith v. Smith, 128 Ga. App. 29, 195 S.E.2d 269 (1973).
Case remains pending where no ruling on motions, defenses and counterclaims.
- When the appellant has filed motions, defenses, and counterclaims pursuant to Ga. L. 1975, p. 1213, § 3 (see O.C.G.A. §§ 44-14-267 and44-14-268) and no ruling by trial judge had been made thereon, such issues have not been finally determined and case was still pending in court below. Golden v. Gray, 156 Ga. App. 596, 275 S.E.2d 162 (1980).
Letter from an official within the office of the commissioner of the department of revenue was not an agency "decision" within the meaning of paragraph (a)(1) of O.C.G.A. § 5-6-34. Ford Motor Co. v. Collins, 257 Ga. 310, 357 S.E.2d 567 (1987).
Allegations of fraud.
- When there are no allegations of fraud in the complaint paragraph (a)(5) of O.C.G.A. § 5-6-34 does not apply. Thomas v. Barnett Bank, 203 Ga. App. 472, 416 S.E.2d 902 (1992).
Determination of liability without determination of damages.
- There having been no compliance with interlocutory appeal procedures of subsection (b) of O.C.G.A. § 5-6-34, a judgment is not final, and hence not appealable, either with respect to the codefendant's case or with respect to the case as a whole when the underlying issue of liability has been determined against only the codefendant, but the determination of damages is unsettled. Havischak v. Neal, 176 Ga. App. 203, 335 S.E.2d 469 (1985).
Order to pay past due rent.
- In dispossessory proceeding, order requiring appellant to pay to appellee certain past due rent was not a final judgment when, although the trial court indicated that if stipulated sums were not paid a writ of possession would be issued, the record did not reveal actual entry of a writ of possession. Rivera v. Housing Auth., 163 Ga. App. 648, 295 S.E.2d 336 (1982), cert. denied, 250 Ga. 461, 299 S.E.2d 39 (1983).
Trial court's denial of the defendant's demurrer making a constitutional challenge to the method of notification used by the Department of Public Safety in revoking a driver's license will not be reviewed when the defendant fails to make an application for interlocutory appeal. Webster v. State, 251 Ga. 465, 306 S.E.2d 916 (1983).
Denial of a motion for pretrial bail is an interlocutory matter requiring a defendant to follow the interlocutory procedure set forth in subsection (b) of O.C.G.A. § 5-6-34. Howard v. State, 194 Ga. App. 857, 392 S.E.2d 562 (1990); Mullinax v. State, 271 Ga. 112, 515 S.E.2d 839 (1999).
Direct appeal available for denial of bail.
- When a defendant's case is at an appellate stage and will not return to a pretrial stage unless and until the Georgia Supreme Court affirms the grant of new trial, during the state's appeal, the defendant's case cannot be considered to be pending in the court below; thus, the denial of a defendant's motion for appeal bond is directly appealable by the defendant. Johnson v. State, 304 Ga. 369, 818 S.E.2d 601 (2018).
Order denying discovery is premature in the absence of a certificate of immediate review; therefore, the interlocutory appeal procedure set forth in subsection (b) of O.C.G.A. § 5-6-34 is mandated. Rogers v. Department of Human Resources, 195 Ga. App. 118, 392 S.E.2d 713 (1990); Hayes v. State, 207 Ga. App. 520, 428 S.E.2d 425 (1993).
Orders denying state's motions to allow similar transaction evidence and for reconsideration not directly appealable.
- Supreme court could not review the trial court's denial of the state's motion to allow similar transaction evidence and its motion for reconsideration because neither of these rulings was directly appealable; when the state appeals from one or more orders listed in O.C.G.A. § 5-7-1(a), O.C.G.A. § 5-6-34(d) does not authorize appellate review of any other ruling in the case because § 5-6-34(d) was not intended to apply to appeals pursuant to § 5-7-1 et seq. since the General Assembly deliberately omitted from § 5-6-34(d) appeals taken or authorized under § 5-7-1. State v. Lynch, 286 Ga. 98, 686 S.E.2d 244 (2009).
Order denying motion for reconsideration is interlocutory order that, just as any other interlocutory order, can be the subject of an application for interlocutory appeal if a certificate of immediate review is obtained from the trial court. Mayor of City of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 441 S.E.2d 63 (1994).
Orders on the basis of qualified immunity.
- Except in clear cases, trial courts should issue a certificate of immediate review under subsection (b) of O.C.G.A. § 5-6-34for interlocutory orders denying dismissal or judgment on the basis of qualified immunity. Turner v. Giles, 264 Ga. 812, 450 S.E.2d 421 (1994), cert. denied, 514 U.S. 1108, 115 S. Ct. 1959, 131 L. Ed. 2d 851 (1995).
Application to appeal required.
- Defendant's direct appeal from a trial court's grant of partial summary judgment in favor of the plaintiff was dismissed for lack of jurisdiction because an application to appeal under O.C.G.A. § 5-6-35(a) was required but not submitted. Bullock v. Sand, 260 Ga. App. 874, 581 S.E.2d 333 (2003).
Order granting a criminal defendant a new trial.
- Upon an appeal by the state from an order granting the defendant a new trial, because the state failed to obtain a certificate of immediate review pursuant to O.C.G.A. § 5-7-2, the state's attempted appeal was nugatory and did not activate the appellate jurisdiction of the Supreme Court of Georgia. Accordingly, that appeal was dismissed. State v. Ware, 282 Ga. 676, 653 S.E.2d 21 (2007).
2. Motions to Dismiss
Judgments overruling motions to dismiss and motions for judgment on pleadings are not final or appealable judgments without certificate for immediate review, and such certificate must be obtained within ten-day period from entry of judgment or judgments sought to be appealed. Turner v. Harper, 231 Ga. 175, 200 S.E.2d 748 (1973).
Motion to dismiss accusation was not a final judgment from which appeal could be taken, absent a certificate of immediate review.
- When the defendant was charged with abandoning the defendant's two minor children and filed a motion to dismiss the accusation, asserting general grounds, the trial court properly denied the motion to dismiss, because the defendant did not comply with the interlocutory appeal procedure prescribed by subsection (b) of O.C.G.A. § 5-6-34; the overruling of the defendant's motion to dismiss the accusation, leaving the case pending for trial, was not a final judgment from which an appeal could be taken, absent a certificate of immediate review. Boyd v. State, 191 Ga. App. 435, 383 S.E.2d 906 (1989).
Overruling of motion to dismiss for failure to state claim leaves action pending in trial court for further proceedings and, therefore, is not appealable. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974).
In absence of certificate for immediate review, an appeal, from orders of trial court overruling defendant's motion to dismiss for failure to state a claim and motion to dismiss complaint on pleadings, is premature and must be dismissed. Osborne v. Welch, 119 Ga. App. 853, 168 S.E.2d 897 (1969).
Denial of motion to dismiss as final appealable order.
- In a declaratory judgment action, when the trial court entered an order denying a motion to dismiss the actions in effect granting partial summary judgment, a direct appeal could be taken from what appeared to be a final order addressing the issues raised in the petition for declaratory judgment. Spivey v. Safeway Ins. Co., 210 Ga. App. 775, 437 S.E.2d 641 (1993).
Order denying motion to dismiss for lack of jurisdiction is an interlocutory order, which is not appealable without certificate of immediate review. Davis v. Davis, 242 Ga. 322, 249 S.E.2d 90 (1978).
Denial of motion to dismiss when case still pending.
- Interlocutory appeal procedures must be followed to appeal from the denial of a motion to dismiss when the case is still pending below. Pace Constr. Corp. v. Northpark Assocs., 215 Ga. App. 438, 450 S.E.2d 828 (1994).
Motion to dismiss based on speedy trial violation.
- Trial court properly denied the defendant's motion to dismiss the indictment because the defendant failed to follow the interlocutory appeal procedures of O.C.G.A. § 5-6-34(b), the defendant waited over five years to assert the defendant's right to a speedy trial, and failed to show that the defendant had been prejudiced by the delay. Sosniak v. State, 292 Ga. 35, 734 S.E.2d 362 (2012).
Denial of motion to dismiss appointment of auditor.
- Subsection (a) of this section makes no provision for appealing denial of motion to dismiss appointment of auditor. Roberts v. Roberts, 228 Ga. 293, 185 S.E.2d 376 (1971).
Judgment denying motion to reconsider order overruling motions to dismiss.
- Judgment denying the defendant's motion to reconsider a previous order of court overruling the defendant's demurrers (now motions to dismiss) to the plaintiff's petition is not an appealable judgment. LeCraw v. L.P.D., Inc., 114 Ga. App. 281, 150 S.E.2d 927 (1966).
Dismissal based on a motion not supported by evidence is not final and directly appealable unless, as a result, the case is no longer pending in the court below. McGregor v. Stachel, 200 Ga. App. 324, 408 S.E.2d 118 (1991).
Order sustaining motion to dismiss plea of nudum pactum.
- Order sustaining general demurrer (now motion to dismiss) to defendant's plea of nudum pactum is not a final judgment and is therefore not appealable. Parish v. Georgia R.R. Bank & Trust Co., 115 Ga. App. 540, 154 S.E.2d 750 (1967).
Order granting motion to dismiss prayer of petition.
- When demurrer (now motion to dismiss) to one of the prayers of petition is sustained and prayer is ordered deleted from the petition and the petition redrawn, such order is not a final judgment or such other ruling, judgment, or order as will support an appeal. Strickland v. English, 114 Ga. App. 731, 152 S.E.2d 705 (1966).
Judgment sustaining motion to dismiss and allowing time to amend.
- While judgment sustaining general demurrer (now motion to dismiss) operates as a dismissal in absence of provision allowing time in which to amend, such dismissal, when time to amend is allowed, does not become effective until time for amendment has elapsed, and appeal prior thereto is premature. Black v. Miller, 113 Ga. App. 10, 147 S.E.2d 57, later appeal, 114 Ga. App. 208, 150 S.E.2d 466 (1966).
Orders dismissing defendant's third-party complaint and denying motion to add third-party defendant as party defendant are neither final nor appealable without certificate for immediate review. Von Waldner v. Baldwin/Cheshire, Inc., 133 Ga. App. 23, 209 S.E.2d 715 (1974).
Order granting dismissal when counterclaim remained pending.
- Because an order dismissing a complaint, which left a counterclaim pending before the trial court, was not subject to the exception to the final judgment rule for grants of partial summary judgment, and the plaintiffs failed to follow the procedures for obtaining a certificate of immediate review under O.C.G.A. § 5-6-34(b), the plaintiffs' appeal from the dismissal had to be dismissed as well. First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008).
Appealability of dismissal as to some defendants.
- When several defendants are sued jointly on joint cause of action, and there is a final dismissal as to some of the defendants, judgment of dismissal cannot be reviewed until final termination of the action; but when several defendants are sued jointly, but not on a joint cause of action, judgment of dismissal is such a final judgment as can be reviewed immediately. Sanders v. Culpepper, 226 Ga. 598, 176 S.E.2d 83 (1970).
Appeal from order dismissing or striking party to joint action will lie, without obtaining a certificate of appealability from trial judge, when cause of action is either several or joint and several. Robinson v. Bomar, 122 Ga. App. 564, 177 S.E.2d 815 (1970), overruled on other grounds, Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976).
Appeal from order dismissing claim is premature when counterclaim is pending in court below. Cleveland v. Watkins, 159 Ga. App. 885, 285 S.E.2d 546 (1981).
Dismissal of uninsured motorist coverage carrier.
- Order dismissing an action against a driver's uninsured motorist insurance carrier for failure to serve the carrier within the two-year statute of limitations was not directly appealable, when the claim against the alleged tortfeasor remained pending and the trial court had not certified the order as final. Carlisle v. Travelers Ins. Co., 195 Ga. App. 21, 392 S.E.2d 344 (1990).
Alleged violation of Interstate Agreement on Detainers not successfully appealed.
- When the defendant alleged that the defendant's temporary removal from federal custody for arraignment on state charges, after which the defendant was returned to federal custody, violated Article IV(e) of the Interstate Agreement on Detainers, O.C.G.A. § 42-6-20, and sought dismissal of the state charges, a direct appeal of the trial court's denial of the defendant's motion was not authorized as a certificate of immediate review and a petition for interlocutory appeal were required, under O.C.G.A. § 5-6-34(b), and neither were present, and the defendant was not appealing an alleged violation of the constitutional right to a speedy trial, under O.C.G.A. § 17-7-170. Thomas v. State, 276 Ga. 853, 583 S.E.2d 848 (2003).
Partial grant of executor's motion to dismiss a caveat.
- Executor's appeal was dismissed because the executor's motion to dismiss a caveat by the decedent's widow was not fully sustained and O.C.G.A. § 5-6-34(a)(9) did not allow direct appeals from judgments or orders that partially sustained a motion to dismiss a caveat. The executor was required to have sought review of the order by following the procedures set forth in § 5-6-34(b), but did not follow those procedures. Mays v. Rancine-Kinchen, 291 Ga. 283, 729 S.E.2d 321 (2012).
Defendants must follow the interlocutory appeal procedures of O.C.G.A. § 5-6-34(b) when pursuing appellate review in speedy trial violation cases. Sosniak v. State, 292 Ga. 35, 734 S.E.2d 362 (2012).
3. Motions Regarding Default Judgments
Denial of plaintiff's motion for default judgment was not a final adjudication but an interlocutory ruling which was not directly appealable. Ware v. Handy Storage, 222 Ga. App. 339, 474 S.E.2d 240 (1996).
Because a trial court declined to issue a certificate of immediate review to a former inmate in the inmate's request to appeal the trial court's grant of county defendants' motion to open a default, pursuant to O.C.G.A. § 5-6-34(b), that issue remained pending below and, accordingly, the appellate court had no jurisdiction to review that matter under O.C.G.A. § 9-11-54. Camp v. Coweta County, 271 Ga. App. 349, 609 S.E.2d 695 (2005), vacated in part, 280 Ga. App. 852, 635 S.E.2d 234 (2006).
Order allowing motion to open default.
- Appeal from order allowing a motion to open default when no certificate of review under subsection (b) of this section is filed is premature and must be dismissed. North Ga. Hous., Inc. v. Pressley, 123 Ga. App. 273, 180 S.E.2d 607 (1971).
When default judgment is vacated and set aside, jurisdiction remains in trial court and judgment is neither final within meaning of subsection (a), nor directly appealable. Absent a certificate of immediate review, as provided by subsection (b), an appeal is premature and must be dismissed. Notrica v. Southern Bell Tel. & Tel. Co., 147 Ga. App. 737, 250 S.E.2d 196 (1978).
Order vacating and setting aside default judgment which has effect of continuing pendency of case in trial court, judgment was not final. First Nat'l Bank v. Hudson, 139 Ga. App. 629, 229 S.E.2d 109 (1976).
Appeal from grant of motion to set aside judgment and open default, leaving case pending below is premature and should be dismissed if there is no certificate for immediate review from the trial judge nor petition to the appellate court for allowance of an appeal. Thigpen v. Futura Constr., Inc., 140 Ga. App. 65, 230 S.E.2d 92 (1976).
Order vacating and setting aside default judgment and allowing defendant to file defensive pleadings leaves case still pending in court below, and in absence of certificate of immediate review appeal is premature and subject to being dismissed. Lee v. Smith, 119 Ga. App. 808, 168 S.E.2d 880 (1969).
Judgment granting motion to set aside default judgment entered against garnishee is not a final judgment. Davis v. Davis, 139 Ga. App. 599, 229 S.E.2d 81 (1976).
Default opened as of right by filing defenses within 15 days is not final.
- Default which is opened as a matter of right by filing of defenses within 15 days of day of default upon payment of costs is not a final judgment and case is still pending in trial court if no certificate for immediate review is signed or entered within ten days of order complained of. Shuford v. Jackson, 139 Ga. App. 469, 228 S.E.2d 605 (1976).
4. Rulings Concerning Counterclaims and Cross Actions
Dismissal of counterclaim is not a final order. Lowe v. Payne, 130 Ga. App. 337, 203 S.E.2d 309 (1973).
Dismissal of counterclaim is not such judgment as leaves cause no longer pending in trial court. Absent certificate of immediate review, appeal is premature. Register v. Kandlbinder, 132 Ga. App. 435, 208 S.E.2d 565 (1974).
Order dismissing an insured's counterclaim for personal injury protection benefits was neither a final judgment nor otherwise directly appealable, when the dismissal was not intended to constitute a ruling on the merits of the counterclaim, although the ruling was characterized as a dismissal for failure to state a claim. Denney v. Shield Ins. Co., 183 Ga. App. 280, 358 S.E.2d 628, cert. denied, 183 Ga. App. 905, 358 S.E.2d 628 (1987).
Dismissal of counterclaim while case remains pending.
- As appeal from order dismissing counterclaim is not a final judgment because case remains pending in trial court, such appeal is premature and must be dismissed in absence of requisite immediate review certificate. Kilgore v. Kennesaw Fin. Co., 128 Ga. App. 120, 195 S.E.2d 799 (1973).
Ruling sustaining motion to dismiss various counts of counterclaim is not final. Huff v. Rogers, 129 Ga. App. 897, 202 S.E.2d 243 (1973).
Order while complaint and counterclaim still pending.
- Trial court's order cannot be considered a final judgment while the complaint and counterclaim are still pending. Cotton v. Broad River Realty, Inc., 216 Ga. App. 306, 454 S.E.2d 183 (1995).
Judgment rendered while defendant's counterclaim remains pending.
- Judgment is not final if case is still pending in lower court in form of defendant's counterclaim. Conte Enterprises, Inc. v. Romax Constr. Co., 128 Ga. App. 121, 195 S.E.2d 798 (1973).
Pendency of counterclaim plus absence of determination by the trial judge that there is no just reason for delay and express direction for entry of judgment under O.C.G.A. § 9-11-54 prevents order from being final and appealable. This, coupled with failure to follow the applicable procedure for review under O.C.G.A. § 5-6-34, subjects the appeal to dismissal. Cleveland v. Watkins, 159 Ga. App. 885, 285 S.E.2d 546 (1981).
When the defendant's counterclaim is still pending in the trial court, an order of that court dismissing the main complaint against such defendant is not appealable, absent proper certification from the trial judge, accompanied by an application for immediate review. Wrip, Inc. v. Sledger, 162 Ga. App. 727, 292 S.E.2d 871 (1982).
Order dismissing claim while counterclaim or cross action remains pending.
- When there was no express determination that there was no just reason for delay nor an express direction for entry of judgment under Ga. L. 1966, p. 609, § 54 (see O.C.G.A. § 9-11-54(b)), nor was there a certificate for immediate review under subsection (b) of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34), appeal from anorder dismissing the plaintiff's claim was premature when there was a counterclaim pending in the court below. Campbell v. George, 129 Ga. App. 644, 200 S.E.2d 503 (1973).
When answer of the defendant contains prayer for affirmative legal relief germane to the plaintiff's suit, dismissal of the plaintiff's suit on general demurrer (now motion to dismiss) does not carry with it defendant's cross action (now counterclaim), so cross action is still pending and there is no final judgment within the contemplation of the Appellate Practice Act. Brown v. Elliott, 115 Ga. App. 89, 153 S.E.2d 665 (1967).
When the plaintiff's suit is dismissed, but defendant's cross action (now counterclaim) seeking a money judgment against the plaintiff is still pending, the appeal by the plaintiff must be dismissed. O'Kelley v. Evans, 223 Ga. 512, 156 S.E.2d 450 (1967).
When the defendant's counterclaims against the plaintiff are still pending in the trial court, a judgment dismissing the plaintiff's complaint is not such a final judgment as may be directly appealed. Farmers Coop. Ins. Co. v. Hicks, 227 Ga. 755, 182 S.E.2d 895 (1971).
Cash distribution order while counterclaims remained pending.
- In action to dissolve partnership, because the final dissolution remained pending, the defendant partner's counterclaim for fees and litigation expenses remained pending, and there was no express determination of finality; therefore, the plaintiff was required to follow the procedures of O.C.G.A. § 5-6-34 in order to appeal the trial court's order directing certain cash payments and distributions based on the court's custodial evaluation of the firm's assets. Eckland v. Hale & Eckland, 231 Ga. App. 278, 498 S.E.2d 358 (1998).
Order of court overruling plaintiff's oral motion to dismiss defendant's cross action (now counterclaim) is not a final judgment. Birdwell v. Pippen, 113 Ga. App. 202, 147 S.E.2d 673 (1966).
Order striking answer and cross action (now counterclaim) of defendants and refusing to open default.
- In action seeking property damages resulting from automobile collision, order striking answer and cross action of the defendants and refusing to open default is not an order which can be directly appealed from under this section without certification of trial judge. Melton v. Grider, 119 Ga. App. 376, 166 S.E.2d 915 (1969).
Order striking answer and cross action (now counterclaim) as barred by statute of limitations leaves case pending.
- Order of trial judge sustaining the plaintiff's oral motion to strike an amended answer and cross action as barred by the statute of limitations, leaves case pending in court below and is not a final judgment from which an appeal will lie. Hood v. Akins, 114 Ga. App. 733, 152 S.E.2d 704 (1966).
Striking of counterclaim after consideration of proposed pretrial orders of plaintiff and defendant, pleadings, evidence and arguments of counsel is tantamount to grant of summary judgment motion and appealable without certificate of immediate review even though interlocutory. Aiken v. Citizens & S. Bank, 249 Ga. 481, 291 S.E.2d 717, cert. denied, 459 U.S. 973, 103 S. Ct. 307, 74 L. Ed. 2d 287 (1982).
Summary Judgments
1. Grants
Grant of summary judgment is an exception to rule requiring final judgment in order to appeal. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969).
Dismissal of caveat to probate of will.
- When, on appeal by caveators from summary judgment in favor of the proponents of a will, the decision was affirmed and, after remittitur, the superior court entered an order admitting the will to probate, final disposition of the action for the purposes of the time to request attorney fees under O.C.G.A. § 9-15-14 occurred when that order was entered, not when the summary judgment motion was granted. McConnell v. Moore, 232 Ga. App. 700, 503 S.E.2d 593 (1998).
Dismissal for late filing.
- Motion to dismiss an appeal on grounds that the appealing party failed to timely appeal an order granting summary judgment pursuant to O.C.G.A. § 5-6-38(a) was granted; moreover, the appeal was not taken from the final judgment entered in the case. Patterson v. Bristol Timber Co., 286 Ga. App. 423, 649 S.E.2d 795 (2007).
One may appeal grant of summary judgment on any issue or as to any party. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969).
Grant of codefendant's motion.
- Only if codefendants are sued as joint tortfeasors does the grant of summary judgment as to one potentially affect the other's rights of contribution. Therefore, it is only in this situation that the codefendant would be deemed a losing party and have standing to appeal the grant of summary judgment to another codefendant. C.W. Matthews Contracting Co. v. Studard, 201 Ga. App. 741, 412 S.E.2d 539 (1991).
Party may appeal grant of summary judgment after rendition of final judgment in case, and summary judgment is not res judicata as to any other claims which remained pending. Ramseur v. American Mgt. Ass'n, 155 Ga. App. 340, 270 S.E.2d 880 (1980).
Motion to dismiss an appeal from an order granting partial summary judgment to some of the claims was not untimely filed, as the appealing party had the option to wait until a final judgment was entered in order to file an appeal, and they exercised that option; hence, the opposing party's motion to dismiss the appeal as untimely filed was denied. Perrett v. Sumner, 286 Ga. App. 379, 649 S.E.2d 545 (2007).
Effect of granting appellee's motion on appellant's motion for same.
- Grant of appellee's motion for summary judgment disposed of entire case in court below, and had effect of making appellant's denial of summary judgment a final judgment, directly appealable. Stallings v. Chance, 239 Ga. 567, 238 S.E.2d 327 (1977).
In action when cross motions for summary judgments are made, grant of one party's motion disposes of entire case in trial court, and no issue is left pending for decision. This has effect of making opposing party's denial of summary judgment a final judgment and directly appealable under subsection (a). Baker v. NEI Corp., 144 Ga. App. 165, 241 S.E.2d 4 (1977).
Grant of motion for summary judgment in the Civil Court of Bibb County can be appealed directly to the Court of Appeals. Middle Ga. Bank v. Continental Real Estate & Assocs., 168 Ga. App. 611, 309 S.E.2d 893 (1983).
Failure to appeal earlier summary judgment precludes review.
- Condominium unit owner's appeal from a grant of partial summary judgment in favor of an HOA was directly appealable under O.C.G.A. § 9-11-56(h), and the court could then consider an earlier ruling on motions to dismiss; however, the court could not consider an earlier grant of partial summary judgment that was directly appealable but was not appealed. O.C.G.A. § 5-6-34(d) did not provide jurisdiction because that statute applied only to appeals taken under § 5-6-34(a), (b), and (c). Headrick v. Stonepark of Dunwoody Unit Owners Ass'n, 331 Ga. App. 772, 771 S.E.2d 382 (2015).
2. Denials
Overruling of motion for summary judgment may be reviewed only upon direct appeal from that judgment. Hood v. General Shoe Corp., 119 Ga. App. 649, 168 S.E.2d 326 (1969).
Appealability of denial of summary judgment.
- Party against whom summary judgment is granted may appeal either after grant of summary judgment or after rendition of final judgment. Surgent v. Surgent, 153 Ga. App. 100, 264 S.E.2d 568 (1980).
Although exclusion of evidence resulted in reversible error and a remand for a new trial in a matter involving a challenge to a promotional examination as the denial of summary judgment on an issue was enumerated as error, the issue was addressed on appeal. City of Atlanta v. Bennett, 322 Ga. App. 726, 746 S.E.2d 198 (2013).
Direct appeal is not available from the denial of a motion for summary judgment. Rolleston v. Cherry, 237 Ga. App. 733, 521 S.E.2d 1, cert. denied, 528 U.S. 1046, 120 S. Ct. 580, 145 L. Ed. 2d 482 (1999).
Denial of summary judgment not rendered moot by entry of judgment.
- In an action against an insurer to recover damages under a policy issued to a county board of education on behalf of a child injured by a backfiring school bus, the insurer's appeal from the denial of the insurer's motion for summary judgment was not rendered moot by the subsequent entry of a verdict and a judgment in favor of the child in a trial limited to damages; the denial of the motion could be reviewed as part of the insurer's direct appeal from the final judgment because the trial court's determination in denying the motion that the policy's medical payments provision did not satisfy O.C.G.A. § 20-2-1090 and that the policy's liability provision provided the requisite coverage was not considered at trial. Coregis Ins. Co. v. Nelson, 282 Ga. App. 488, 639 S.E.2d 365 (2006).
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 appellees. Sewell v. Cancel, 295 Ga. 235, 759 S.E.2d 485 (2014).
Compliance with requirements of section.
- Denial of motion for summary judgment not reviewable by direct appeal except as provided in section. Carroll v. Campbell, 226 Ga. 700, 177 S.E.2d 83 (1970); Belt v. Allstate Ins. Co., 140 Ga. App. 740, 231 S.E.2d 831 (1976); Johnston-Willis Hosp. v. Cain, 142 Ga. App. 305, 236 S.E.2d 374 (1977); Garrett v. Heisler, 149 Ga. App. 240, 253 S.E.2d 863 (1979).
There is no provision for review of denial of summary judgment except by direct appeal with certificate of trial judge and application for review to appropriate appellate court as provided by this section. Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840, 229 S.E.2d 753 (1976); American Mut. Fire Ins. Co. v. Llewellyn, 142 Ga. App. 824, 237 S.E.2d 227 (1977).
Denial of motion for summary judgment is not reviewable by appellate courts in absence of timely certificate of immediate review or granting of interlocutory appeal by appellate court unless there is a final judgment in the case and the cause is no longer pending in the lower court. Barlow v. Yenkosky, 146 Ga. App. 872, 247 S.E.2d 519 (1978); Weldon v. Southeastern Fid. Ins. Co., 157 Ga. App. 698, 278 S.E.2d 500 (1981); Sharpe's Appliance Store, Inc. v. Anderson, 161 Ga. App. 112, 289 S.E.2d 312 (1982).
Ordinarily, a denial of a motion for partial summary judgment would be appealable only if an application for interlocutory review were granted after the trial court certified the matter for immediate review. E.H. Crump Co. v. Miller, 200 Ga. App. 598, 409 S.E.2d 235, cert. denied, 200 Ga. App. 896, 409 S.E.2d 235 (1991).
When order denying the appellants' motion for summary judgment is certified by the trial court, but no application is made in accordance with subsection (b), an appeal must be dismissed. Century Bldrs., Inc. v. Carter, 243 Ga. 14, 252 S.E.2d 507 (1979).
Denial of a motion for summary judgment must be appealed in accordance with the interlocutory appeal provisions of subsection (b) of O.C.G.A. § 5-6-34. Pace Constr. Corp. v. Northpark Assocs., 215 Ga. App. 438, 450 S.E.2d 828 (1994).
Because the Court of Appeals of Georgia granted an application for interlocutory appeal to the Department of Transportation in a slip and fall case, a city's cross-appeal was properly before the court. Ga. DOT v. Strickland, 279 Ga. App. 753, 632 S.E.2d 416 (2006).
Although the repair company did not obtain a certificate of immediate review from the trial court's order denying a renewed motion for summary judgment under O.C.G.A. § 9-11-56, the appellate court had jurisdiction to address an order denying the renewed motion for summary judgment under O.C.G.A. § 5-6-34(d); the appellate court had jurisdiction to address the trial court's order denying the company's motion for reconsideration under § 5-6-34(b), since the company had obtained a timely certificate of immediate review from the trial court's order denying the court's motion for reconsideration. Gulfstream Aero. Servs. Corp. v. United States Aviation Underwriters, Inc., 280 Ga. App. 747, 635 S.E.2d 38 (2006).
Order dismissing an unauthorized appeal of an interlocutory order denying the defendant's motion for summary judgment was not appealable absent compliance with interlocutory appeal procedures. Rolleston v. Cherry, 233 Ga. App. 295, 504 S.E.2d 504 (1998).
As the losing party on cross-motions for summary judgment, defendant was entitled to proceed under subsection (b) of O.C.G.A. § 5-6-34 to seek an interlocutory appeal from the denial of its motion or, in the alternative, to file a direct appeal from the grant of plaintiff's motion pursuant to O.C.G.A. § 9-11-56(h); when the defendant elected to invoke the interlocutory appeal procedure, the mere availability of the alternative of the direct appeal procedure would not be a factor in determining whether to grant an interlocutory appeal. Southeastern Sec. Ins. Co. v. Empire Banking Co., 268 Ga. 450, 490 S.E.2d 372 (1997).
Subsection (b) does not provide exclusive means of appealing denial.
- When summary judgment is denied, it may be appealed after certification by trial judge and granting of application by appropriate appellate court; but this is not the exclusive means of appealing denial of motion for summary judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).
Appealing denial of summary judgment when there is final judgment.
- Law now permits review of denial of summary judgment without necessity of making application for interlocutory appeal when there is a final judgment - such as the grant of a motion for summary judgment. Mahler v. Paquin, 143 Ga. App. 773, 240 S.E.2d 185 (1977).
Denial of a motion for summary judgment can be appealed without application when it is tied to appeal of an appealable order or judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).
Denial of summary judgment may be tied to appeal from grant of summary judgment by opposite party. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).
When direct appeal is taken from grant of summary judgment, appellee may cross-appeal the denial of the appellee's motion for summary judgment. Hall v. Richardson Homes, Inc., 168 Ga. App. 593, 309 S.E.2d 825 (1983).
Premature appeal.
- When the defendant obtained a certificate for immediate review from the trial judge within ten days of the denial of the defendant's motion for summary judgment in accordance with O.C.G.A. § 5-6-34, but failed to apply to and obtain an order from the Court of Appeals granting an appeal, the defendant's appeal is premature. Hargraves v. Turner, 160 Ga. App. 807, 287 S.E.2d 664 (1982).
Denial of the state's motion for summary judgment or dismissal based on sovereign immunity was not a final judgment subject to direct appeal under the collateral order doctrine. State v. Gober, 229 Ga. App. 700, 494 S.E.2d 724 (1998).
Appellant was not entitled to a direct appeal from a collateral order; the collateral order doctrine had no application and appellant was required to comply with the interlocutory appeal procedures, including obtaining a certificate of immediate review from the trial court, to appeal. Drain v. Lee, 350 Ga. App. 327, 825 S.E.2d 927 (2019).
Judgments on Motions for New Trial
1. Grants
Not appealable without certificate of review.
- When judgment appealed from is one granting motion for new trial, and there is no certificate of trial judge as required by section, appeal must be dismissed. Stewart v. Church, 119 Ga. App. 58, 166 S.E.2d 436 (1969).
Judgment granting new trial is not a final judgment, and because it is not a final judgment, an interlocutory appeal cannot be prosecuted unless the trial judge grants a certificate for immediate review. Henderson v. Henderson, 231 Ga. 208, 200 S.E.2d 867 (1973).
When no certificate of immediate review was obtained from the trial court nor application made to the Court of Appeals for interlocutory review, an appeal from grant of the extraordinary motion for new trial on special grounds was premature. Moore v. Williams, 163 Ga. App. 595, 295 S.E.2d 866 (1982).
Grant of a motion for new trial is not a final order from which a direct appeal may be taken, and if the appellant did not comply with the interlocutory appeal provisions of subsection (b), the appeal must be dismissed for lack of jurisdiction. Murray v. Rozier, 186 Ga. App. 184, 367 S.E.2d 886 (1988).
Grant of a motion for new trial is not a final judgment within the meaning of paragraph (a)(1) of O.C.G.A. § 5-6-34; therefore, an application for interlocutory review is required to be filed in order to give the Court of Appeals jurisdiction to entertain an appeal. Rockdale Awning & Iron Co. v. Kerbow, 210 Ga. App. 119, 435 S.E.2d 619 (1993).
Denial of interlocutory appeal does not prevent eventual review.
- Denial of interlocutory appeal by statute does not prevent a litigant from eventually seeking review in an appellate court of a judgment granting a new trial; this is so because upon conclusion of the case in the trial court and entry of final judgment, an appeal can then be taken from the final judgment, and in such appeal legality of judgment granting new trial can be attached. Henderson v. Henderson, 231 Ga. 208, 200 S.E.2d 867 (1973).
State could not appeal order granting new trial.
- State's appeal of an order granting the defendant's motion for new trial was dismissed because the state could not appeal the order granting the new trial under the Appellate Practice Act, O.C.G.A. § 5-6-34(d); no appeal was taken here under subsections (a), (b), or (c) of § 5-6-34. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012).
Extraordinary motion for new trial inappropriately granted.
- Sentencing order on a criminal attempt count was vacated because the trial court was without authority to enter a February 2018 sentence since the Georgia Supreme Court had already determined that the appellant was not convicted of felony murder or criminal attempt, which was the law of the case, and prevented the trial court from revisiting the issue and the court inappropriately granted a new trial. Hollmon v. State, 305 Ga. 90, 823 S.E.2d 771 (2019).
2. Denials
Judgment overruling motion for new trial is an appealable judgment. Thornton v. State Hwy. Dep't, 113 Ga. App. 351, 148 S.E.2d 66 (1966).
Judgment overruling motion for new trial based on appealable judgment is appealable.
- Using liberal construction as required by O.C.G.A. § 5-6-30, it would be incongruous to declare unappealable a judgment overruling 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).
Judgment overruling motion for new trial is a final judgment since no subsequent judgment disposing of case is necessary. 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).
Denied motion final although rendered before judgment entered on verdict.
- Order denying motion for new trial from general verdict is final and appealable, even though no judgment has been entered on verdict. This is so even though under federal practice an order granting or overruling motion for new trial is not a final judgment from which an appeal may be taken. 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).
Order denying motion appealable although opposing party's motion for same remains pending.
- Fact that one party's motion for new trial is still pending below does not deprive other party of right to independently press the party's motion to a proper conclusion and test the conclusion by appeal. 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).
Effect of suggested forms in § 5-6-51. - Forms contained in Ga. L. 1965, p. 18, § 20 (see O.C.G.A. § 5-6-51) are merely suggested forms which are apparently intended for use in appeals from orders or judgments other than rulings on motions for new trial and do not, of themselves, make such rulings unappealable. The suggested forms of appeal are not exclusive. Their purpose is to have appeal show on its face the tolling of time for appeal when appeal is from original 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).
Injunctions and Restraining Orders
Interlocutory order.
- Subsection (b) of O.C.G.A. § 5-6-34 changed the method by which an interlocutory order was appealed, providing not only for a certificate by the trial court but for application to and approval by the proper appellate court. State v. Blosfield, 165 Ga. App. 111, 299 S.E.2d 588 (1983).
Because a trial court denied a property owner's request for interlocutory injunctive relief against a county tax commissioner, that order was directly appealable pursuant to O.C.G.A. § 5-6-34(a)(4); accordingly, the commissioner's motion to dismiss the appeal was denied. E-Lane Pine Hills, LLC v. Ferdinand, 277 Ga. App. 566, 627 S.E.2d 44 (2005).
On an appeal filed pursuant to O.C.G.A. § 5-6-34(a)(4) from an order enjoining a city from imposing a tax against a utility pursuant to an ordinance, the appeals court found that the interlocutory injunction was erroneously ordered, given that the ordinance had not yet posed any imminent danger to that utility's financial interest, but, only a demand for the tax had been issued. City of Willacoochee v. Satilla Rural Elec. Mbrshp. Corp., 283 Ga. 137, 657 S.E.2d 232 (2008).
Nature of order.
- Nature of the order containing the underlying contested issues of law will govern the appellate path in the Court of Appeals under subsection (b) of O.C.G.A. § 5-6-34. Saxton v. Coastal Dialysis & Medical Clinic, Inc., 220 Ga. App. 805, 470 S.E.2d 252 (1996), aff'd, 267 Ga. 177, 476 S.E.2d 587 (1996).
Temporary injunction is appealable in absence of a certificate of immediate review. Springtime, Inc. v. Douglas County, 228 Ga. 753, 187 S.E.2d 874 (1972).
Grant of a temporary injunction is appealable. Pizza Hut of Am., Inc. v. Kesler, 254 Ga. 360, 329 S.E.2d 133 (1985).
Georgia Supreme Court dismissed the appeal for lack of appellate jurisdiction because an order modifying an interlocutory injunction was not subject to direct appeal under O.C.G.A. § 5-6-34(a)(4) and the appellants did not obtain a certificate of immediate review from the trial court. Jones v. Peach Trader Inc., 302 Ga. 504, 807 S.E.2d 840 (2017).
Order modifying interlocutory injunction is not subject to direct appeal. Jones v. Peach Trader Inc., 302 Ga. 504, 807 S.E.2d 840 (2017).
Jurisdiction over direct appeal of case involving injunctive relief not otherwise an "equity" case.
- When a case involved the grant or denial of an injunction as an ancillary matter, the Supreme Court's transfer of an interlocutory appeal application to the Court of Appeals was a binding determination that the case was not an "equity" case in the Supreme Court's general jurisdiction and the Court of Appeals had jurisdiction over direct appeal of the case; overruling Auto Cash. Inc. v. Hunt, 216 Ga. App. 239, 454 S.E.2d 162 (1995). Saxton v. Coastal Dialysis & Medical Clinic, Inc., 267 Ga. 177, 476 S.E.2d 587 (1996).
Jurisdiction for appeal was proper.
- Georgia Supreme Court found that O.C.G.A. § 5-6-34(a)(4) provided that appeals could be taken from all judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions. As such, the trial court's injunctive order fell into the category of direct appeals allowed pursuant to § 5-6-34(a)(4) and the case was properly before the court. State v. Singh, 291 Ga. 525, 731 S.E.2d 649 (2012).
Because, in addition to appointing a receiver/special master, a trial court issued an immediate, preliminary and permanent injunction against two partners from taking certain business actions, O.C.G.A. § 5-6-34(a)(4) allowed a direct appeal of the order. Petrakopoulos v. Vranas, 325 Ga. App. 332, 750 S.E.2d 779 (2013).
Because the trial court's order directed action which effectively gave the appellee all of the injunctive relief that the appellee sought, the nature of the trial court's order granted an injunction, which was directly appealable; thus, the appellate court was vested with jurisdiction to review the appellants' claims on appeal. MSM Poly, LLC v. Textile Rubber & Chem. Co., 353 Ga. App. 538, 839 S.E.2d 4 (2020).
Denial of motion to dismiss, accompanied by grant of permanent injunction.
- If judgment does no more than deny the motion to dismiss complaint, it, of course, is not an appealable judgment in absence of certificate of review, but when the judgment does not stop there but goes on to award permanent injunction to plaintiffs, granting to the plaintiffs all relief which plaintiffs seek in the plaintiffs' complaint, judgment is final and subject to direct appeal. City of Jesup v. Bennett, 226 Ga. 606, 176 S.E.2d 81 (1970).
Basis for appealability of permanent injunctions.- Although a permanent injunction is directly appealable, it is not so because it is a final order for appealability purposes, but because of a special statutory provision. Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981).
Continuance of restraining order is appealable as an exception to doctrine of finality of judgments. Spell v. Blalock, 243 Ga. 459, 254 S.E.2d 842 (1979).
Trial court did not abuse the court's discretion by dissolving a temporary restraining order and allowing a bank to proceed with the bank's foreclosure action as it was within the trial court's discretion to condition the extension of injunctive relief upon the mortgagor's placement of an amount of money in escrow reflecting past-due payments on the mortgage, which the mortgagor declined to do. Morgan v. U.S. Bank Nat'l Ass'n, 322 Ga. App. 357, 745 S.E.2d 290 (2013).
Judgment regarding dissolution of temporary restraining order must be on merits.
- Issue of dissolution of temporary restraining order must have been heard and determined on its merits before judgment dissolving or refusing to dissolve it is subject to interlocutory appeal. Clements v. Kushinka, 233 Ga. 273, 210 S.E.2d 804 (1974).
Automatic dissolution of temporary restraining order is not an appealable judgment. Clements v. Kushinka, 233 Ga. 273, 210 S.E.2d 804 (1974).
Denial of ex parte temporary restraining order is not a final judgment or one appealable under this section. Williams v. Ware, 240 Ga. 601, 242 S.E.2d 108 (1978).
Trial court order indefinitely extending a temporary restraining order against a party is the equivalent of a judgment granting an interlocutory injunction and is directly appealable. Matrix Fin. Servs. v. Dean, 288 Ga. App. 666, 655 S.E.2d 290 (2007).
Effect of pending jury trial on damages.
- Denial of injunctive relief is immediately appealable under O.C.G.A. § 5-6-34, even though there is a jury trial pending on the question of damages. Earth Mgt., Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455 (1981).
Absent manifest abuse, trial court's discretion not interfered with.
- Discretion of the trial court in granting or denying interlocutory injunctive relief will not be interfered with in the absence of a showing of manifest abuse. Mark Smith Constr. Co. v. Fulton County, 248 Ga. 694, 285 S.E.2d 692 (1982).
Reversal required where court abused court's discretion by not balancing equities.
- Because an order granting the interlocutory injunction did not reflect that the trial court balanced the relative equities of the parties, which the party seeking the relief would have had to demonstrate entitlement to, the order had to be reversed, as the trial court abused the court's discretion. Bernocchi v. Forcucci, 279 Ga. 460, 614 S.E.2d 775 (2005).
Restraining order in divorce case.
- Since the "underlying subject matter" of the case was divorce, case involving order temporarily restraining husband from selling, transferring, or encumbering certain property was to be brought to the Supreme Court by application pursuant to O.C.G.A. § 5-6-35 rather than by direct appeal. Rolleston v. Rolleston, 249 Ga. 208, 289 S.E.2d 518 (1982).
Divorce decree also involving child custody.
- Right to a direct appeal in child custody cases in O.C.G.A. § 5-6-34(a)(11) did not apply to a divorce decree in which child custody was an issue, even though the only relief sought on appeal pertained to the custody decision; the underlying subject matter was still the divorce action. Therefore, a parent was required to follow the discretionary appeal procedure of O.C.G.A. § 5-6-35, and the parent's direct appeal was dismissed. Todd v. Todd, 287 Ga. 250, 696 S.E.2d 323 (2010).
Nonparty standing to appeal injunction in adoption.
- Although the Georgia Department of Human Services was not a party to the adoption action, it had standing to appeal the injunctive portion of the superior court's order because that court enjoined the Department from taking certain actions with respect to the minor children. Dep't of Human Servs. v. Wyttenbach, 348 Ga. App. 810, 824 S.E.2d 680 (2019).
Order denying motion for stay to conduct arbitration is not appealable except under interlocutory appeal provisions of O.C.G.A. § 5-6-34. Tasco Indus., Inc. v. Fibers & Fabrics, 162 Ga. App. 593, 292 S.E.2d 439 (1982).
There is no direct appeal from order denying motion to stay proceedings pending arbitration. Phillips Constr. Co. v. Cowart Iron Works, Inc., 162 Ga. App. 861, 293 S.E.2d 355 (1982), aff'd, 250 Ga. 488, 299 S.E.2d 538 (1983).
Stay pending arbitration.
- Because of the unnecessary delay and expenses to parties of an incorrect determination of whether judicial proceedings should be stayed pending arbitration, trial courts, except in clearest cases, should certify orders granting or denying such stays for immediate appeal. Phillips Constr. Co. v. Cowart Iron Works, Inc., 250 Ga. 488, 299 S.E.2d 538 (1983).
Grant or denial of a stay under the Soldiers' and Sailors' Civil Relief Act is a final judgment on the collateral matter of the stay and is directly appealable. Vlasz v. Schweikhardt, 178 Ga. App. 512, 343 S.E.2d 749 (1986).
Injunctive relief on inmate's execution unjustified.
- Trial court erred by granting injunctive relief to an inmate prohibiting the inmate's execution by unknown drugs or entities involved because the Georgia Supreme Court held that it was not unconstitutional for the State of Georgia to maintain the confidentiality of the names and other identifying information of the persons and entities involved in executions, pursuant to O.C.G.A. § 42-5-36(d), including those who manufacture the drug or drugs to be used. Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794 (2014).
Trial court lacked authority to issue injunction.
- Trial court lacked authority to grant a property owner's request for an injunction because the owner had no further recourse in the trial court and could not properly petition for injunctive relief two years after entry of a judgment awarding the owner damages in a trespass action; because the trespass action did not involve any other judgments or rulings deemed directly appealable under O.C.G.A. § 5-6-34(a), the exercise of jurisdiction by the Court of Appeals necessarily required a determination that the damages judgment was a final judgment within the meaning of that statute, that no issues remained to be resolved, and that the parties had no further recourse in the trial court, and those findings were binding in all subsequent proceedings in the trial court and in the appellate courts. Paine v. Nations, 301 Ga. App. 97, 686 S.E.2d 876 (2009).
Judgments of Contempt
Order adjudging one in contempt is a final judgment.
- Order adjudging one in contempt means trial court has passed upon merits of cases and the order, in effect, is a final disposition of the contempt matter by that court, whether it involves an interlocutory order or a final judgment. Ramsey v. Ramsey, 231 Ga. 334, 201 S.E.2d 429 (1973).
When individual is adjudged in contempt, trial court is done with the matter and to require an application for discharge, as a condition precedent to appeal, is usually a futile and empty gesture. Ramsey v. Ramsey, 231 Ga. 334, 201 S.E.2d 429 (1973).
Order finding one in contempt of court is a subject for direct appeal. In re Booker, 186 Ga. App. 614, 367 S.E.2d 850 (1988).
Direct appeals may be taken from contempt orders even if the contemnor is given the opportunity to purge the contempt before punishment is imposed. Hamilton Capital Group, Inc. v. Equifax Credit Info. Servs., 266 Ga. App. 1, 596 S.E.2d 656 (2004).
Appellate court had jurisdiction to consider the prior orders specified in the notice of appeal because O.C.G.A. § 5-6-34(a)(2) expressly authorized a direct appeal from an order of contempt. Allison v. Wilson, 320 Ga. App. 629, 740 S.E.2d 355 (2013).
Only pending issue to be resolved by the trial court was whether the defendant should be held in contempt for failing to comply with the directives of the default judgment; thus, once the trial court denied the plaintiff's motion for contempt, there were no further issues to resolve in the case, and the plaintiff had no further recourse in the court below so the trial court's order was final and subject to direct appeal. Valley v. S. Atl. Conf. of Seventh-day Adventist, 347 Ga. App. 131, 817 S.E.2d 704 (2018).
Pending motion when final judgment entered does not extend timing for appeal.
- Hospital's motion to dismiss an appeal was granted because the order granting summary judgment was a final judgment since the order concluded the case and the fact that the ancillary issue of the cost award under O.C.G.A. § 9-11-4(d) remained pending did not prevent the judgment from being final for purposes of O.C.G.A. §§ 5-6-34(a)(1) and5-6-38(a); thus, the appeal was untimely since the appeal was brought outside of the 30-day time frame from the trial court's entry of judgment. Edokpolor v. Grady Mem. Hosp. Corp., 338 Ga. App. 704, 791 S.E.2d 589 (2016).
Judgment rendered under court's own motion which authorizes holding persons named in contempt.
- Judgment rendered sua sponte by superior court which mandates actions and which, if valid, would authorize court to hold persons named in such judgment in contempt of court is an appealable judgment. Darden v. Ravan, 232 Ga. 756, 208 S.E.2d 846 (1974), overruled on other grounds Ricks v. State, 303 Ga. 567, 814 S.E.2d 318, 2018 Ga. LEXIS 288 (2018).
Dismissal of one of two counts of cause of action does not permit case to be carried to appellate court while other count is left pending. Georgia Cas. Co. v. McRitchie, 42 Ga. App. 488, 156 S.E. 458 (1931).
Dismissal of crossbill on general demurrer (now motion to dismiss) is not a final disposition of cause under provisions of section. Sanders v. Sanders, 212 Ga. 244, 91 S.E.2d 604 (1956).
Supreme Court of Georgia declined to address error attached to a contempt finding in a wholly separate matter; moreover, the presented pointed to no evidence in the record that tied that case to the instant prosecution. Hill v. State, 281 Ga. 795, 642 S.E.2d 64 (2007).
Judgment in contempt case is appealable without applying for discharge.
- Use of conjunctive word "and" between categories of bail trover and contempt cases in paragraph (a)(2) suggests that it was the intent of the legislature to separate these two types of cases in statute so as to authorize an appeal in a contempt case without first requiring an application for discharge. Ramsey v. Ramsey, 231 Ga. 334, 201 S.E.2d 429 (1973).
Order finding appellant in contempt but not imposing punishment is not final.
- When the trial court issues an order finding the appellant in contempt of court but does not impose punishment, no final judgment has been entered and the case is still pending in the court below and the appellate court cannot review the lower court's decision. In re Crudup, 149 Ga. App. 214, 253 S.E.2d 802 (1979).
Order to produce documents or face contempt not final order.
- When the trial court orders the defendant to permit subpoenaed documents to be copied and orders that upon any failure of the defendant to comply with the terms of the order, the defendant shall be cited to appear before the court to show cause why the defendant should not be held guilty of contempt, the contempt proceeding is pending in the court below and the trial court's order is not final and therefore can be appealed only by compliance with the interlocutory appeal provision in subsection (b) of O.C.G.A. § 5-6-34. Payne v. Presley, 169 Ga. App. 36, 311 S.E.2d 849 (1983).
Dismissal of citation for contempt is not an appealable judgment. Fulford v. Fulford, 225 Ga. 510, 170 S.E.2d 27 (1969).
Dismissal of father's motion for contempt in visitation hearing was directly appealable.
- Under O.C.G.A. § 5-6-34(a)(11), a father had the right to a direct appeal from the trial court's dismissal of a motion for contempt against the mother for interference with the father's visitation with the children. Dennis v. Dennis, 302 Ga. App. 791, 692 S.E.2d 47 (2010).
No jurisdiction to consider contempt order.
- Supreme court had no jurisdiction to consider a trial court's order holding a common law husband in contempt because the enumeration that addressed the contempt order was not predicated upon a proper and timely appeal from that order or from any other appealable order that encompassed that subsequent ruling since the contempt order was not prior to or contemporaneous with that final judgment such that it can be enumerated in the case pursuant to O.C.G.A. § 5-6-34(d) but was a subsequent ruling that the husband was not entitled to enumerate; a separate appeal was not proper in the absence of compliance with the discretionary appeal procedures set forth in O.C.G.A. § 5-6-35(a)(2), no application seeking discretionary review of the contempt order had ever been filed, and the record did not contain any transcript of the contempt hearing. Norman v. Ault, 287 Ga. 324, 695 S.E.2d 633 (2010).
Because the husband never filed the application for discretionary appeal of the June 27th contempt order finding that the husband failed to comply with the terms of the parties' divorce decree, that appeal was dismissed; thus, the husband's current appeal, to the extent that it challenged the previously appealed June 27th contempt order, was dismissed. Massey v. Massey, 294 Ga. 163, 751 S.E.2d 330 (2013).
Contempt was reviewable even if appellants followed interlocutory procedure.
- In an appeal from a contempt order entered in a child custody case, the parent and the parent's counsel were not required to follow the interlocutory appeal procedure, O.C.G.A. § 5-6-34(a)(11), but the court had jurisdiction over the appeal even though the appellants were entitled to follow the direct appeal procedure, pursuant to O.C.G.A. § 5-6-35(j). Murphy v. Murphy, 330 Ga. App. 169, 767 S.E.2d 789 (2014).
Review of Collateral Judgments, Rulings, or Orders
When collateral order directly appealable.
- Collateral order is directly appealable if the order: (1) completely and conclusively resolves the issue appealed; (2) concerns an issue which is "substantially separate" from the basic issues presented in the complaint; and (3) would result in the loss of an important right and is "effectively unreviewable on appeal." Department of Transp. v. Hardaway Co., 216 Ga. App. 262, 454 S.E.2d 167 (1995).
Because plaintiffs' claim under the Declaratory Judgment Act was independent of their claim under the Administrative Procedure Act (APA) and was directly appealable, plaintiffs could include their APA claim in their appeal under O.C.G.A. § 5-6-34(d) and were not required to file an application for appeal under O.C.G.A. § 5-6-35(a)(1). Zitrin v. Ga. Composite State Bd. of Med. Examiners, 288 Ga. App. 295, 653 S.E.2d 758 (2007), cert. denied, No. S08C0500, 2008 Ga. LEXIS 285 (Ga. 2008).
Other orders reviewable on direct appeal from denial of appeal from state to superior court.
- On a debtor's appeal from a state court's denial of the debtor's appeal to the superior court, the Court of Appeals had jurisdiction of all the state court's rulings pursuant to O.C.G.A. § 5-6-34(d), which allowed review of other orders rendered in the case that may affect the proceedings and that were raised on appeal. Roberts v. Windsor Credit Servs., 301 Ga. App. 393, 687 S.E.2d 647 (2009).
Having filed a notice of appeal from the grant of summary judgment, the plaintiff could also appeal an order denying a motion to strike. Pierce v. Wendy's Int'l, Inc., 233 Ga. App. 227, 504 S.E.2d 14 (1998).
Reporter's privilege.
- Non-parties engaged in news gathering may file a direct appeal of an order denying those parties the statutory reporter's privilege under the collateral order exception to the final judgment rule. In re Paul, 270 Ga. 680, 513 S.E.2d 219 (1999).
Review only of orders which are raised on appeal of appealable order is afforded by subsection (d). Vowell v. Carmichael, 235 Ga. 410, 219 S.E.2d 735 (1975).
When no enumeration of error is made to an order appealable under subsection (a) or (b), the court will not review an order which would have been reviewed under subsection (d). Gano v. Gano, 243 Ga. 564, 255 S.E.2d 59 (1979).
Matters not properly presented.
- Nothing in subsection (c) requires the court to pass upon a matter not properly presented for decision. Freeman v. City of Valdosta, 119 Ga. App. 345, 167 S.E.2d 170 (1969).
Order requiring county to pay defendant's expenses.
- County may file a direct appeal from an order requiring a county to pay a defendant's expenses in a murder case under the collateral order exception to the final judgment rule in O.C.G.A. § 5-6-34. Fulton County v. State, 282 Ga. 570, 651 S.E.2d 679 (2007).
Orders not appealable
- An order placing a freeze on a stroke victim's bank accounts did not fall under the collateral order exception to the final judgment rule, since it was not one of those types of orders to which the exception has been applied, and because it did not completely and conclusively resolve the issue appealed, did not concern an issue substantially separate from the basic issues presented in the complaint, and would not result in the loss of an important right. Parker v. Kennon, 235 Ga. App. 272, 509 S.E.2d 152 (1998).
Appealability of prior orders.
- Although a condominium unit owner appealed from a trial court denial of a motion to extend time to file a notice of appeal, and the owner failed to file a notice of appeal from the trial court judgment on the jury verdict and from a prior order of contempt, the appellate court was able to address errors raised on appeal therefrom, to the extent discernable, under O.C.G.A. § 5-6-34(d). Schroder v. Murphy, 282 Ga. App. 701, 639 S.E.2d 485 (2006), cert. denied, 2007 Ga. LEXIS 220 (Ga. 2007).
Subsection (c) is inapplicable to nonappealable orders entered by trial court subsequent to appeal. Vowell v. Carmichael, 235 Ga. 410, 219 S.E.2d 735 (1975).
In a suit between a church and a minister, the trial court's order striking a portion of the minister's complaint was not a final adjudication of all claims, thereby entitling the minister to appeal. It was only a determination that the minister had waived the right to a jury trial under O.C.G.A. § 23-3-66 by not filing a jury demand before a hearing was held by a special master, and not that any of the claims themselves had been waived or otherwise disposed of. Rhymes v. E. Atlanta Church of God, Inc., 284 Ga. 145, 663 S.E.2d 670 (2008).
State's ability to appeal defendant's choice to proceed without jury.
- Although a petition for a writ of prohibition was a separate civil proceeding which allowed for a final and appealable ruling regarding it, the determination of whether the state had a right to appeal a ruling was determined by the underlying subject matter, not the relief sought, and since the state was not statutorily authorized to appeal the denial of its objection to the defendant's waiver of a jury trial in a criminal case, and the denial of its petition for writ of prohibition seeking to compel a jury trial, the state supreme court had to dismiss the state's appeal of the denial of its writ of prohibition since the state supreme court did not have jurisdiction to reverse the ruling after the writ had been denied and statutory law did not permit the state to appeal that ruling. Howard v. Lane, 276 Ga. 688, 581 S.E.2d 1 (2003).
Discovery orders.
- Discovery orders are not directly appealable as an exception to the final judgment rule for appeal of collateral orders. Johnson & Johnson v. Kaufman, 226 Ga. App. 77, 485 S.E.2d 525 (1997), overruling Department of Trans. v. Hardaway, 216 Ga. App. 262, 454 S.E.2d 167 (1995).
When attorneys for a defendant in a capital case served a subpoena regarding the funding of indigent services on the Executive Director of the Georgia Public Defender Standards Council, the Council's appeal from the denial of Council's motion to quash was directly appealable under the collateral order doctrine. It involved matters that were unrelated to the basic issues to be decided in the criminal case; an appeal would conclusively resolve the discovery issue; and the important rights of a number of indigent capital defendants would be compromised if the Council had to await final judgment before seeking review. Britt v. State, 282 Ga. 746, 653 S.E.2d 713 (2007).
Discovery sanction not directly appealable.
- In a civil suit, an appellate court properly dismissed an appeal of an order finding the appellants in contempt for violating a discovery order and that dismissed the answer and entered a default judgment as to liability as the order was not directly appealable as a contempt judgment under O.C.G.A. § 5-6-34(a)(2) since the order did not impose a civil or criminal contempt sanction but rather imposed a discovery sanction under O.C.G.A. § 9-11-37(b)(2)(C). Am. Med. Sec. Group, Inc. v. Parker, 284 Ga. 102, 663 S.E.2d 697 (2008).
Denial of motion to recuse.
- Court of appeals had jurisdiction under the collateral order doctrine to consider the defendant's appeal of an order denying a motion to recuse because the trial court's order concerned a matter wholly unrelated to the basic issues to be decided in the criminal case; whether the trial judge could properly preside over the case would be unresolved if review had to await final judgment, and the order resolved the matter completely and nothing remains in the underlying case to affect it. Braddy v. State, 316 Ga. App. 292, 729 S.E.2d 461 (2012).
Constitutional speedy trial right.
- Although denial of the defendant's constitutional speedy trial demand was not immediately appealable, the denial of the defendant's statutory speedy trial right was appealable, and the constitutional speedy trial ruling was appealable under O.C.G.A. § 5-6-34(d). Johnson v. State, 300 Ga. 252, 794 S.E.2d 60 (2016).
Dependency order appealable.
- Although the complaint that initiated the dependency proceeding did not name the uncle, as the child's legal custodian, the uncle was entitled to receive notice of and be present at the preliminary protective hearing, and to be informed before that hearing of the right to an attorney; and the uncle did not waive the right to assert claims of due process violations because the uncle could challenge the propriety of an earlier, unappealed dependency order in the course of a timely direct appeal taken from a subsequent order arising out of the dependency proceeding, such as the order granting the motion for nonreunification. In the Interest of B. G., 345 Ga. App. 167, 812 S.E.2d 552 (2018).
Moot Issues
Without supersedeas, complaint that action ordered is erroneous becomes moot.
- Without supersedeas, action ordered by trial court must be done as ordered and once the ordered action is taken, complaint about its being erroneously ordered becomes moot. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974).
To prevent appeal of order requiring action which may affect rights of litigants from becoming moot, it is necessary for appealing party to obtain a supersedeas. If a supersedeas is not obtained, then ordered action takes place as ordered, and the appeal becomes moot. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974).
If trial court refuses to grant supersedeas, party may request supersedeas from an appellate court. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974).
Procedural defects cured.
- When an attorney did not claim that there were procedural defects in the entry of an appealed order, which contained findings of fact and conclusions of law relating to a previous order compelling the release of a client's file, any procedural defects with regard to the previous order were cured and the attorney's claims relating to the procedural defects in the previous order were rendered moot for purposes of O.C.G.A. § 5-6-34(d). Mary A. Stearns, P.C. v. Williams-Murphy, 263 Ga. App. 239, 587 S.E.2d 247 (2003).
Denial of summary judgment after verdict and judgment is a moot issue. Trade City G.M.C., Inc. v. May, 154 Ga. App. 371, 268 S.E.2d 421 (1980).
After verdict and judgment have been entered, Court of Appeals cannot review judgment denying motion for summary judgment because that issue became moot when court heard evidence at trial. Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga. App. 154, 264 S.E.2d 662 (1980).
Failure to seek interlocutory appeal.
- When plaintiff could have taken an interlocutory appeal of the trial court's denial of the plaintiff's motion to dismiss and plea in abatement but instead of appealing let the suit go to judgment, even assuming the proceedings would properly have been abated, the question of abatement became moot when the proceedings moved to a judgment. MNM 5, Inc. v. Anderson/6438 N.E. Partners, Ltd., 215 Ga. App. 407, 451 S.E.2d 788 (1994).
Appeal deemed moot and dismissed.
- Patients' appeal of a judgment entered against the patients in a medical malpractice action on the ground that it was error to grant a motion to transfer filed by a hospital and corporation pursuant to the forum non conveniens statute, O.C.G.A. § 9-10-31.1, was dismissed as moot because the patients admitted in the patients' appellate brief that the patients' case had already been adjudicated, and patients asserted no trial error nor any other error in the Cobb County Superior Court; therefore, any determination by the Court of Appeals regarding whether the Fulton County Superior Court was authorized under the forum non conveniens statute to transfer the patients' case to Cobb County Superior Court for adjudication would be an abstract exercise unrelated to any existing facts or rights. Lamb v. Javed, Ga. App. , S.E.2d (Jan. 19, 2010).
Mother's appeal from juvenile court's finding of deprivation was rendered moot by subsequent unappealed deprivation and custody judgments in the juvenile court; in the period of time between the issuance of the order appealed from and the docketing of the mother's appeal, the juvenile court conducted a disposition hearing and later issued an order reaffirming the court's finding of the child's deprivation and grant of temporary custody to the Department of Health Services' Division of Children and Family Services, an order which the mother did not appeal. In the Interest of T. H., 319 Ga. App. 216, 735 S.E.2d 287 (2012).
As the denial of a former director's putative transferee's motion in limine was based on the former evidence code, and the trial would be based on the new evidence code, an interlocutory appeal of the ruling on the motion in limine was moot. Am. Nat'l Holding Corp. v. EMM Credit, LLC, 323 Ga. App. 655, 748 S.E.2d 683 (2013).
In two appeals in which the mothers of the respective six children challenged the juvenile court's order transferring custody of their children to the Department of Family and Children Services following the mothers' voluntary surrender of the children to the paternal grandparents for adoption because the children were ultimately adopted by the grandparents, which was the very relief the mothers sought and to which the mothers consented, there was no error left for the appellate court to correct; thus, the mothers' claims on appeal were moot, and their appeals were dismissed. In the Interest of S. A. D., 345 Ga. App. 631, 814 S.E.2d 775 (2018).
Failure to grant requested supersedeas moot.
- Mother who was found in contempt for denying a child's father his visitation rights had appealed only the trial court's visitation modification and not the trial court's finding of contempt; therefore, her challenge to the trial court's denial of supersedeas under O.C.G.A. § 5-6-13(a) based on O.C.G.A. § 5-6-34(e) was moot. Weeks v. Weeks, 324 Ga. App. 785, 751 S.E.2d 575 (2013).
Application
1. In General
Failure to comply with subsection (b).
- Denial of a motion to recuse was not a final order and failure to comply with the provisions of subsection (b) of O.C.G.A. § 5-6-34 mandated the dismissal of the appeal of that motion. Warringer v. Warringer, 204 Ga. App. 86, 418 S.E.2d 446 (1992).
Judgment appealed from must be in writing.
- Before appeal may be made, judgment appealed from must be in writing. Merrill v. State, 128 Ga. App. 403, 196 S.E.2d 876 (1973).
Party that sought and was granted an interlocutory appeal from the denial of the party's motion for summary judgment, but failed to timely file the party's notice of appeal in compliance with subsection (b) of O.C.G.A. § 5-6-34, committed a procedural default fatal to the party's appeal and was foreclosed from resubmitting the matter for appellate review. International Indem. Co. v. Robinson, 231 Ga. App. 236, 498 S.E.2d 795 (1998).
When the defendant permitted the vacation of a court order in conjunction with transfer of the entire case for jury trial, the judgment appealed from was not final within the meaning of paragraph (a)(1) of O.C.G.A. § 5-6-34 and the defendant's appeal was dismissed for failure to comply with subsection (b) of § 5-6-34. Dobbs v. Atkinson, 238 Ga. App. 151, 517 S.E.2d 597 (1999).
Given that paragraphs 12 and 13 of the superior court's "final judgment and decree of divorce" provided 90 days for action by the parties, the propriety of which action would be open to review by the trial court, and made a spouse's application for discretionary appeal therefrom interlocutory in nature, when the spouse failed to follow the interlocutory appeal procedures set out in O.C.G.A. § 5-6-34(b), the application was dismissed. Miller v. Miller, 282 Ga. 164, 646 S.E.2d 469 (2007).
Since a church's suit against a minister involved multiple claims, and the trial court's decision adjudicated fewer than all of the claims, in order to appeal, the minister had to either: (1) obtain entry of judgment under O.C.G.A. § 9-11-54(b) based on a finding of no just reason for delay; or (2) obtain a certificate allowing immediate appeal under O.C.G.A. § 5-6-34(b). Because neither § 5-6-34(b) nor § 9-11-54(b) was followed, the minister's appeal was premature. Rhymes v. E. Atlanta Church of God, Inc., 284 Ga. 145, 663 S.E.2d 670 (2008).
Plaintiff's motion to dismiss the defendants' appeal was denied because the defendants were not required to file an application for discretionary appeal pursuant to O.C.G.A. § 5-6-34(b); the underlying subject of the appeal was not one of those listed in O.C.G.A. § 5-6-35 requiring an application, and the trial court's order was final because there was nothing pending in the trial court. Std. Bldg. Co. v. Schofield Interior Contrs., Inc., 315 Ga. App. 516, 726 S.E.2d 760 (2012).
Certification of class action.
- Attorneys, who were divided by the trial court into two classes, were not required to seek an interlocutory appeal from that ruling, and the attorneys were permitted by O.C.G.A. § 5-6-34(d) to raise the trial court's rulings on certification on appeal from a final judgment; thus, the City of Atlanta's argument in the tax refund case that it had relied upon the denial of certification as to one of two classes of attorneys with regard to a tax refund failed. Barnes v. City of Atlanta, 281 Ga. 256, 637 S.E.2d 4 (2006).
When an application is transferred from one appellate court to the other, the 30-day time period is to be computed from the date of the filing in the court to which the application has been transferred. Marr v. Georgia Dep't of Educ., 264 Ga. 841, 452 S.E.2d 112 (1995).
Final judgment cannot be amended at subsequent term. Redmond v. Walters, 228 Ga. 417, 186 S.E.2d 93 (1971).
Nunc pro tunc certificate of immediate review is without efficacy to support appeal. Whitlock v. State, 124 Ga. App. 599, 185 S.E.2d 90 (1971).
Nunc pro tunc entry cannot be used to correct failure to comply with mandatory requirements of Appellate Practice Act. Blackstone v. State, 131 Ga. App. 666, 206 S.E.2d 553 (1974).
Trial court's nunc pro tunc order entered after notice of appeal filed was not reviewable.
- In a breach of contract action between a restaurateur and a contractor arising out of construction of a sun room and patio, the contractor's enumerations of error challenging specific findings of fact and conclusions of law in the trial court's order entered after the notice of appeal had been filed were not considered on appeal. Blackmon v. Pena, 345 Ga. App. 7, 812 S.E.2d 112 (2018).
No revival of right to appeal.
- Nunc pro tunc entry of certificate for immediate review cannot revive right of appeal which has expired. Whitlock v. State, 124 Ga. App. 599, 185 S.E.2d 90 (1971).
Filing of notice of appeal acts as supersedeas even in interlocutory appeal. Lawrence v. Whittle, 146 Ga. App. 686, 247 S.E.2d 212 (1978).
After the correct procedure is followed, the notice of appeal acts as a supersedeas in the case. Carter v. Data Gen. Corp., 162 Ga. App. 244, 291 S.E.2d 99 (1982).
Appellee in interlocutory appeal cannot voluntarily dismiss claim involved after notice of appeal is filed. Sacks v. McCrory, 156 Ga. App. 174, 274 S.E.2d 158 (1980).
Untimely filed notice of appeal is not grounds for dismissal when the appellant was entirely without fault in regard to the delay, but rather the delay was caused by the clerk's error. Western Elec. Co. v. Capes, 164 Ga. App. 353, 296 S.E.2d 381 (1982), cert. vacated, 250 Ga. 890, 302 S.E.2d 108 (1983).
Disposition of a motion for an out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal; Georgia's courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied the right of appeal through counsel's negligence or ignorance, or if the appellant was not adequately informed of the appellant's appeal rights. Copeland v. State, 264 Ga. App. 905, 592 S.E.2d 540 (2003).
Trial court order rejecting the defendant's amended motion for an out of time appeal was affirmed because the defendant's attempt to amend the already adjudicated motion for an out-of-time appeal was untimely and jurisdictionally improper before the trial court. Moore v. State, 303 Ga. 743, 814 S.E.2d 676 (2018).
Notice of appeal prevents plaintiff from dismissing case while any issue is on appeal.
- Filing of notice of interlocutory appeal acts as supersedeas so as to prevent the plaintiff from dismissing the case while any issue was on appeal under Ga. L. 1966, p. 609, § 41 (see O.C.G.A. § 9-11-41(a)). To hold otherwise would subject the appellant to additional costs and possible harassment by appellee who dismisses pending suit when faced with reversal on interlocutory appeal; appellee could then refile his lawsuit, and require the appellant to again bring appeal; just as subsection (a) of Ga. L. 1966, p. 609, § 41 prevented such actions when an appeal was taken from the final judgment, so too the statute applied in instances of appeal from interlocutory rulings. Steele v. Steele, 243 Ga. 522, 255 S.E.2d 43 (1979).
Notice timely if filed within 30 days of entry of order.
- Because the petitioner filed the notice of appeal 30 days after the trial court denied the petitioner's renewed motion for reconsideration, which was in substance a second motion to seal the petitioner's criminal records, the appellate court did not lack jurisdiction on the basis that the notice was not timely filed. Doe v. State, 347 Ga. App. 246, 819 S.E.2d 58 (2018).
Two methods for appealing orders as to less than all claims of parties.
- There were two principal methods by which appeal might be brought from orders in multi-claim party cases as to less than all claims or parties involved. One was that complaining party may obtain certificate of immediate review from trial judge under subsection (b) of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34). The second method was where the trial judge entered an order upon express determination that there were no just reasons of delay and upon express direction for entry of judgment under provision of Ga. L. 1966, p. 609, § 54 (see O.C.G.A. § 9-11-54(b)). When second method was used, the appellate court must still determine whether the judgment rendered met the requirements of finality contained in former Code 1933, § 6-701. J.C. Penney Co. v. Malouf Co., 125 Ga. App. 832, 189 S.E.2d 453 (1972), rev'd on other grounds, 230 Ga. 140, 196 S.E.2d 145 (1973).
When order appealed from adjudicated less than all claims and did not provide for the entry of a final judgment as provided in Ga. L. 1966, p. 609, § 54 (see O.C.G.A. § 9-11-54(b)), nor was there a certificate as provided by subsection (b) of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34), there was no appealable judgment. Givens v. Gray, 124 Ga. App. 152, 183 S.E.2d 29 (1971).
Judgment need not be attacked by one of the methods provided in Ga. L. 1967, p. 226, §§ 26, 27, 30 (see O.C.G.A. § 9-11-60), as any final judgment may be timely appealed. Hiscock v. Hiscock, 227 Ga. 329, 180 S.E.2d 730 (1971).
Orders entered subsequent to the filing of a notice of appeal are appealable only pursuant to a subsequently filed notice of appeal. An enumeration of error which addresses the subsequent grant of summary judgment on the issue of damages is not predicated upon a timely filed notice of appeal from that order or from any other appealable order which encompasses that subsequent ruling. Costanzo v. Jones, 200 Ga. App. 806, 409 S.E.2d 686, cert. denied, 200 Ga. App. 895, 409 S.E.2d 686 (1991).
Motion for rehearing pending when notice of appeal is filed.
- Motion for rehearing, undisposed of at time notice of appeal is filed does not cause appeal to be premature, inasmuch as pendency of such motion does not toll time for filing appeal. George v. Lee, 118 Ga. App. 302, 163 S.E.2d 262 (1968).
Prior nonappealable order may be used as enumeration of error whenever appeal is brought to Court of Appeals from final judgment. Kilgore v. Kennesaw Fin. Co., 128 Ga. App. 120, 195 S.E.2d 799 (1973).
When judgment can be appealed under certificate of appealability, plaintiffs have right to elect to await entry of final judgment disposing of case entirely before entering appeal, and in so doing they are authorized to enumerate error on prior judgment. Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 204 S.E.2d 789 (1974).
Pursuant to subsection (d) of O.C.G.A. § 5-6-34, the defendant would be entitled to enumerate as error any other prior or contemporaneous rulings in the case. Defendant would not, however, be entitled to enumerate as error any and all other subsequent rulings in the case. Costanzo v. Jones, 200 Ga. App. 806, 409 S.E.2d 686, cert. denied, 200 Ga. App. 895, 409 S.E.2d 686 (1991).
Discretionary review when no direct appeal in custody dispute.
- Although a trial court's order in a custody dispute between a child's grandmothers was not an order that was subject to direct appeal as the appellate court had granted the paternal grandmother's application for interlocutory appeal when a prior jurisdictional statute was in effect, the court exercised the court's discretion to retain the appeal and review the case on the merits. Barfield v. Butterworth, 323 Ga. App. 156, 746 S.E.2d 819 (2013).
On appeal from denial of temporary alimony, error may be assigned on temporary custody order included in same order, without reference to appealability of custody order standing alone. Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575 (1970).
Order denying legitimation.
- Appellate court dismissed an alleged biological father's appeal to a trial court's denial of a petition for legitimation because the alleged father was required to file a discretionary application for appeal under O.C.G.A. § 5-6-35(a)(12) and since no such application was filed, the appellate court was without jurisdiction to hear the merits of the appeal. Numanovic v. Jones, 321 Ga. App. 763, 743 S.E.2d 450 (2013).
Grant of motion to dismiss.
- Appeal involving the grant of a motion to dismiss for failure to follow a procedural requirement of the Georgia Business Corporation Code was not convertible to a summary proceeding; as such, the general appellate process was applicable. McGregor v. Stachel, 200 Ga. App. 324, 408 S.E.2d 118 (1991).
Decisions of administrative agencies.
- When taxpayer did not file an application for discretionary appeal from a decision of the superior court reviewing a decision of the Department of Revenue, but chose to appeal directly to Supreme Court pursuant to subsection (a) of O.C.G.A. § 5-6-34, such appeal was dismissed for failure to comply with procedure for appeal from decisions of administrative agencies required by O.C.G.A. § 5-6-35. Plantation Pipe Line Co. v. Strickland, 249 Ga. 829, 294 S.E.2d 471 (1982).
Resolution of merits of administrative appeal was not authorized by subsection (d) of O.C.G.A. § 5-6-34, when holdings on appeal that the appellant was not entitled to declaratory-judgment and mandamus remedies were predicated upon the availability of the administrative appeal to the superior court and not upon the appellant's entitlement to judicial relief therein. Consequently, appellate review of the merits of the administrative appeal would not have affected the holdings sustaining the superior court's denial of mandamus and declaratory-judgment relief. Rybert & Co. v. City of Atlanta, 258 Ga. 347, 368 S.E.2d 739 (1988), overruled on other grounds, Southern States Landfill, Inc. v. City of Atlanta Bd. of Zoning Adjustments, 261 Ga. 759, 410 S.E.2d 721 (1991).
Licensee of coin-operated amusement machines could appeal directly.
- Because O.C.G.A. § 50-27-4 provided that the Georgia Lottery Corporation (GLC) was not an agency of the state, a superior court order reviewing a decision of the GLC did not fall within the ambit of O.C.G.A. § 5-6-35(a)(1), requiring an application for discretionary review of agency decisions; rather, a licensee of coin-operated amusement machines (COAM) could appeal directly under O.C.G.A. § 5-6-34(a). Amusement Leasing, Inc. v. Ga. Lottery Corp., 352 Ga. App. 243, 834 S.E.2d 330 (2019).
Appeal from prosecution of city ordinance in city court.
- When uniform traffic citation and complaint form was used to charge an offense in a constitutional city court, but the solicitor (now prosecuting attorney) subsequently amended the form to allege a violation of a city ordinance, jurisdiction of an appeal lay in the superior court rather than the Court of Appeals. Parnell v. City of Atlanta, 173 Ga. App. 602, 327 S.E.2d 569 (1985).
Mayor was not required to follow the interlocutory review process because the mayor filed a notice of appeal from the denial of the mayor's motion to dismiss based on O.C.G.A. § 9-11-11.1 and was entitled to an immediate appeal. Grogan v. City of Dawsonville, 305 Ga. 79, 823 S.E.2d 763 (2019).
Failure to pursue interlocutory review of order which is not final judgment.
- When trial court's order does not constitute a final judgment, an appeal therefrom is premature when a party fails to pursue the procedure for interlocutory review. Commercial Bank v. Simmons, 157 Ga. App. 391, 278 S.E.2d 53 (1981).
Other claims pending.
- Order granting writ of possession was not subject to direct appeal, because other claims remained pending in the trial court (e.g., issue of commissions owed to defendant and past rent due and owing to plaintiff). Whiddon v. Stargell, 192 Ga. App. 826, 386 S.E.2d 884 (1989).
Order that merely dismissed a complaint but did not dispose of a counterclaim was not a final appealable judgment. Hogan Mgt. Servs. v. Martino, 225 Ga. App. 168, 483 S.E.2d 148 (1997).
Trial court erred in denying the children's petition for a writ of mandamus to compel a judge to allow the children to appeal from the order dismissing their appeals because the award of attorney fees under O.C.G.A. § 13-6-11 was considered part of the underlying case; therefore, if the judgment reserves the issue of attorney fees under § 13-6-11, then one cannot claim that "the case is no longer pending in the court below" as required by O.C.G.A. § 5-6-34(a)(1). Sotter v. Stephens, 291 Ga. 79, 727 S.E.2d 484 (2012).
Review of stalking protective order.
- Stalking protective order enjoined and restrained the mother-in-law from contacting, harassing, interfering, intimidating, or approaching the applicant or the applicant's immediate family and, thus, although the action remained pending below, the mother-in-law could directly appeal from the stalking protective order. Babinsack v. Alfonso-Garcia, 337 Ga. App. 113, 786 S.E.2d 501 (2016).
Case involving a "domestic relations" issue wherein the appellant sought domestication and "correction" of a foreign divorce decree, normally within the jurisdiction of the Court of Appeals, also involved claims based upon an unincorporated settlement agreement which raised no "domestic relations" issue and, therefore, the Supreme Court had jurisdiction over the direct appeal from the grant of summary judgment in favor of the former husband as to the former wife's claims for specific performance of the settlement agreement and jurisdiction over the rulings on all the former wife's claims, including the "domestic relations" claim. Eickhoff v. Eickhoff, 263 Ga. 498, 435 S.E.2d 914 (1993).
Mother's challenge to deprivation order.
- Because a mother's challenge to the unappealed February 11, 2004 deprivation order was brought on April 29, 2004, as part of a timely appeal from the April 21, 2004 disposition order entered in the same deprivation proceeding. motions filed by the Department of Children and Family Services requesting that the mother's appeals be dismissed were denied. In the Interest of S.P., 282 Ga. App. 82, 637 S.E.2d 802 (2006).
Denial of motion to modify in child deprivation proceeding.
- Phrase "child custody cases" within the meaning of O.C.G.A. § 5-6-34(a)(11) does not include a child deprivation proceeding in which a custody order has been entered; however, the decision to terminate reunification services is a final judgment directly appealable under O.C.G.A. §§ 5-6-34(a)(1) and15-11-3. In re J. N., 302 Ga. App. 631, 691 S.E.2d 396 (2010).
Order denying legitimation directly appealable with termination order.
- Although an order denying a putative father's petition to legitimate his minor child was subject to the discretionary appeal procedure under O.C.G.A. § 5-6-35(a)(2), it was directly appealable under O.C.G.A. § 5-6-34(d) where the father filed the appeal together with an appeal from the trial court's decision to terminate his parental rights. In the Interest of T.A.M., 280 Ga. App. 494, 634 S.E.2d 456 (2006).
Order granting motion to enforce settlement agreement regarding custody.
- Wife was entitled to file a direct appeal under O.C.G.A. § 5-6-34(a)(11) of an order granting a husband's motion to enforce a settlement agreement regarding child custody and visitation because the final custody order predicated the award of child custody and visitation on the settlement agreement, not on the allegations of the divorce complaint addressed in a temporary hearing or trial; therefore, the relevant legal action for jurisdictional purposes was the husband's motion to enforce the settlement agreement, and since that motion was filed in 2008, the wife was authorized to file a direct appeal in the case. Martinez v. Martinez, 301 Ga. App. 330, 687 S.E.2d 610 (2009).
Visitation orders.
- Mother could not object on appeal to an order that was entered on her motion to enforce an agreement between her and her children's grandmother regarding the grandmother's visitation with the children because the order was entered by the mother's agreement. The mother's direct appeal was proper under O.C.G.A. § 5-6-34(a)(11). Hargett v. Dickey, 304 Ga. App. 387, 696 S.E.2d 335, cert. dismissed, No. S10C1688, 2010 Ga. LEXIS 911 (Ga. 2010).
Divorce case involving child custody.
- Mother's appeal of a judgment vacating an award of physical custody of a child to her and revising the decree to award physical custody of the child to the father was properly before the supreme court because the mother followed the required application procedures, and the timing of her notice of appeal did not deprive her of the appeal; because it was not a child custody case but a divorce case in which child custody was an issue, O.C.G.A. § 5-6-35(a)(2) required an application for discretionary appeal, and a direct appeal was not authorized by O.C.G.A. § 5-6-34(a)(11). Todd v. Todd, 287 Ga. 250, 696 S.E.2d 323 (2010).
Although a divorce decree determines, among other things, child custody, such determination does not transform it into a "child custody case" as that phrase is used in O.C.G.A. § 5-6-34(a)(11) because a divorce action is not a child custody proceeding but is a proceeding brought to determine whether a marriage should be dissolved, O.C.G.A. § 19-5-1 et seq.; all other issues in a divorce action, including child custody, are merely ancillary to that primary issue. Todd v. Todd, 287 Ga. 250, 696 S.E.2d 323 (2010).
Wife's appeal of a judgment granting a husband's motion under O.C.G.A. § 9-11-60(d)(2) to set aside an order awarding the wife sole legal and physical custody of the parties' children, eliminating the husband's right of visitation, and increasing the husband's child support obligations was a "custody case" subject to direct appeal pursuant to O.C.G.A. § 5-6-34(a)(11); the grant of a motion to set aside in a child custody case is directly appealable, and an action seeking to change visitation qualifies for treatment as a "child custody case". Edge v. Edge, 290 Ga. 551, 722 S.E.2d 749 (2012).
Direct appeal in a child custody case.
- Custodial parent had a right under O.C.G.A. § 5-6-34(a)(11) to appeal directly from a judgment or order in a child custody case that refused to change custody and that held the parent in contempt of a child custody judgment or order. Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011).
Because the trial court denied the grandmother's petition for custody and visitation, the denial of the grandmother's motion was directly appealable. In the Interest of L. R. M., 333 Ga. App. 1, 775 S.E.2d 254 (2015).
Lis pendens.
- Husband's motion on appeal for cancellation of a lis pendens entered in favor of his wife pursuant to O.C.G.A. § 44-2-136 was not considered because the propriety of the ruling by the trial court denying cancellation of the lis pendens was not enumerated as error on appeal, and the matter was not properly before the appellate court pursuant to O.C.G.A. § 5-6-34(d). Gardner v. Gardner, 276 Ga. 189, 576 S.E.2d 857 (2003).
Announcement of intent to appeal does not terminate juvenile transfer proceedings.
- Announcement by counsel of counsel's intent to appeal a denial of counsel's plea of double jeopardy did not require the trial court to terminate juvenile transfer proceedings. In re T.E.D., 169 Ga. App. 401, 312 S.E.2d 864 (1984).
Appeal from the denial of a post-judgment discovery order could not be used as a vehicle for obtaining appellate review of the final judgment entered in the case when the time for appealing that judgment had otherwise expired. Barton v. Anthony, 194 Ga. App. 500, 391 S.E.2d 25 (1990).
Post-judgment discovery.
- General rule that orders regarding discovery during the pendency of litigation must be appealed under the application procedures of subsection (b) of O.C.G.A. § 5-6-34 apply to post-judgment discovery. Sipple v. Atwood, 223 Ga. App. 677, 478 S.E.2d 473 (1996).
Motion to compel discovery improperly denied.
- In a premises liability action involving a rape of a minor at an apartment building, the trial court abused the court's discretion in denying the plaintiff's motion to compel discovery without either reaching the merits or determining whether the desired discovery procedures had been promptly commenced, diligently pursued, and completed without unnecessary delay and the court's reasoning that the trial was only a few weeks away with no time to address the matter fairly and thoughtfully was not compelling. Pres. Mgmt., Inc. v. Herrera, 352 Ga. App. 710, 835 S.E.2d 777 (2019).
Denial of "motion for continuance."
- Appeal taken from the denial of a "Motion for Continuance or Motion in Opposition to Entry of Judgment of Bond Forfeiture," was dismissed on the ground that the appeal was taken from an order or judgment which was not directly appealable. Taylor v. State, 194 Ga. App. 245, 390 S.E.2d 601 (1990).
Direct appeal from petition for inspection and copying of records..
- When an action arose as a petition for inspection and copying of corporate records, the matter was correctly before the appellate court by direct appeal under O.C.G.A.5-6-34(a)(1). Motor Whse., Inc. v. Richard, 235 Ga. App. 835, 510 S.E.2d 600 (1998).
Motion to lift a freeze on bank accounts.
- Court's order denying a motion to lift a freeze on a stroke victim's bank accounts was not a final judgment or any other type of judgment that was directly appealable. Parker v. Kennon, 235 Ga. App. 272, 509 S.E.2d 152 (1998).
Motion for transcript treated as mandamus petition.
- Defendant's post-conviction motion for a trial transcript at government expense was treated as a mandamus petition. Coles v. State, 223 Ga. App. 491, 477 S.E.2d 897 (1996), overruled on other grounds, Henderson v. State, 303 Ga. 241, 2018 Ga. LEXIS 145 (2018).
Denial of petition for writ of mandamus.
- Injured parties' petition for a writ of mandamus was properly denied as the injured parties could have appealed from an order denying the parties' motion seeking the recusal of a judge in a malpractice action under O.C.G.A. § 5-6-34(a)(1) and (d) when the parties sought the extraordinary relief of a writ of mandamus. Whitley v. Schwall, 279 Ga. 726, 620 S.E.2d 827 (2005).
Denial of motion to recuse a trial court should have been raised in earlier appeal on the merits.
- Appellate court reviewing a grant of attorney's fees against a litigant would not consider the denial of the litigant's motion to recuse the trial judge on the second appeal of the case because the denial of the motion to recuse could have been raised by the litigant in the litigant's earlier appeal of the case but was not. Jones v. Unified Gov't of Athens-Clarke County, 312 Ga. App. 214, 718 S.E.2d 74 (2011), cert. denied, No. S12C0387, 2012 Ga. LEXIS 228 (Ga. 2012).
Judgment in mandamus action subject to direct appeal.
- Even though appellant doctor sought review of a decision by appellee board of medical examiners by filing a mandamus action, and even though a judgment in a mandamus action was subject to direct appeal under O.C.G.A. § 5-6-34, the doctor was required to file an application to appeal pursuant to O.C.G.A. § 5-6-35 because the underlying subject matter of the doctor's appeal was covered by O.C.G.A. § 5-6-35. Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 564 S.E.2d 715 (2002).
Appellate jurisdiction of denial of motion to seal criminal record.
- Because an appeal of the denial of a motion to seal a criminal record under O.C.G.A. § 35-3-37(m) failed to present a viable challenge to the statute's constitutionality, Ga. Const. 1983, Art. VI, Sec. VI, Para. II(1), because the challenge (a separation of powers argument, Ga. Const. 1983, Art. I, Sec. II, Para. III, based on the Supreme Court's record-keeping authority under Ga. Const. 1983, Art. VI, Sec. IX, Para. I, and Ga. Unif. Super. Ct. R. 21.4) was not raised below, jurisdiction was properly before the Court of Appeals, pursuant to O.C.G.A. § 5-6-34(a)(12). Doe v. State, 303 Ga. 237, 811 S.E.2d 413 (2018).
Judgment entitling landlord to retain a $2,500 earnest money deposit as liquidated damages, and requiring tenants to pay $1200 as increased rent, exceeded $2,500, and, accordingly, was subject to direct appeal. Alexander v. Steining, 197 Ga. App. 328, 398 S.E.2d 390 (1990).
Judgment condemning property was not final because the issue of just and adequate compensation was still pending below. Cook v. Georgia Power Co., 204 Ga. App. 119, 418 S.E.2d 451 (1992).
Judgment on arbitration award not final.
- Limited liability company's appeal was dismissed as the order was not a final judgment under O.C.G.A. § 5-6-34(a)(1) since the matter had been remanded for an arbitrator's clarification of one invoice, the arbitrator had entered a clarification ruling, and the clarification ruling formed no part of the judgment; a subcontractor's cross-appeal was dismissed for the same reason. Johnson Real Estate Invs., LLC v. Aqua Indus., 275 Ga. App. 532, 621 S.E.2d 530 (2005).
No express final judgment.
- Since there was no determination that there was no just reason for delay and express direction of final judgment pursuant to O.C.G.A. § 9-11-54(b), the orders which the plaintiff would appeal were interlocutory and not appealable without compliance with the interlocutory appeal procedure of subsection (b) of this section. Wright v. Millines, 212 Ga. App. 453, 442 S.E.2d 300 (1994).
Orders requiring supersedeas bonds not final.
- Since there were matters still pending in the cases, orders requiring supersedeas bonds were not final and, thus, not subject to direct appeal. Pruett v. Commercial Bank, 211 Ga. App. 692, 440 S.E.2d 85 (1994).
Order in partition proceeding appointing commissioners and ordering sale of land.
- When application is made to the superior court for partition of land by sale, and judge, after hearing evidence, appoints commissioners, and orders the commissioners to sell the land, such judgment is so far final as to authorize the objecting party to bring the case to the Supreme Court by a proper bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50). Lanier v. Gay, 195 Ga. 859, 25 S.E.2d 642 (1943) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Judgment denying motion to dismiss motion for new trial when no motion for judgment n.o.v. is pending, would be one from which direct appeal could be taken. Fulton v. Chattanooga Publishing Co., 98 Ga. App. 473, 105 S.E.2d 922 (1958) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Order and judgment of trial court disallowing and striking amendment to petition leaves case pending in court below. Such order is not a final disposition of case in trial court. Virginia Well & Supply Co. v. Landers, 99 Ga. App. 397, 108 S.E.2d 756 (1959) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
When trial judge vacates his order overruling demurrers (now motion to dismiss) to petition, there has been no final judgment in case and filing of bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50) to Court of Appeals is premature. Rushin v. Winecoff, 94 Ga. App. 413, 94 S.E.2d 755 (1956) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Until petition for interpleader is dismissed, or otherwise disposed of, cause is pending in trial court. Grogan v. Bank of Acworth, 212 Ga. 421, 93 S.E.2d 569 (1956) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Order sustaining demurrer (now motion to dismiss) to motion made pursuant to former Code 1933, § 24-1704 (see O.C.G.A. § 15-19-7) to require counsel to produce, prove, and show authority under which the party appears in cause and to disclose name of party or parties who employed the party and the name of the real party at interest was not a final judgment that may be reviewed by bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50) to Court of Appeals. Carlock v. Emery, 104 Ga. App. 783, 123 S.E.2d 309 (1961) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Denial of motion for change of venue on ground of inability to obtain fair trial.
- Exception to refusal of motion for change of venue, based solely on ground that the defendant cannot obtain fair trial in county in which the defendant is under indictment, cannot form basis of direct bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50) to Court of Appeals prior to final judgment in case. Nickles v. State, 86 Ga. App. 284, 71 S.E.2d 574 (1952) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Striking of plea of former jeopardy, filed by accused in criminal case, is not a final judgment, and a direct bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50) assigning error upon judgment striking plea is prematurely brought and must be dismissed. McNeal v. State, 88 Ga. App. 333, 76 S.E.2d 640 (1953) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Judgment sustaining or striking plea of res judicata is not final or otherwise within meaning of section. Stout v. Pate, 209 Ga. 536, 74 S.E.2d 458 (1953) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Judgment sustaining plea of res judicata to suit, but not ordering dismissal of action, is not "final," within meaning of section. Harris v. Stowers, 192 Ga. 215, 15 S.E.2d 193 (1941) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Determination of merits of traverse is a mere interlocutory proceeding, and exceptions to rulings in reference thereto may be included in main bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50) which excepts also to error alleged to have been committed in trial of case, after determination of issue raised by traverse. Ragsdale v. Middlebrooks, 50 Ga. App. 8, 176 S.E. 825 (1934) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Judgment declaring entry of default void is no more final than judgment opening default. Ryles v. Moore, 191 Ga. 661, 13 S.E.2d 672 (1941) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Judgment affirming order of State Board of Workmen's (now Workers') Compensation dismissing plea in abatement filed before board is not a final judgment and is not subject to appeal. Scarbrough v. Portress, 111 Ga. App. 875, 143 S.E.2d 555 (1965) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Order appointing partitioners is not a final judgment within meaning of section. Wood v. W.P. Brown & Sons Lumber Co., 199 Ga. 167, 33 S.E.2d 435 (1945) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Order in partition proceeding.
- In partition proceeding where division of lands among co-owners was sought by having, under former Code 1933, § 85-1504 (see O.C.G.A. § § 44-6-160) the lands divided by metes and bounds, an order of the court adjudicating what we respective interests of parties in and to realty involved, and appointing partitioners to divide the property in accordance therewith, and make return to court, was merely interlocutory. Lanier v. Gay, 195 Ga. 859, 25 S.E.2d 642 (1943) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Interlocutory order or judgment refusing to dissolve receivership cannot be reviewed in Supreme Court on direct bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50). Melton v. Holland, 204 Ga. 539, 50 S.E.2d 211 (1948) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Direction to receivers to collect rents from defendant, or exclude defendant from property, was an administrative order to carry into effect former order appointing receivers (which order was by consent of all parties), and is not such a final judgment as will support a direct bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50). Melton v. Holland, 204 Ga. 539, 50 S.E.2d 211 (1948) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Order approving, disapproving or rejecting auditor's report.
- Whether the court approves, disapproves, or rejects report of auditor, the court's ruling in this matter is only an interlocutory order which does not amount to a final judgment. Jordan v. Harber, 182 Ga. 621, 186 S.E. 670 (1936) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Order overruling exceptions of law and of fact to auditor's report did not amount to final judgment, nor would judgment sustaining such exceptions, as sought by the plaintiff in error, have been a final disposition of the cause. Moncrief v. Rimer, 181 Ga. 4, 181 S.E. 169 (1935) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Order overruling exceptions to auditor's report.
- Order overruling exceptions to the auditor's report is not a final judgment within meaning of section, unless the court made the auditor's report the judgment of the court, thus adjudicating the rights of the parties on merits. Farrar v. Ainsworth, 207 Ga. 185, 60 S.E.2d 366 (1950) (decided under former Code 1933, § 6-701, as it read prior to revision by Ga. L. 1965, p. 18, § 1).
Voluntary dismissal without prejudice was not a "final termination" of the case, and so the 45-day "window of opportunity" for moving for penalties and attorneys fees pursuant to O.C.G.A. § 9-15-14 did not begin to run with the plaintiff's voluntary dismissal of the plaintiff's complaint without prejudice, and the plaintiff's motion for penalties and attorney fees was timely; however, the award of attorneys fees was vacated and the case was remanded when the trial court's judgment contained no findings of conduct that authorized the award. Meister v. Brock, 268 Ga. App. 849, 602 S.E.2d 867 (2004).
Order overruling plea in bar.
- Trial court's order overruling a plea in bar was directly appealable. Langlands v. State, 282 Ga. 103, 646 S.E.2d 253 (2007).
Order concerning transfer of tax funds.
- Citizens' appeal was dismissed for lack of jurisdiction because the trial court's orders denying the citizens interlocutory injunctive relief and authorizing a city and development authority to transfer disputed tax funds to a school system were not subject to direct appeal; the trial court's order authorizing the city and development authority to transfer disputed tax funds to the school system for the school's general purposes was an amendment of the trial court's order granting an interlocutory injunction and was a finding by the trial court that a final order in the appellants' favor was unlikely, and the order denying the citizens an interlocutory injunction was not a ruling on an issue raised in the parties' cross-motions for partial summary judgment, which remained pending in the trial court. Clark v. Atlanta Indep. Sch. Sys., 311 Ga. App. 255, 715 S.E.2d 668 (2011).
Order on emergency motion directly appealable.
- Trial court erred in dismissing an employee's notice of appeal challenging the grant of an employer's emergency motion because the trial court's order on the emergency motion was directly appealable, and, therefore, the order dismissing the notice of appeal from the order on the emergency motion was, itself, directly appealable under O.C.G.A. § 5-6-34(a)(4), and the Court of Appeals had jurisdiction to consider the appeal; the trial court's order on the emergency motion was, in effect, a mandatory permanent injunction because it required the employee to provide the employer details about prior settlements and insurance coverage in the underlying tort suit, and it prohibited the employee from settling any claims or going to trial unless the employee complied with O.C.G.A. § 33-24-56.1. Lamb v. Salvation Army, 301 Ga. App. 325, 687 S.E.2d 615 (2009).
Appellate jurisdiction to review grant of summary judgment in conversion claims.
- Court of appeals had appellate jurisdiction to review the grant of summary judgment in favor of a bank on the bank's conversion claim against a real estate firm because the grant of summary judgment was directly appealable under O.C.G.A. § 9-11-56(h), and the firm's cross-appeal of that grant of summary judgment could stand on the firm's own merits; because the court of appeals had jurisdiction to review the grant of summary judgment in favor of the bank on the bank's conversion claim, the court also had jurisdiction pursuant to O.C.G.A. § 5-6-34(d) to review the denial of the firm's motion for summary judgment on that same issue. Trey Inman & Assocs., P.C. v. Bank of Am., N.A., 306 Ga. App. 451, 702 S.E.2d 711 (2010).
Denial of semen testing not appealable.
- Inmate could not take advantage of O.C.G.A. § 5-6-34(d) to appeal the denial of the inmate's motion for forensic testing of a semen sample because, while the order denying the motion also denied a sentence modification, the inmate had not sought review of that portion of the order. Bradberry v. State, 315 Ga. App. 434, 727 S.E.2d 208 (2012).
Order disqualifying counsel.
- Because the orders disqualifying appellant attorney from representing the other appellants were interlocutory, not collateral, but the procedures for appealing an interlocutory order were not followed, it was not currently within the appellate court's discretion to consider the disqualification of appellant attorney by direct appeal. Settendown Pub. Util., LLC v. Waterscape Util., LLC, 324 Ga. App. 652, 751 S.E.2d 463 (2013).
2. Certificates of Immediate Review
Interlocutory appeals placed on equal footing with appeals from final judgments.
- Provision in subsection (b) of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34) that . . . procedure following filing of notice of appeal shall be same as in appeal from final judgment, indicated legislative intent that, after filing notice of appeal, status quo was to be maintained just as it would be if appeal were from a final judgment, and mandated that, once supersedeas attached, interlocutory order shall have same procedural status and dignity as a final judgment; therefore, since Ga. L. 1966, p. 609, § 41 (see O.C.G.A. § 9-11-41(a)) would not permit plaintiff-appellee to dismiss plaintiff-appellee's case while final judgment in the plaintiff-appellee's favor was on appeal, thereby robbing the defendant-appellant of an opportunity to seek reversal of judgment; it would neither permit plaintiff-appellee to do so in an interlocutory context. Lawrence v. Whittle, 146 Ga. App. 686, 247 S.E.2d 212 (1978).
Trial judge has broad discretion.
- Trial judge in determining whether an otherwise interlocutory order might be reviewed prior to final judgment is given carte blanche authority. Lee v. Smith, 119 Ga. App. 808, 168 S.E.2d 880 (1969).
When trial judge leaves jurisdiction after rendering order.
- When the trial judge, after rendering the order, departs from the jurisdiction so as to make it impossible to request of the judge a timely certificate for immediate appellate review, request, if timely, may be presented for grant or denial to another judge of same court having authority to hear emergency matters. Tingle v. Harvill, 125 Ga. App. 312, 187 S.E.2d 536 (1972); Freemon v. Dubroca, 177 Ga. App. 745, 341 S.E.2d 276 (1986).
Certificate of appealability is not itself a judgment in the cause, but is simply an order allowing judgment or order already entered to be appealed and reviewed. G.M.J. v. State, 130 Ga. App. 420, 203 S.E.2d 608 (1973).
Certificate of immediate review to interlocutory order must be followed by petition to appellate court. When this is not done, an appeal is premature and must be dismissed. Home Mart Bldg. Centers, Inc. v. Wallace, 139 Ga. App. 49, 228 S.E.2d 22 (1976).
When a party does not file an application for interlocutory appeal within ten days of the granting of the trial court's certificate for immediate review, the appeal is premature and must be dismissed. Graves v. Dean, 166 Ga. App. 186, 303 S.E.2d 751 (1983).
When the defendant obtained a certificate of immediate review but failed to apply to the court for permission to file an interlocutory appeal in accordance with O.C.G.A. § 5-6-34, the appeal was dismissed for lack of jurisdiction. State v. Crapse, 173 Ga. App. 100, 325 S.E.2d 620 (1984), but see Hubbard v. State, 176 Ga. App. 622, 337 S.E.2d 60 (1985).
Because it is important to have the defendant's double jeopardy claim adjudicated before trial in order to prevent harm to the defendant, the appellate court has jurisdiction to hear an appeal from the denial of the defendant's O.C.G.A. § 17-7-170 motion even though the defendant did not apply for permission to file an interlocutory appeal. Hubbard v. State, 176 Ga. App. 622, 337 S.E.2d 60 (1985).
Because the trial court did not issue a certificate of immediate review, the Georgia Supreme Court was without jurisdiction to consider the appellant's application for interlocutory appeal; thus, the application required dismissal. Duke v. State, 306 Ga. 171, 829 S.E.2d 348 (2019).
Party must obtain certificate.
- Georgia Supreme Court overruled Waldrip v. Head, 272 Ga. 572 (2000) to the extent that case permits the court to disregard the requirement set forth in O.C.G.A. § 5-6-34(b) that the party must obtain a certificate of immediate review from the trial court before pursuing an interlocutory appeal not otherwise authorized by O.C.G.A. § 5-6-34(a). Duke v. State, 306 Ga. 171, 829 S.E.2d 348 (2019).
Untimely, invalid applications for immediate review cannot be revived.
- Amendments offered as applications for immediate review and tendered approximately three months after expiration of time for filing such applications under subsection (b) do not serve to revive invalid appeals. Summer Tree Club Apts. Assocs. v. Graves Constr. Co., 140 Ga. App. 214, 230 S.E.2d 503 (1976).
Unless certificate is filed within time required, party seeking review must await final judgment.
- Certificate for immediate review must be filed with clerk of trial court within ten-day period in order to secure immediate review of nonfinal judgment; if this is not done, party seeking review will merely have to await final judgment in case before he can obtain review of interlocutory judgments entered in trial court. Turner v. Harper, 231 Ga. 175, 200 S.E.2d 748 (1973).
Late filed exhibits.
- Court denied as moot an appellee's motion to exclude consideration of documents the appellant filed after the trial court's order but before the appellant filed the notice of appeal because some of the documents were already in the record. Brooks v. Lopez, 350 Ga. App. 390, 829 S.E.2d 470 (2019).
Erroneous certification under
§ 9-11-54(b) may be treated as certification pursuant to this section. - When the trial court erroneously enters certification pursuant to Ga. L. 1976, p. 1047, § 2 (see O.C.G.A. § 9-11-54(b)), the appellate court may treat certification as one entered pursuant to subsection (b) of former Code 1933, § 6-701 (see O.C.G.A. § 5-6-34). However, because in cases in which erroneous certification under Ga. L. 1976, p. 1047, § 2 § 9-11-54(b)) was treated as certification pursuant to former Code 1933, § 6-701, the cause will have been treated by the trial court and parties as an appeal from a final judgment, time limitations imposed by subsection (b) on parties and this court were not applicable. Georgia Farm Bureau Mut. Ins. Co. v. Wall, 242 Ga. 176, 249 S.E.2d 588 (1978).
Certificate stating review "may" be had.
- Certificate ordering new trial, signed by trial judge, stating that immediate review "may" be had rather than "should" be had is in substantial compliance with the law and is not ground for dismissal. State Hwy. Dep't v. Lord, 123 Ga. App. 178, 179 S.E.2d 780 (1971).
Order allowing 30 days to appeal before case shall proceed.
- Court order denying motion which states that the movant will be allowed 30 days in which to appeal the order and if no appeal is made within that period case shall proceed, is not certification required by subsection (b) in that there has been no certification of importance of immediate review. Alexander v. State, 122 Ga. App. 331, 176 S.E.2d 633 (1970).
Where ten-day period expires on Sunday and Monday is a holiday.
- When ten-day limitation for securing certificate certifying denial of summary judgment for review expired on Sunday, October 11 and Monday, October 12, was Columbus Day, a legal holiday, a certificate for review obtained on October 13 was obtained within time. Allstate Ins. Co. v. Cody, 123 Ga. App. 265, 180 S.E.2d 596 (1971).
Denial of superfluous application does not block available avenues of appeal which caused application to be superfluous. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).
Appeal from decision of reviewing court regarding administrative decision.
- Under O.C.G.A. § 50-13-20) the Court of Appeals has jurisdiction only of a final judgment of a reviewing court regarding an administrative decision. O.C.G.A. § 5-6-34, providing for interlocutory appeal upon certificate of immediate review, does not govern. Hardison v. Booth, 160 Ga. App. 69, 286 S.E.2d 60 (1981).
Certification for review by one judge of another's decision.
- When one judge's order dismissing the defendant's motion to suppress evidence was not issued pursuant to notice and opportunity for hearing and when the trial judge (another judge) in effect reasserted such dismissal before certifying it for review, the Court of Appeals has jurisdiction to consider the order on appeal because there is no jurisdictional defect in the manner in which the appeal reached that court. Caudill v. State, 157 Ga. App. 415, 277 S.E.2d 773 (1981).
Certificate required.
- When the defendant's motion to dismiss the defendant's indictment for cocaine possession for failure to comply with O.C.G.A. § 42-6-20, Art. III(a), was denied by the trial court, but no certificate was contained in the record, this issue was one for which a certificate of immediate review and petition for interlocutory appeal were required so the appeal must be dismissed under O.C.G.A. § 5-6-34(b); this is not a question involving speedy trial rights under O.C.G.A. § 17-7-170, which would be directly appealable. Miller v. State, 180 Ga. App. 710, 350 S.E.2d 313 (1986).
In a creditor's fraudulent transfer action, the trial court had authority to enter dismissal orders after the creditor had filed a notice of appeal because the creditor failed to obtain a certificate of immediate review as required for interlocutory review in O.C.G.A. § 5-6-34(b), but later orders setting the dismissals aside were void as outside the term of court in which the orders had been entered. The creditor's appeal from the earlier orders was time-barred under O.C.G.A. § 5-6-38(a). Brock v. RES-GA SCL, LLC, 340 Ga. App. 194, 796 S.E.2d 914 (2017).
Order denying the school district's request to order the city to release to the school district the tax funds the city was holding pursuant to a prior court order was not appealable because the school district did not obtain a certificate of immediate review from the trial court. City of Dublin Sch. Dist. v. MMT Holdings, LLC, 351 Ga. App. 112, 830 S.E.2d 487 (2019).
Denial of misnamed motion followed by certificate.
- When the trial court's denial of the appellant's misnamed motion seeking to dismiss a third-party intervenor was timely followed by a certificate of immediate review, and the appellant timely sought appeal of it "pursuant to O.C.G.A. § 5-6-34(b)," jurisdiction was properly lodged in the Court of Appeals by interlocutory appeal. Brooks v. Carson, 194 Ga. App. 365, 390 S.E.2d 859 (1990), overruled on other grounds, Mayor of City of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 441 S.E.2d 63 (1994).
Substantial compliance with requirements adequate.
- Certificate which substantially complied with the language of subsection (b) was sufficient to allow appeal. Clayton v. Edwards, 225 Ga. App. 141, 483 S.E.2d 111 (1997).
OPINIONS OF THE ATTORNEY GENERALAppeals from a municipal court conviction of a traffic offense may lie in the Court of Appeals or in the superior court depending on the status of the municipal court and the nature of the offense. 1985 Op. Att'y Gen. No. U85-18.
RESEARCH REFERENCES
Am. Jur. 2d.
- 4 Am. Jur. 2d, Appellate Review, § 1 et seq.
2 Am. Jur. Pleading and Practice Forms, Appeal and Error, § 2.
ALR.
- Will questions which might have been, but were not, raised on prior appeal or error, be considered on subsequent appeal or error, 1 A.L.R. 725.
Right to appeal from order releasing one in extradition proceedings, 5 A.L.R. 1156.
Judgment on claim as bar to action to recover amount of payment which was not litigated in previous action, 13 A.L.R. 1151.
Appeal as affecting time allowed by judgment or order appealed from for the performance of a condition affecting a substantive right or obligation, 28 A.L.R. 1029.
Coram nobis on ground of newly discovered evidence, 33 A.L.R. 84.
First decision of intermediate court as law of the case on appeal to court of last resort from subsequent decision, 41 A.L.R. 1078, 118 A.L.R. 1286.
Conduct of party in court room tending improperly to influence jury as ground for reversal or new trial, 57 A.L.R. 62.
Abatement of action which does not survive, by death of party pending appeal or writ of error, 62 A.L.R. 1048.
Judgment or order dismissing action as against one defendant as subject of appeal or error before disposition of case as against codefendant, 80 A.L.R. 1186; 114 A.L.R. 759.
Power of appellate court to reconsider its decision after mandate has issued, 84 A.L.R. 579.
Criticism in judge's charge to jury of argument of defendant's counsel in criminal case, 86 A.L.R. 899.
Who entitled to appeal from decree admitting will to probate or denying probate, 88 A.L.R. 1158.
Right of bankrupt after adjudication to take or prosecute appeal from or otherwise review a judgment against him, 92 A.L.R. 291.
Change of law after decision of lower court as affecting decision on appeal or error, 111 A.L.R. 1317; 151 A.L.R. 987.
Judgment or order dismissing action as against one defendant as subject of appeal or error before disposition of case as against codefendant, 114 A.L.R. 759.
Reception of incompetent evidence in criminal case tried to court without jury as ground of reversal, 116 A.L.R. 558.
First decision of intermediate court as law of case on appeal to court of last resort from subsequent decision, 118 A.L.R. 1286.
Remedy of one convicted of crime while insane, 121 A.L.R. 267.
Res judicata as regards decisions or awards under workmen's compensation acts, 122 A.L.R. 550.
Ruling against defendant's attack upon indictment or information as subject to review by higher court, before trial, 133 A.L.R. 934.
Application for or acceptance of executive clemency as affecting appellate proceedings or motion for new trial, 138 A.L.R. 1162.
Adequacy of remedy by appeal in criminal cases to preclude prohibition sought on the ground of lack or loss of jurisdiction, 141 A.L.R. 1262.
Finality, for purposes of appeal, of judgment in federal court which disposes of plaintiff's claim, but not of defendant's counterclaim, or vice versa, 147 A.L.R. 583.
Order upon application for suppression in criminal case of evidence wrongly seized by government as appealable, 156 A.L.R. 1207.
Effect of, and remedies for, exclusion of eligible class of persons from jury list in civil case, 166 A.L.R. 1422.
Order granting or denying revival of action after death of party as final order subject to appeal, 167 A.L.R. 261.
Order granting or refusing motion for temporary alimony or suit money in divorce action as appealable, 167 A.L.R. 360.
Appealability of ruling or demurrer to plea, answer, or reply, 171 A.L.R. 1433.
Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422.
Finality of judgment or decree for purposes of review as affected by provision for future accounting, 3 A.L.R.2d 342.
Questions or legal theories affecting trust estates as subject to consideration on appeal though not raised below, 11 A.L.R.2d 317.
Appealability of order granting or denying right of intervention, 15 A.L.R.2d 336.
Appealability of order with respect to motion for joinder of additional parties, 16 A.L.R.2d 1023.
Appealability of federal district court order denying motion to remand cause to state court, 21 A.L.R.2d 760.
Decree granting or refusing injunction as res judicata in action for damages in relation to matter concerning which injunction was asked in first suit, 26 A.L.R.2d 446.
Appealability of order overruling or sustaining motion to quash or set aside service of process, 30 A.L.R.2d 287.
What constitutes final judgment within provision or rule limiting application for new trial to specified period thereafter, 34 A.L.R.2d 1181.
Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.
Right of appeal from order on application for removal of personal representative, guardian, or trustee, 37 A.L.R.2d 751.
Judicial relief other than by dissolution or receivership in cases of intracorporate deadlock, 47 A.L.R.2d 365.
Appealability of order denying motion for directed verdict or for judgment notwithstanding the verdict where movant has been granted a new trial, 57 A.L.R.2d 1198.
Ruling on motion to quash execution as ground of appeal or writ of error, 59 A.L.R.2d 692.
Contact or communication between juror and outsider during trial of civil case as ground for mistrial, new trial, or reversal, 64 A.L.R.2d 158.
Participation in, acceptance of, or submission to new trial as precluding appellate review of order granting it or of issue determined in first trial, 67 A.L.R.2d 191.
Appealability of order appointing, or refusing to appoint, receiver, 72 A.L.R.2d 1009.
Appealability of order vacating, or refusing to vacate, approval of settlement of infant's tort claim, 77 A.L.R.2d 801.
Appealability of order relating to forfeiture of bail, 78 A.L.R.2d 1180.
Appealability of order relating to transfer, on jurisdictional grounds, of cause from one state court to another, 78 A.L.R.2d 1204.
Reviewability, on appeal from final judgment, of interlocutory order, as affected by fact that order was separately appealable, 79 A.L.R.2d 1352.
Retroactive effect on appeal from judgment previously entered of statute shortening time allowed for appellate review, 81 A.L.R.2d 417.
Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 88 A.L.R.2d 1275, 59 A.L.R.5th 1.
Appealability of order entered in connection with pretrial conference, 95 A.L.R.2d 1361.
Appealability of order arresting judgment in criminal case, 98 A.L.R.2d 737.
Judgment subject to appeal as entitled to full faith and credit, 2 A.L.R.3d 1384.
Appealability of order setting aside, or refusing to set aside, default judgment, 8 A.L.R.3d 1272.
Appealability of order directing payment of money into court, 15 A.L.R.3d 568.
Reviewability of order denying motion for summary judgment, 15 A.L.R.3d 899.
Appealability of orders or rulings, prior to final judgment in criminal case, as to accused's mental competency, 16 A.L.R.3d 714.
Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400.
Appealability of order granting, extending, or refusing to dissolve temporary restraining order, 19 A.L.R.3d 403.
Appealability of order refusing to grant or dissolving temporary restraining order, 19 A.L.R.3d 459.
Appealability of acquittal from or dismissal of charge of contempt of court, 24 A.L.R.3d 650.
Appealability of contempt adjudication or conviction, 33 A.L.R.3d 448.
Development, since Hickman v. Taylor, of attorney's "work product" doctrine, 35 A.L.R.3d 412; 27 A.L.R.4th 568.
Appealability of order denying right to proceed in form of class action - state cases, 54 A.L.R.3d 595.
Appealability of state court order granting or denying consolidation, severance, or separate trials, 77 A.L.R.3d 1082.
Appealability of order dismissing counterclaim, 86 A.L.R.3d 944.
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.
Appealability of state court's order granting or denying motion to disqualify attorney, 5 A.L.R.4th 1251.
Right of municipal corporation to review of unfavorable decision in action or prosecution for violation of ordinance - modern status, 11 A.L.R.4th 399.
Relief other than by dissolution in cases of intracorporate deadlock or dissension, 34 A.L.R.4th 13.
Appealability of order suspending imposition or execution of sentence, 51 A.L.R.4th 939.
Appealability of interlocutory or pendente lite order for temporary child custody, 82 A.L.R.5th 389.