Chappelaer v. General G. M. C. Trucks, Inc., s. 48527
| Decision Date | 11 January 1974 |
| Docket Number | 48528,No. 1,Nos. 48527,s. 48527,1 |
| Citation | 130 Ga.App. 664,204 S.E.2d 326 |
| Parties | H. G. CHAPPELAER, Jr. v. GENERAL G.M.C. TRUCKS, Inc., (two cases) |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In a civil action the filing of a notice of appeal does not serve as a supersedeas until all costs in the trial court have been paid.
2, 3. It is within the sound discretion of the trial judge whether to grant a continuance because of the absence of counsel.
The appellant filed an appeal from two orders of the trial judge. The first order appealed from was the setting aside of a verdict for the appellant and granting a new trial. The second order from which the appellant appealed was the dismissing of the action with prejudice for want of prosecution.
Larry Cohran, Atlanta, for appellant.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, John A. Howard, Atlanta, for appellee.
1. The appellant filed an action for breach of contract against the appellee and the jury returned a verdict for the appellant. The appellant then filed a notice of appeal. Subsequent to the filing of the notice of appeal the trial judge set aside the judgment and granted a new trial.
The appellant contends that the trial judge had no authority to grant the motion for a new trial because the notice of appeal had been filed and therefore served as a supersedeas. The filing of a notice of appeal does serve as a supersedeas in civil cases 'upon payment of all costs in the trial court.' Code Ann. § 6-1002(a) (Ga.L.1965, pp. 18, 22). However, in the present case the cost had not been paid at the time the trial judge granted the new trial, therefore the notice of appeal did not serve as a supersedeas.
2. Subsequent to the granting of the motion for a new trial the case came on for trial again. When the case was called, appellant's counsel was not present and the trial judge dismissed the action for want of prosecution. Appellant's counsel argues that this order was error because he was ill and unable to attend court and that this information had been conveyed to the trial judge prior to the call of the case. Appellant's counsel filed a motion to vacate and set aside the order of dismissal and reinstate the case. The motion and affidavits attached stated in part that: 'Upon returning to his residence on the evening of February 6th, 1973, plaintiff's attorney became extremely ill and throughout the night suffered from nausea, fever, chills, severe stomach pains and diarrhea. At approximately 7:00 a.m. on February 7th, 1973, plaintiff's attorney, Larry Cohran, called John Thomas Chason, an attorney who shares offices in plaintiff's attorney's suite, and asked him to go to see Judge Etheridge and advise him that plaintiff's attorney was at home, ill, and was unable to come to court to try the case, and that plaintiff's attorney would attempt to contact Judge Ethridge by telephone himself if he was able to get through to him-all as evidenced by the affidavit of Larry Cohran attached hereto, marked Exhibit 'A' and by reference incorporated into and made a part of this motion.
'At approximately 9:20 a.m. on February 7th, 1973, John Thomas Chason went to the offices of Judge Jack Etheridge and, upon being advised by Miss Alice Beck, secretary to Judge Etheridge, that there were four people waiting ahead of him to see the Judge, Mr. Chason advised Miss Beck that he was there on behalf of plaintiff's attorney to advise Judge Etheridge that plaintiff's attorney was at his residence, extremely sick and unable to appear in court for the trial of said case. Mr. Chason also advised Miss Linda Mitchell, Deputy Clerk of the Fulton Superior Court assigned to Judge Etheridge, at the same time and place that Larry Cohran was at his residence, sick, and unlable to appear in court to try the within case. John Thomas Chason had to answer another court calendar in the courtroom of Judge Tanksley in the Fulton Superior Court and was assured by both Miss Beck and Miss Mitchell that the message would be conveyed to the Judge that plaintiff's attorney was at home ill-all as evidenced by the affidavit of John Thomas Chason attached hereto, marked Exhibit 'B' and by reference incorporated into and made a part of this motion.
'At approximately 10:00 a.m. on February 7th, 1973, plaintiff's attorney contacted Judge Jack Etheridge by telephone and told the Judge that he was at home sick with a fever and unable to come to court, and did invite Judge Etheridge to send a county physician to his residence if...
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Lott v. Arrington & Hollowell, PC, No. A02A1068
...does not serve as a supersedeas until all costs in the trial court have been paid. OCGA § 5-6-46(a); Chappelaer v. Gen. GMC Trucks, 130 Ga.App. 664[, 665(1) ], 204 S.E.2d 326 (1974)." Duncan v. Ball, 172 Ga.App. 750, 751(1), 324 S.E.2d 477 (1984); see ARA Health Svcs. v. Stitt, 250 Ga.App. ......
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Duncan v. Ball
...appeal does not serve as a supersedeas until all costs in the trial court have been paid. OCGA § 5-6-46(a); Chappelaer v. Gen. GMC Trucks, 130 Ga.App. 664, 204 S.E.2d 326 (1974). Once the costs are paid, the supersedeas comes into effect and the trial court loses jurisdiction over a given c......
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Hooper v. Southern Bell Tel. & Tel. Co., A90A0632
...the filing of a notice of appeal does not serve as a supersedeas until all costs in the trial court have been paid." Chappelaer v. Gen. GMC Trucks, 130 Ga.App. 664 (hn.1), 204 S.E.2d 326 (1974); OCGA § Likewise appellant's unsupported request for a time extension did not deprive the trial c......