Cohran v. Carlin, 63237
| Decision Date | 02 December 1981 |
| Docket Number | No. 63237,63237 |
| Citation | 288 S.E.2d 81,160 Ga.App. 762 |
| Parties | COHRAN v. CARLIN et al. |
| Court | Georgia Court of Appeals |
Hilton B. Dupree, Roy E. Barnes, Marietta, for appellant.
Taylor W. Jones, Atlanta, for appellees.
This contempt case arises from the litigation which was the subject of a notice of appeal in Cohran v. Jones, 160 Ga.App. 761, 288 S.E.2d 80. The notice of appeal in that action was filed May 8, 1981 and has been dismissed by this court as the litigation is still pending in the trial court, appellant having failed to obtain permission for an interlocutory appeal as required by Code § 6-701(a)2. Two orders of the trial court passed the same day and requiring the defendant to answer certain interrogatories and make certain discovery were not complied with and this triggered the contempt judgment of June 15, 1981 from which this appeal was filed.
We affirm. Where, as in Walker v. Walker, 239 Ga. 175, 236 S.E.2d 263 (1977) 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 for the reason that Code Ann. § 6-1002(a) provides that in civil cases a notice of appeal from such final judgment serves as a supersedeas. See also Lake v. Hamilton Bank, 150 Ga.App. 123, 257 S.E.2d 31 (1979). Also, since the amendment to Code § 6-701(a)2 by Ga.L. 1975, pp. 757, 758, effective July 1, 1975, an order of the appellate court granting a petition for interlocutory review where the trial court had issued the required 10-day certificate that immediate review should be had, the notice of appeal timely filed thereafter "shall act as a supersedeas as provided in Section 6-1002 and the procedure thereafter shall be the same as in an appeal from a final judgment."
Turner v. Harper, 233 Ga. 483, 211 S.E.2d 742 was decided on January 7, 1975, prior to the effective date of Code 6-701(a)2 setting out the present procedure for interlocutory appeals. That case properly held under the law then obtaining that where an interlocutory appeal is certified for review in the appellate court (no petition for review to this court being a part of the prior procedure), "[T]he trial court retains jurisdiction with discretionary power to proceed with the trial or enter any other order in the case pending the appeal." Id., p. 484. It is clear that except for the right to automatic supersedeas set out in Code § 6-701(a)1 or 2 the trial court does in fact have jurisdiction to proceed with the case, although of course any judgment so rendered is subject to being vacated if adversely affected by the judgment in the pending appeal.
We have held in Cohran v. Jones, supra, that the attempted appeal in that case, not being from a final judgment nor upon the grant of a petition for interlocutory review, was a nullity. The trial court accordingly retained jurisdiction with discretionary power to order the defendant to comply with certain interrogatories, subpoenas and other discovery requests, and to hold him in contempt for wilful failure to do so.
Judgment affirmed.
ON MOTION FOR REHEARING.
The appellant's motion misconstrues our citation of Turner v. Harper, 233 Ga. 483, 211 S.E.2d 742. We cited this case not as existing law but to support the proposition that supersedeas is a stay of proceedings in the trial court which can only come about legitimately when a statutory condition under which supersedeas is arrived at has been observed. Where there is no supersedeas pending appeal, the trial court has jurisdiction and may conduct further proceedings in the case.
We pointed out that the statutes provide two cases in which the appeal acts as a supersedeas. This is because Code § 6-1002 dealing with supersedeas in civil cases holds that in civil cases, "the notice of appeal filed as hereinbefore provided shall serve as a supersedeas, upon payment of all costs in the trial court by the appellant, and it shall not be necessary that a supersedeas bond be given..." (Emphasis supplied.)
Thus the filing of a notice of appeal "as...
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Cohran v. Carlin
...granted certiorari but subsequently dismissed the writ. Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982). In Cohran v. Carlin, 160 Ga.App. 762, 288 S.E.2d 81 (1981), the Court of Appeals considered whether the trial court retained jurisdiction to impose sanctions after Cohran filed his ......
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Sweatt v. Jarboe
...150 Ga.App. 525, 258 S.E.2d 139 (1979). See also Walker v. Walker, 238 Ga. 273, 232 S.E.2d 554 (1977); Cohran v. Carlin, 160 Ga.App. 762, 288 S.E.2d 81 (1981). The trial court's subsequent action in entertaining and ruling on appellants' motion for reconsideration and to vacate was therefor......
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Cohran v. Carlin, 65080
...he was adjudged in contempt. Cohran then appealed from the contempt order. This contempt order was affirmed in Cohran v. Carlin, 160 Ga.App. 762, 288 S.E.2d 81 (1981). The affirmance by this court of the contempt order was itself upheld by the Supreme Court on certiorari in Cohran v. Carlin......
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Cohran v. Carlin
...for interlocutory appeal. See Code Ann. § 6-701. The court therefore dismissed the appeal. Simultaneously, in Cohran v. Carlin, 160 Ga.App. 762, 288 S.E.2d 81 (1981), hereinafter identified as the "contempt case", the Court of Appeals held that since the appeal in the third party defendants......