Beatty v. Underground Atlanta, 31449

• Decision Date: 19 October 1976
• Docket Number: No. 31449,31449
• Parties: Alexander BEATTY v. UNDERGROUND ATLANTA et al.
• Court: Georgia Supreme Court

Page 615

229 S.E.2d 615

237 Ga. 844

Alexander BEATTY v. UNDERGROUND ATLANTA et al.

No. 31449.

Supreme Court of Georgia.

Oct. 19, 1976.

Rehearing Denied Nov. 2, 1976.

Patterson, Parks, Jackson & Howell, Jack LaSonde, David E. Allman, Atlanta, for appellant.

Sutherland, Asbill & Brennan, John W. Bonds, Jr., Huie, Ware, Sterne, Brown & Ide, R. William Ide, III, W. Stell Huie, C. Edward Dobbs, Atlanta, for appellees.

UNDERCOFLER, Presiding Justice.

This is an action for damages and injunction alleging improper notice of termination by Underground Atlanta of appellant's sublease following the sale to Marta of a large tract of land which included the sub-leased premises. Appellant complains the trial court erred in awarding summary judgments to appellees, Underground Atlanta and MARTA. The trial court held separate hearings on the two motions, entered separate judgments and separate notices of appeal were filed. The cases were transmitted together for appeal.

1. The record shows proper filing of notice of appeal by appellant following the order of March 4, 1976, in favor of Underground Atlanta. However, the record shows appellant filed an 'Amended Notice of Appeal' following the order filed April 27th 1976, in favor of MARTA, on May 28, 1976, thirty-one days following filing of such order. This notice was not timely filed, confers no jurisdiction upon this court, and must be dismissed as to MARTA. Ga.L.1968, Sec. 2(b), p. 1074; Code Ann. §§ 6-803(a), 6-809(b)(1).

Appellant cannot use a nunc pro tunc order secured ex parte in June 4, 1976, to consolidate the two appeals and add MARTA as a defendant under the appeal granted earlier with respect to Underground Atlanta. 'A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered previously to the making of the entry, which is to take effect as of the former date. Such an entry cannot be made to serve the office of correcting a decision however erroneous, or of supplying non-action on the part of the court.' Pendergrass v. Duke, 147 Ga. 10(2), 92 S.E. 649 (1917); Stubbs v. Mendel, 148 Ga. 802(2), 98 S.E. 476 (1918). Further, such an entry 'cannot serve . . . to supply an order which it (the trial court) failed to make.' Adams v. Payne, 219 Ga. 638, 641, 135 S.E.2d 423 (1964).

2. We have reviewed the record carefully regarding the complaint against Underground Atlanta. The leases upon which appellant relies each contain a termination clause giving the lessor...