Cochran v. Levitz Furniture Co. of Eastern Region, s. 38066

Citation249 Ga. 504,291 S.E.2d 535
Decision Date19 May 1982
Docket Number38065,Nos. 38066,s. 38066
PartiesCOCHRAN, et al. v. LEVITZ FURNITURE COMPANY OF the EASTERN REGION. ALLSTATE INSURANCE COMPANY, et al. v. TRAVELER'S INSURANCE COMPANY, et al.
CourtSupreme Court of Georgia

Robert C. Semler, Diane Q. House, Dennis, Corry, Webb, Carlock & Williams, Atlanta, for Evelyn Cochran et al. and Allstate Ins. Co. et al.

Brian F. Dorsey, Oliver B. Dickins, Jr. & Associates, Atlanta, for Levitz Furniture Co. of Eastern Region, Inc. and Traveler's Ins. Co. et al.

SMITH, Justice.

Appellants, Evelyn Cochran and Allstate Insurance Company, obtained a default judgment against Levitz Furniture Company on December 3, 1980. During the next term of court, on January 28, 1981, Levitz filed a motion to open default and an out of time motion for new trial. On the same date, Levitz and Traveler's Insurance Company filed a complaint in equity to set aside the default judgment. After hearing, the trial court granted the motion to open default and the motion for new trial, and found in favor of Levitz and Travelers on their complaint in equity. The parties were ordered to proceed to trial on the merits.

In Case No. 38065, Cochran and Allstate appeal from the judgment of the complaint in equity. In Case No. 38066, Cochran and Allstate appeal from the grant of appellees' motion for new trial and motion to open the default. We reverse.

(1) Appellees have moved to dismiss both appeals. They argue that the trial court's order opening default and granting the motion for new trial is not a final order and therefore not appealable absent a certificate of immediate review, which appellants did not acquire. Therefore, say appellees, the appeal in Case No. 38066 must be dismissed. Appellees then argue that with the appeal in Case No. 38066 dismissed, the case must be tried on its merits regardless of the outcome of the appeal in Case No. 38065. Thus, the latter appeal would be moot and would also have to be dismissed. We disagree.

The policy of the Appellate Practice Act is against multiple appeals and piecemeal litigation. Executive Jet Sales v. Jet America, 242 Ga. 307, 248 S.E.2d 676 (1978); Code Ann. § 6-905. Code Ann. § 6-701(b) states in part: "Where an appeal is taken under any provision of paragraph (a) above, all judgments, rulings or orders rendered in the case which are raised on appeal, and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling or order standing alone, and without regard to whether the judgment, ruling or order appealed from was final, or was appealable by some other express provision of law contained in paragraph (a) above, or elsewhere."

Appellees do not dispute that the judgment of the complaint in equity is a final judgment and thus appealable pursuant to Code Ann. § 6-701(a)(1). Both appeals in this case emanate from the same court, involve the same parties, and pertain to the same default judgment. We conclude that appellees' motion to dismiss should be denied.

(2) "A complaint in equity may be brought to set aside a judgment for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant. Code Ann. § 81A-160(e) (see former Code §§ 37-219, 110-710). The phrase 'unmixed with the negligence or fault of the complainant' modifies the words 'fraud, accident or mistake' as well as the words 'acts of the adverse party.' Marshall v. Livingston, 77 Ga. 21, 28 (1886)." Leventhal v. C&S National Bank, 249 Ga. 390, 291 S.E.2d 222 (1982).

In this case, appellants, as plaintiffs below, properly served the complaint on Levitz' registered agent for service of process in Georgia. The agent mailed the complaint to the associate general counsel for Levitz in Miami, Florida, Edward Zimmer. Zimmer mailed the complaint to Amercon, an...

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9 cases
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    • United States
    • Georgia Court of Appeals
    • 4 September 1985
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    • United States
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  • Dempsey v. Gwinnett Hosp. Sys., Inc.
    • United States
    • Georgia Court of Appeals
    • 21 November 2014
    ...OCGA § 5–6–30. The Act disfavors “multiple appeals and piecemeal litigation.” (Citation omitted.) Cochran v. Levitz Furniture Co., 249 Ga. 504, 505(1), 291 S.E.2d 535 (1982). Nevertheless, in authorizing cross-appeals in civil cases, it is fundamental that there must exist an adverse ruling......
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    • Georgia Court of Appeals
    • 28 June 1984
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