(Laws 1845, Cobb's 1851 Digest, pp. 449, 453; Code 1863, § 4171; Code 1868, § 4203; Ga. L. 1870, p. 416, § 1; Code 1873, § 4263; Ga. L. 1880-81, p. 120, § 1; Code 1882, § 4263; Civil Code 1895, § 5552; Civil Code 1910, § 6165; Ga. L. 1917, p. 63, § 1; Code 1933, § 6-1002; Ga. L. 1965, p. 18, § 8; Ga. L. 1994, p. 346, § 1; Ga. L. 2000, p. 228, § 2; Ga. L. 2001, p. 4, § 5; Ga. L. 2004, p. 980, § 1; Ga. L. 2005, p. 60, § 5/HB 95.)
Cross references.- Supersedeas, Rules of the Supreme Court of the State of Georgia, Rule 12.
Filing notice of appeal and cross appeal, Rules of the Supreme Court of the State of Georgia, Rule 38.
Supersedeas, Rules of the Court of Appeals of the State of Georgia, Rule 50.
Editor's notes.- Ga. L. 2000, p. 228, § 1, not codified by the General Assembly, provides: "The Act shall be known and may be cited as the 'Civil Litigation Improvement Act of 2000.' "
Ga. L. 2004, p. 980, § 4, not codified by the General Assembly, provides that the amendment by that Act shall apply to cases pending on or filed on or after May 17, 2004.
Law reviews.- For article, "The Appellate Procedure Act of 1965," see 1 Ga. St. B.J. 451 (1965). For article, "1966 Amendments to the Appellate Procedure Act of 1965," see 2 Ga. St. B.J. 433 (1966). For article surveying appellate practice and procedure, see 34 Mercer L. Rev. 3 (1982). For annual survey of appellate practice and procedure, see 40 Mercer L. Rev. 51 (1988). For note on 2000 amendment of this Code section, see 17 Ga. St. U.L. Rev. 37 (2000).
JUDICIAL DECISIONSANALYSIS
General Consideration
Payment of costs in trial court is prerequisite.
- In civil action, filing of notice of appeal does not serve as supersedeas until all costs in the trial court have been paid. Chappelaer v. General G.M.C. Trucks, Inc., 130 Ga. App. 664, 204 S.E.2d 326 (1974); Penny Profit Foods, Inc. v. McMullen, 214 Ga. App. 740, 448 S.E.2d 787 (1994).
In a civil action, the filing of a notice of appeal does not serve as a supersedeas until all costs in the trial have been paid; when all costs are paid, the trial court loses jurisdiction over the case while the appeal is pending. Duncan v. Ball, 172 Ga. App. 750, 324 S.E.2d 477 (1984); Rockdale Awning & Iron Co. v. Kerbow, 210 Ga. App. 119, 435 S.E.2d 619 (1993).
Filing of notice of appeal did not serve as a supersedeas because the appellant failed to pay all costs in the trial court and all costs in the appeals preparation. Lott v. Arrington & Hollowell, P.C., 258 Ga. App. 51, 572 S.E.2d 664 (2002).
Notice of appeal did not serve as a supersedeas when all costs had not been paid, and although the appellate courts do not condone a party's failure to respond to the motion to dismiss in the first instance, the trial court was not deprived of jurisdiction to consider and rule on that party's motion to set aside the dismissal. Lunsford v. DeKalb Med. Ctr., Inc., 263 Ga. App. 394, 587 S.E.2d 859 (2003).
Pursuant to O.C.G.A. § 5-6-46, a notice of appeal, with payment of costs, serves as a supersedeas of the judgment appealed and deprives the trial court of jurisdiction over matters affecting such judgment. In the Interest of W.P.B., 269 Ga. App. 101, 603 S.E.2d 454 (2004).
Construction with O.C.G.A. §§ 5-6-34 and 5-6-35. - 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).
Hearing not required.
- Trial court was not required to conduct an oral hearing before granting a motion to require a supersedeas bond under the statute. Rapps v. Cooke, 234 Ga. App. 131, 505 S.E.2d 566 (1998).
Appellant's right to initiate posting of bond.
- Subsection (a) of O.C.G.A. § 5-6-46 provides that the appellee shall be entitled to the posting of a supersedeas bond upon the appellee's motion. The statute is silent as to whether the appellant can initiate the posting of bond, but no impediment appears which would legally prevent the appellant from doing so if the appellant wishes. Bank S. v. Roswell Jeep Eagle, Inc., 200 Ga. App. 489, 408 S.E.2d 503 (1991).
Judgment determining disposition of property.
- In an action by mortgagors against mortgagee and foreclosure sale purchaser to challenge the lawfulness of a nonjudicial foreclosure sale, a supersedeas bond was authorized even though no money judgment was entered against the mortgagors. Cloud v. Georgia Cent. Credit Union, 214 Ga. App. 594, 448 S.E.2d 913 (1994).
Borrower failed to show that the trial court abused the court's discretion in setting a $300,000 supersedeas bond because the case fell within the disposition-of-property provision of O.C.G.A. § 5-6-46(a); the bank argued that interest continued to accrue on the note securing the loan pending appeal, that taxes on the property were coming due, and that the appeal delayed the bank from pursuing the bank's foreclosure, confirmation, and action for deficiency judgment. Duke Galish, LLC v. SouthCrest Bank, 314 Ga. App. 801, 726 S.E.2d 54 (2012).
Appellant proceeding in forma pauperis to be reimbursed for costs.
- In the absence of a traverse to the appellant's affidavit, it is error to deny the appellant's motion to proceed in forma pauperis. When such a denial does occur, the appellant must be reimbursed for all costs actually paid by the appellant because of the requirements of subsection (a) of O.C.G.A. § 5-6-43. However, the appellant is not entitled to be reimbursed for attorney's fees incurred during the appellant's appeal. Heath v. McGuire, 167 Ga. App. 489, 306 S.E.2d 741 (1983) (decided prior to 1982 amendment of § 9-15-2).
Uniform Superior Court Rule 6.2 does not apply to motions for supersedeas bonds. Cloud v. Georgia Cent. Credit Union, 214 Ga. App. 594, 448 S.E.2d 913 (1994); Rapps v. Cooke, 234 Ga. App. 131, 505 S.E.2d 566 (1998).
No jurisdiction to order interim special master fees.
- Trial court erred in ordering a property owner to immediately pay the special master fees in a quiet title action as the ultimate responsibility for the fees of the special master was directly related to the resolution of the quiet title action; the trial court lacked jurisdiction to order payment of interim fees to the special master. Davis v. Harpagon Co., LLC, 281 Ga. 250, 637 S.E.2d 1 (2006).
No jurisdiction to vacate default judgment.
- In an unpaid wages case, a trial court lacked jurisdiction under O.C.G.A. § 5-6-46 to grant a former employer's second motion to vacate a default judgment as the employer's petition for certiorari as to the denial of the first motion to set aside was still pending when the order granting the second motion was entered. Guthrie v. Wickes, 295 Ga. App. 892, 673 S.E.2d 523 (2009).
Defendants in a RICO action failed to exercise the defendants' right to open a prematurely entered default judgment as a matter of right by filing an answer and costs within the 15-day period provided in O.C.G.A. § 9-11-55(a); instead, the defendants filed an appeal. Although the trial court was thereby divested of jurisdiction to alter or amend the judgment, the defendants still could have opened the default as a matter of right by filing an answer and paying costs. Florez v. State, 311 Ga. App. 378, 715 S.E.2d 782 (2011), cert. dismissed, 2012 Ga. LEXIS 64 (Ga. 2012).
No jurisdiction after appeal filed.
- Because a neighbor filed a notice of appeal, the trial court lacked jurisdiction under O.C.G.A. § 5-6-46(a) to supplement, amend, alter, or modify an order purporting to dismiss two of the neighbor's complaints with prejudice. McLeod v. Clements, 310 Ga. App. 235, 712 S.E.2d 627 (2011).
Pursuant to O.C.G.A. § 5-6-46(a), the trial court was without jurisdiction to enter final judgment orders in favor of a bank because the orders were entered after notices of appeal as the summary judgment orders had already been filed. Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 724 S.E.2d 33 (2012).
Child custody proceedings.
- Trial court did not exceed the court's authority in denying a former husband's motion for supersedeas to enforce an emergency order limiting a former wife's visitation and requiring the visitation to be supervised pending appeal because in the court's order resolving the supersedeas issue the trial court expressly excepted the custody and visitation provisions of the court's prior order from any supersedeas effect; the trial court found that the allegations upon which the emergency order was based were not supported by any credible evidence. Blackmore v. Blackmore, 311 Ga. App. 885, 717 S.E.2d 504 (2011).
Cited in Swindle v. Swindle, 221 Ga. 760, 147 S.E.2d 307 (1966); Hartman v. Brady, 117 Ga. App. 828, 162 S.E.2d 246 (1968); Spell v. State, 225 Ga. 705, 171 S.E.2d 285 (1969); Jones v. Sheffield, 122 Ga. App. 574, 178 S.E.2d 299 (1970); Taylor v. Kohlmeyer & Co., 123 Ga. App. 493, 181 S.E.2d 496 (1971); Leonard Bros. Trucking Co. v. Crymes Transps., Inc., 124 Ga. App. 341, 183 S.E.2d 773 (1971); Byers v. Lieberman, 126 Ga. App. 582, 191 S.E.2d 470 (1972); Carter v. Burson, 229 Ga. 748, 194 S.E.2d 472 (1972); Allied Prods., Inc. v. Peterson, 233 Ga. 266, 211 S.E.2d 123 (1974); Turner v. Harper, 233 Ga. 483, 211 S.E.2d 742 (1975); McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975); Lenny v. Lenny, 235 Ga. 358, 220 S.E.2d 1 (1975); North Peachtree I-285 Properties, Ltd. v. Hicks, 136 Ga. App. 426, 221 S.E.2d 607 (1975); Pilgrim v. Brookfield West, Inc., 136 Ga. App. 619, 222 S.E.2d 137 (1975); Samples v. Greene, 138 Ga. App. 823, 227 S.E.2d 456 (1976); Roper v. Motors Ins. Corp., 139 Ga. App. 788, 229 S.E.2d 481 (1976); Billas v. Dwyer, 140 Ga. App. 774, 232 S.E.2d 102 (1976); Anthony v. Anthony, 240 Ga. 155, 240 S.E.2d 45 (1977); Crymes v. Crymes, 240 Ga. 721, 242 S.E.2d 30 (1978); Mitchell v. Excelsior Sales & Imports, Inc., 243 Ga. 813, 256 S.E.2d 785 (1979); Salim v. Salim, 244 Ga. 513, 260 S.E.2d 894 (1979); Yield, Inc. v. City of Atlanta, 152 Ga. App. 174, 262 S.E.2d 483 (1979); Hawn v. Chastain, 154 Ga. App. 609, 269 S.E.2d 50 (1980); State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980); White v. Phillips, 88 F.R.D. 263 (N.D. Ga. 1980); Bhatia v. West Cash & Carry Bldg. Materials of Savannah, Inc., 157 Ga. App. 145, 276 S.E.2d 656 (1981); Henson & Henson, P.C. v. Myszka, 160 Ga. App. 135, 286 S.E.2d 456 (1981); Landmark First Nat'l Bank v. Schwall & Heuett, 161 Ga. App. 356, 288 S.E.2d 331 (1982); Tidwell Homes, Inc. v. Sharif, 164 Ga. App. 284, 297 S.E.2d 67 (1982); Georgia Farm Bldgs., Inc. v. Willard, 165 Ga. App. 325, 299 S.E.2d 181 (1983); J.M. Clayton Co. v. Martin, 177 Ga. App. 228, 339 S.E.2d 280 (1985); Mijajlovic v. State, 179 Ga. App. 506, 347 S.E.2d 325 (1986); Davis v. Glaze, 182 Ga. App. 18, 354 S.E.2d 845 (1987); State v. Vurgess, 182 Ga. App. 544, 356 S.E.2d 273 (1987); Wehunt v. ITT Bus. Communications Corp., 183 Ga. App. 560, 359 S.E.2d 383 (1987); Bullard v. Carreras, 183 Ga. App. 539, 359 S.E.2d 429 (1987); Atlanta Propeller Serv., Inc. v. Hoffman GMBH & Co., 191 Ga. App. 529, 382 S.E.2d 109 (1989); Abrahamsen v. McDonald's Corp., 197 Ga. App. 624, 398 S.E.2d 861 (1990); Spicewood, Inc. v. Dykes Paving & Constr. Co., 199 Ga. App. 165, 404 S.E.2d 305 (1991); Fulton Paper Co. v. Reeves, 212 Ga. App. 341, 441 S.E.2d 881 (1994); Nest Inv., Inc. v. Tzavaras, 221 Ga. App. 282, 471 S.E.2d 223 (1996); Rolleston v. Cherry, 237 Ga. App. 733, 521 S.E.2d 1 (1999); ARA Health Servs. v. Stitt, 250 Ga. App. 420, 551 S.E.2d 793 (2001); Loiten v. Loiten, 288 Ga. App. 638, 655 S.E.2d 265 (2007); Robinson v. Robinson, 287 Ga. 842, 700 S.E.2d 548 (2010); Avren v. Garten, 289 Ga. 186, 710 S.E.2d 130 (2011); McRae v. Hogan, 317 Ga. App. 813, 732 S.E.2d 853 (2012); Sherman v. Atlanta Indep. Sch. Sys., 293 Ga. 268, 744 S.E.2d 26 (2013); Hal Wright Esq., P.C. v. Gentemann, 327 Ga. App. 650, 760 S.E.2d 654 (2014); Rivera v. Washington, 298 Ga. 770, 784 S.E.2d 775 (2016); Islamkhan v. Khan, 299 Ga. 548, 787 S.E.2d 731 (2016); Brock v. RES-GA SCL, LLC, 340 Ga. App. 194, 796 S.E.2d 914 (2017); Pure Hospitality Solutions, Inc. v. Canouse, 347 Ga. App. 592, 820 S.E.2d 434 (2018).
Applicability of Automatic Supersedeas Provision
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).
Automatic supersedeas provision applies to order to vacate judgment consented to by the plaintiff. Phillips Broadcast Equip. Corp. v. Production 70'S, Inc., 133 Ga. App. 765, 213 S.E.2d 35 (1975).
Appeal to Supreme Court of contempt order issued by trial court acts as supersedeas pending appeal of order, and for trial court to hold appellant in contempt of the contempt order is error. Berman v. Berman, 231 Ga. 727, 204 S.E.2d 125 (1974).
Because the supreme court maintained jurisdiction over the June 27th contempt order finding that the husband failed to comply with the terms of the parties' divorce decree and the supersedeas of that order remained in effect until October 18, 2012, the day that the remittitur was filed in the trial court, the trial court lacked jurisdiction on October 16, 2012, to enter an order holding the husband in contempt. Massey v. Massey, 294 Ga. 163, 751 S.E.2d 330 (2013).
Upon filing notice of appeal, supersedeas is automatic in all civil cases, except injunction cases. Simpson v. Simpson, 233 Ga. 17, 209 S.E.2d 611 (1974).
Filing of notice of appeal in injunction cases does not serve as supersedeas. Citizens to Save Paulding County v. City of Atlanta, 236 Ga. 125, 223 S.E.2d 101 (1976).
Injunction cases are exempt from automatic supersedeas.
- It was the intention of the legislature in enacting Ga. L. 1972, p. 689, § 9 (see O.C.G.A. § § 9-11-62) to exempt injunction cases from automatic supersedeas provisions of former Code 1933, § 6-1002 (see O.C.G.A. § 5-6-46). Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); Davis v. Creative Land Dev. Corp., 230 Ga. 47, 195 S.E.2d 411 (1973).
Trial court had authority to hold a property owner in contempt for failure to comply with a court order that imposed a permanent restraining order in favor of the owner's neighbors, even though the order was on appeal, as there was no order by the court that stayed the judgment pending appeal, pursuant to O.C.G.A. § 9-11-62(a), which was an exception to the automatic supersedeas provisions of O.C.G.A. § 5-6-46. Knapp v. Cross, 279 Ga. App. 632, 632 S.E.2d 157 (2006).
Appeal from denial of injunction should not establish injunction independently.
- No appeal from order denying injunction should have effect of establishing an injunction independently of an order of court entered pursuant to provisions of Ga. L. 1967, p. 226, § 28 (see O.C.G.A. § 9-11-62(c)). Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970).
Appeal did not supersede court's authority to issue order.
- Bank's notice of appeal from denial of summary judgment in the bank's equitable action to reform a mortgage note did not supersede the trial court's authority to enter an order requiring mortgagors to pay mortgage payments into the court registry. Decatur Fed. Savs. & Loan v. Gibson, 268 Ga. 362, 489 S.E.2d 820 (1997).
Dismissal of an appeal in a probate matter was proper because the VA guardian's filing of a notice of appeal relating to the probate court's order dismissing the notice of appeal, did not divest the probate court of jurisdiction to complete the hearing and issue an order compelling the guardian to pay the value of the estate to the administrator of the estate; the record showed that the guardian did not pay the court costs associated with the dismissal order appeal until after the court entered the order that the guardian pay over the value of the estate. In re Estate of Robertson, 271 Ga. App. 785, 611 S.E.2d 680 (2005).
Probate court's order granting an executor's motion for payment of expenses of probate pursuant to O.C.G.A. § 53-5-26 was not prohibited by the supersedeas imposed by the filing of the initial notice of appeal because the order permitted the executor to have the estate pay expenses, including reasonable attorney's fees, incurred by the executor in the probate of the will and while acting in good faith, and it was neither based upon nor related to the carrying into effect the judgment on appeal. Simmons v. Harms, 287 Ga. 176, 695 S.E.2d 38 (2010).
Substitution on consent could not be challenged on appeal.
- Debtor could not challenge a judgment entered on remittitur by raising arguments regarding an assignee's payment of consideration for a judgment entered against the debtor, although the issue was not within the scope of the prior appeal, as the debtor had consented to the assignee's substitution into the action in place of the bank, as well as the assignment of the judgment to it. Martin v. Hamilton State Bank, 323 Ga. App. 185, 746 S.E.2d 750 (2013).
Effect of Supersedeas
General rule is that supersedeas suspends all further proceedings in the suit in which the judgment superseded is rendered, such as are based upon and relate to the carrying into effect of that judgment. Under this rule the supersedeas, during its pendency, prevents any steps to enforce or carry into effect the judgment, such as issuing an execution based thereon. International Images, Inc. v. Smith, 181 Ga. App. 543, 352 S.E.2d 846 (1987).
Notice of appeal serves as supersedeas from time of filing and does not act retroactively. Vowell v. Carmichael, 235 Ga. 387, 219 S.E.2d 732 (1975).
Effect of appeal on enforcement of judgment superseded.
- Notice of appeal deprives trial court of jurisdiction to proceed towards enforcement of judgment superseded. Tyree v. Jackson, 226 Ga. 642, 177 S.E.2d 159 (1970); Walker v. Walker, 239 Ga. 175, 236 S.E.2d 263 (1977).
When there is an appeal from a final judgment, such appeal deprives the trial court of jurisdiction to take further proceedings toward the enforcement of the judgment on appeal because subsection (a) of O.C.G.A. § 5-6-46 provides that in civil cases a notice of appeal from such final judgment serves as a supersedeas. Cohran v. Carlin, 160 Ga. App. 762, 288 S.E.2d 81 (1981), aff'd, 249 Ga. 510, 291 S.E.2d 538 (1982); Smiway, Inc. v. DOT, 178 Ga. App. 414, 343 S.E.2d 497 (1986).
Appeal in a separate action involving the tenant only did not affect the tenant's guarantors, nor a judgment entered solely against the guarantors. Winzer v. EHCA Dunwoody, LLC, 277 Ga. App. 710, 627 S.E.2d 426 (2006).
In a personal injury lawsuit, the pendency of the defendant's appeal from denial of the defendant's motion to set aside the default judgment acted as a supersedeas depriving the trial court of the jurisdiction to consider the defendant's subsequent extraordinary motion for new trial. Fred Jones Enters., LLC v. Williams, 331 Ga. App. 481, 771 S.E.2d 163 (2015).
Final contempt order against a spouse in a divorce proceeding was vacated because the trial court was without jurisdiction to enter a final contempt order while the spouse's direct appeal from the initial contempt order still was pending in the appellate court as the spouse triggered an automatic supersedeas of that order under O.C.G.A. § 5-6-46(a) when the appeal was filed. Rollins v. Rollins, 300 Ga. 485, 796 S.E.2d 721 (2017).
Modification of judgment.
- Supersedeas prevents trial judge from modifying judgment while the judgment is on appeal. Jackson v. Martin, 225 Ga. 170, 167 S.E.2d 135 (1969).
Automatic supersedeas deprives trial court of jurisdiction to modify or alter judgment pending appeal. Turner v. Harper, 233 Ga. 483, 211 S.E.2d 742 (1975).
Notice of appeal, with payment of costs, serves as supersedeas of judgment (unless supersedeas bond be required) and while on appeal, the trial court is without authority to modify such judgment. Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982); Bank S. v. Roswell Jeep Eagle, Inc., 200 Ga. App. 489, 408 S.E.2d 503 (1991).
Trial court erred in vacating an order which removed an executor as the executor of an estate and in entering a second order which again removed the executor; O.C.G.A. § 5-6-46(a) provided that the filing of a notice of appeal served as supersedeas when all costs in the trial court are paid, and this automatic supersedeas deprived the trial court of jurisdiction to modify or alter the judgment in the case pending the appeal, and because an appeal of the first order was pending when the second order was entered, any subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, was without effect. In re Estate of Zeigler, 259 Ga. App. 807, 578 S.E.2d 519 (2003).
Trial court correcting mistakes in judgment.
- While as a general proposition trial court has power to correct mistakes in judgments, notice of appeal operates as supersedeas and deprives the trial court of the power to affect judgment appeal, so that subsequent proceedings purporting to supplement, amend, alter, or modify the judgment, whether pursuant to statutory or inherent power, are without effect. Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139 (1979); Screven v. Drs. Gruskin & Lucas, 227 Ga. App. 756, 490 S.E.2d 422 (1997).
Trial court's modification of orders and jury trial were nullity.
- In a title insurance case, the trial court erred in modifying the court's summary judgment orders and proceeding to trial after the insurer filed a notice of appeal from the original summary judgment order. Under O.C.G.A. § 5-6-46(a), the insurer's notice of appeal deprived the trial court of jurisdiction, and the subsequent orders, trial, and jury verdict were a nullity. Lawyers Title Ins. Corp. v. Griffin, 302 Ga. App. 726, 691 S.E.2d 633 (2010).
Jurisdiction concerning temporary alimony and attorney fees.
- When former husband appeals divorce and alimony judgment and former wife petitions trial court for additional attorney fees prior to entry of remittitur, the trial court has authority to award attorney fees for the wife's defense of husband's appeal. By filing notice of appeal, the husband suspends final judgment and reinvests trial court with jurisdiction as to temporary alimony, including attorney fees even without reservation of jurisdiction. Staten v. Staten, 242 Ga. 399, 249 S.E.2d 81 (1978).
Discovery may continue as to matters pending in trial courts notwithstanding grant and appeal of summary judgments as to counterclaims, cross-claims and third party complaints or grant and appeal of partial summary judgments. Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982).
Trial court may try case.
- It is not error for trial court to try case while overruling of the defendants' motions to dismiss is on appeal. Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982).
While trial judge, after certifying bill of exceptions, loses jurisdiction of every issue presented therein, the case is still pending in the trial court, and the judge may conduct interlocutory matters, allow pleadings, and proceed with trial of case, subject to peril that any decision reached which conflicts with decision of appellate court when rendered will thereby be made nugatory. Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982).
Plaintiff's supersedeas protection divested allowing jurisdiction in trial court.
- Although the filing of a mortgagor's notice of appeal from an order granting a writ of possession over foreclosed property to the mortgagee should have operated as a supersedeas, pursuant to O.C.G.A. § 5-6-46, upon either the payment of all costs in the trial court or an affidavit of indigency, when the mortgagor failed to pay the costs and the mortgagor's affidavit of indigency was found to be either frivolous or a fabrication, the mortgagor's supersedeas protection was divested; accordingly, the trial court still retained jurisdiction over the matter. Hurt v. Norwest Mortg., Inc., 260 Ga. App. 651, 580 S.E.2d 580 (2003).
Supersedeas Bond
Supersedeas bond is permissible as means of assuring compliance with order of court. Bull v. Bull, 243 Ga. 72, 252 S.E.2d 494 (1979).
Authority to require bond.
- Trial court did not err in requiring a supersedeas bond because O.C.G.A. § 5-6-46(a) authorizes a court to rule on such motions, even though filed after the notice of appeal is filed and after the appeal is docketed in the appellate court. Ruffin v. Banks, 249 Ga. App. 297, 548 S.E.2d 61 (2001), overruled on other grounds, Kent v. Kent, 289 Ga. 821, 716 S.E.2d 212 (2011).
Trial court has no discretion under O.C.G.A. § 5-6-46 to refuse to require a supersedeas bond posted for the benefit of an appellee who seeks security for a money judgment, nor to do so without a hearing. Barngrover v. Hins, 289 Ga. App. 410, 657 S.E.2d 14 (2008).
Taxpayer's action challenging the validity and implementation of a special purpose local option sales tax (SPLOST) resolution passed by a county was a public lawsuit and was not meritorious; therefore, the trial court did not err in requiring the taxpayer to post a $2.1 million appeal bond under O.C.G.A. § 50-15-2. Mattox v. Franklin County, 316 Ga. App. 181, 728 S.E.2d 813 (2012).
Order requiring supersedeas bond does not operate as condition precedent to transmittal of appeal.
- Requiring supersedeas bond on motion of appellee to trial court is intended to prevent notice of appeal from serving as supersedeas, and does not operate as a condition precedent to the appellant's right to have the appeal transmitted to the appellate court for review. In absence of such bond as may be required by appropriate court, appellee is free to enforce judgment at the appellee's peril pending decision on appeal. DeFee v. Williams, 114 Ga. App. 571, 151 S.E.2d 923 (1966).
Orders requiring supersedeas bonds not final.
- Since there were matters still pending 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).
When final judgment was entered against the issuer based on a supersedeas bond, and the judgment was not challenged or otherwise modified, vacated, or set aside, the issuer could not go behind the judgment, as a defendant in fieri facias, and attack the validity of the bond. Riverdale Collision, Inc. v. Osborne Bonding & Sur. Co., 220 Ga. App. 611, 469 S.E.2d 823 (1996).
Timely motion and order thereon give trial court jurisdiction of subject matter of supersedeas bonds. Hughes v. Star Bonding Co., 137 Ga. App. 661, 224 S.E.2d 863 (1976).
Effect of noncompliance with order to post supersedeas bond.
- Failure to comply with order to post supersedeas bond has sole effect of removing any supersedeas features of appeal, and leaves appellee at liberty, if the appellee chooses to do so, to make whatever levy of execution or other action may be available to collect the appellee's debt, always remembering that the appellee does so at the appellee's peril if judgment is reversed on appeal. Hubbard v. Farmers Bank, 153 Ga. App. 497, 265 S.E.2d 845 (1980).
Failure of appealing party to file supersedeas bond simply means that judgment of trial court may be enforced and is no ground for dismissing appeal. Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980).
Failure to post bond by time set may be corrected.
- It may happen that an appellant fails to post proper bond by time set in order, but the appellant may correct this default as a matter of right provided case has not been docketed in appellate court. Hughes v. Star Bonding Co., 137 Ga. App. 661, 224 S.E.2d 863 (1976).
Construciton of subsection (c).
- First sentence of subsection (b) (now subsection (c)) means that when proper motion for supersedeas is filed in the trial court, prior to docketing of case in the appellate court, the trial court may properly set time for appellant to present proper supersedeas bond, and bond so filed is adequate. Further, if the bond is not filed or is inadequately filed within time specified, the appellant is not entirely cut off from right to file it but the appellant still may file proper bond as a matter of right if case has not yet been docketed on appeal. Hughes v. Star Bonding Co., 137 Ga. App. 661, 224 S.E.2d 863 (1976).
Court's judgment as to party's ability to pay costs or post bond is final. Hyman v. Leathers, 168 Ga. App. 112, 308 S.E.2d 388 (1983).
Trial court erred by denying the plaintiff's motion for a supersedeas bond after the plaintiff successfully obtained a jury verdict against the defendants; the plaintiff exercised the statutory right to move the trial court for a supersedeas bond and was under no obligation either to ask for a hearing or to show that the defendants were incapable of satisfying the judgment against the defendants. The trial court was obligated to require the defendants to post a supersedeas bond in the full amount of the judgment, including costs, interest, and damages, unless, after notice and hearing, the court found good cause for fixing a lesser amount. Barngrover v. Hins, 289 Ga. App. 410, 657 S.E.2d 14 (2008).
Trial court erred in denying a broker's motion for a supersedeas bond because having received a judgment for the recovery of money against the sellers, the broker exercised the broker's statutory right to move for a supersedeas bond, and under O.C.G.A. § 5-6-46(a), the trial court was obligated to require the sellers to post a supersedeas bond in the full amount of the judgment including costs, interest, and damages, unless, after notice and hearing, the court found good cause for fixing a lesser amount. Cochran v. Kennelly, 306 Ga. App. 838, 703 S.E.2d 411 (2010).
No abuse of discretion found as to amount of bond.
- O.C.G.A. § 5-6-46 vests the trial court with authority to order a supersedeas bond "in such amount as the court may require." Thus, there was nothing in the record to indicate that the trial court abused the court's discretion in ordering a $100,000 supersedeas bond. Phillips v. Connecticut Nat'l Bank, 196 Ga. App. 477, 396 S.E.2d 538 (1990).
Considering the amount of debt secured by property foreclosed upon and the defendant's actions in delaying the foreclosure sale by repeated bankruptcy filings as well as the filing of appeals, the trial court did not abuse the court's discretion by requiring a supersedeas bond in the amount of $340,000. Cloud v. Georgia Cent. Credit Union, 214 Ga. App. 594, 448 S.E.2d 913 (1994).
In a probate proceedings in which the executrix was dismissed as executrix after failing to gain control of the assets of the estate, including a diamond ring and the decedent's van, and the executrix sold the decedent's home without obtaining an appraisal and without attempting to realize the best price on the open market, the trial court did not abuse the court's discretion under O.C.G.A. § 5-6-46 in requiring the executrix to post a supersedeas bond in the amount of $95,500; the contested values of the decedent's home, the amount of the executor's fees, and the lack of any valuation as to the household furnishings, the diamond ring, and the van justified the amount of the bond. In re Estate of Zeigler, 273 Ga. App. 269, 614 S.E.2d 799 (2005).
Order to post bond upheld.
- When a case presented mixed questions of equity and law, and the trial court's final order enforced a contract, the trial court did not err when the court required the posting of a supersedeas bond. Ruskin v. AAF-McQuay, Inc., 284 Ga. App. 49, 643 S.E.2d 333 (2007).
Read together, O.C.G.A. §§ 5-6-13(a) and5-6-46(a) required the trial court to grant the husband a supersedeas when the husband filed a "Notice of Intent to Appeal" and to grant the wife's motion to require the husband to post a supersedeas bond. Horn v. Shepherd, 292 Ga. 14, 732 S.E.2d 427 (2012).
Supersedeas does not apply to foreclosure confirmation proceeding.
- O.C.G.A. § 5-6-46(a) provides, in part, that in civil cases, the notice of appeal filed shall serve as supersedeas and it shall not be necessary that a supersedeas bond or other form of security be filed; thus, by the statute's express terms, that statute applies only to civil cases, not foreclosure confirmation proceedings under O.C.G.A. § 44-14-161(a). Summit Inv. Mgmt. Acquisitions I, LLC v. Greg A. Becker Enters., Ltd., 317 Ga. App. 608, 732 S.E.2d 286 (2012).
Charging order fell within disposition of property provision requiring bond.
- Trial court did not abuse the court's discretion in requiring that the appellant post a supersedeas bond because the charging order against the appellant fell within the disposition-of-property provision of O.C.G.A. § 5-6-46(a) and the appellee was entitled to a supersedeas bond to secure the appellee's use of that property for purposes of the charging order. Gaslowitz v. Stabilis Fund I, LP, 331 Ga. App. 152, 770 S.E.2d 245 (2015).
Abatement of interest.
- Trial court's order granting the motion for supersedeas bond was reversed to the extent that the order abated post-judgment interest because abatement of the post-judgment interest was prohibited by the supersedeas, and the trial court erred in so ordering. Northside Bank v. Mountainbrook of Bartow County Homeowners Ass'n, 338 Ga. App. 126, 789 S.E.2d 378 (2016).
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Appellate Review, §§ 292 et seq., 421.
2 Am. Jur. Pleading and Practice Forms, Appeal and Error, § 262.
C.J.S.- 4 C.J.S., Appeal and Error, § 477 et seq., 531 et seq.
ALR.
- Reversal as affecting purchase of property involved in suit, pending appeal without supersedeas, 36 A.L.R. 421.
Failure of obligee in supersedeas bond to accept protection thereof or his act inconsistent therewith as affecting liability on bond, 53 A.L.R. 807.
Amount named in appeal or supersedeas bond as the maximum limit of sureties' liability or as a limitation of the amount which they undertake shall by paid on the judgment appealed from, 87 A.L.R. 257.
Appeal from award of injunction as stay or supersedeas, 93 A.L.R. 709.
Liability of surety on appeal or supersedeas bond as affected by death of principal before decision on appeal, 94 A.L.R. 971.
Claim of obligee or surety on supersedeas bond, or other bond given in course of litigation, as entitled to preference over mortgage bondholders of railroad or other corporation, 113 A.L.R. 494.
Measure and items of damages recoverable upon a suspending or supersedeas bond on appeal from an order appointing a receiver or confirming such appointment, 117 A.L.R. 1274.
Right to stay without bond or other security pending appeal from judgment or order against executor, administrator, guardian, trustee, or other fiduciary who represents interests of other person, 119 A.L.R. 931.
Liability on supersedeas bond which was legally insufficient to effect stay, where enforcement of judgment was in fact suspended, 120 A.L.R. 1062.
When appeal is or is not deemed to have been prosecuted "with effect" or "to effect" within condition of supersedeas bond, 163 A.L.R. 410.
Attorneys' fees paid by appellee in resisting unsuccessful appellate review as damages recoverable on appeal bond, 37 A.L.R.2d 525.
Stay or supersedeas on appellate review in mandamus proceeding, 88 A.L.R.2d 420.
Taxable costs and disbursements as including expenses for bonds incident to steps taken in action, 90 A.L.R.2d 448.
Effect of supersedeas or stay on antecedent levy, 90 A.L.R.2d 483.
Measure and amount of damages recoverable under supersedeas bond in action involving recovery or possession of real estate, 9 A.L.R.3d 330.
Appealability of order directing payment of money into court, 15 A.L.R.3d 568.