Centennial Ins. Co. v. Sandner, Inc.
| Decision Date | 07 July 1989 |
| Docket Number | No. 46472,46472 |
| Parties | CENTENNIAL INSURANCE COMPANY v. SANDNER, INC. et al. |
| Court | Georgia Supreme Court |
John W. Winborne III, Neely & Player, Atlanta, for Centennial ins. co.
Robert E. Shields, W. Anthony Moss, Thomas H. Christopher, David P. Phippen, Kilpatrick & Cody, G. Thomas Davis, Lawson & Davis, Atlanta, for Sandner, Inc., et al.
We granted certiorari in this case to consider whether a cross-appeal ever lies against a party who is not an appellant. The Court of Appeals concluded a cross-appeal could not lie in such a situation. Centennial Insurance Co. v. Sandner, Inc., 189 Ga.App. 277, 281(3), 375 S.E.2d 611 (1988). 1 We disagree.
1. Several provisions of the Appellate Practice Act, OCGA § 5-6-30 to § 5-6-51 are relevant to our inquiry. OCGA § 5-6-30 provides that the Appellate Practice Act shall be construed liberally "so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein."
Moreover, the cross-appeal provision, OCGA § 5-6-38, provides that "the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him; and in no case shall the appellee be required to institute an independent appeal on his own right." Thus, OCGA § 5-6-38 does not specifically limit an appellee to cross-appealing only against an appellant, or only to enumerations raised by an appellant.
Furthermore, OCGA § 5-6-37 states that "all parties to the proceedings in the lower court shall be parties on appeal," and shall be served with a copy of the notice of appeal. We have construed the phrase "proceedings in the lower court" to include all proceedings in the lower court and not merely those that directly relate to the appellant's enumerations of error. Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676 (1978). Thus, all parties to all proceedings in the lower court are parties on appeal.
Construing the foregoing provisions liberally, § 5-6-30, we hold that an appellee may institute a cross-appeal against a party other than an appellant. 2 This holding is consistent with the liberal construction we have given the Appellate Practice Act in such cases as Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 296(1), 271 S.E.2d 199 (1980); Marathon U.S. Realties, Inc. v. Kalb, 244 Ga. 390, 260 S.E.2d 85 (1979); and Executive Jet, supra, 242 Ga. 307, 248 S.E.2d 676 Statements to the contrary that are contained in Glennville Wood, etc., Co. v. Riddlespur, 156 Ga.App. 578(1), 276 S.E.2d 248 (1980), and All American Assur. Co. v. Brown, 177 Ga.App. 402, 405, 339 S.E.2d 611 (1985), are disapproved.
Applying the foregoing principles to the instant case, we conclude that Centennial properly instituted a cross-appeal against Bailey, Martin and Fay.
2. We find it necessary to address one other contention of the appellees. They contend that Centennial's cross-appeal is improper because Centennial is seeking to cross-appeal the denial of a motion for summary judgment without first following the interlocutory appeal procedures of OCGA § 5-6-34(b). We decided this contention adversely to the appellees in Marathon U.S. Realties, Inc., supra, 244 Ga. at 392-393, 260 S.E.2d 85.
3. For the foregoing...
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