G. M. J. v. State

• Decision Date: 21 November 1973
• Docket Number: No. 48024,2,3,Nos. 1,48024,s. 1
• Citation: 130 Ga.App. 420,203 S.E.2d 608
• Parties: G.M.J. v. STATE of Georgia
• Court: Georgia Court of Appeals

Page 608

203 S.E.2d 608

130 Ga.App. 420

G.M.J. v. STATE of Georgia.

No. 48024.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 21, 1973.

Rehearing Denied Dec. 13, 1973.

Lucy S. Henritze, Charles E. Lamkin, Atlanta, for appellant.

Thomas M. Witcher, Decatur, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

If, as we conclude to be the case, this appeal was entered prematurely it must be dismissed. Code Ann. § 6-809(b)(2). Where the appeal is premature this court lacks jurisdiction to entertain it. Black v. Miller, 113 Ga.App. 10, 147 S.E.2d 57.

Although there is no motion to dismiss before us, it is not only the right but the duty of this court to raise and determine the question of our jurisdiction where there can be any doubt as to it. Drury v. City of Woodbine, 96 Ga.App. 158, 99 S.E.2d 550, and citations. If we have no jurisdiction it can not be conferred by a waiver of the parties. (DeLang v. Clare, 137 Ga. 291, 73 S.E. 374; Capers v. Ball, 211 Ga. 502, 503, 87 S.E.2d 85), or even by their agreement. Zorn v. Lamar, 71 Ga. 80(4); Bass v. Bass, 73 Ga. 134, 135; Baldwin v. Lowe, 129 Ga. 711(4), 59 S.E. 772.

The notice of appeal was filed January 10, 1973, and it purports to be directed to an 'order of the court dated December 11, 1972, denying the juvenile's motion to compel discovery' of any confession that he may have made as well as any admission or statement thay may have been made by his codefendants.

There is no order of December 11, 1972 in the record as sent up to this court from the trial court. Apprehending that this was an omission due to oversight we sent down to the clerk of the trial court an order directing that the record be supplemented by sending a certified copy of the order of December 11, 1972 to the clerk of this court. Instead the clerk sent to this court a certified copy of an order as follows:

'The motion of the above named juvenile to compel discovery of any and all confessions, admissions, or statements made by said juvenile or his codefendant, came on for argument on December 11, 1973 (sic); and arguments having been heard and considered, it was ordered and adjudged on December 11, 1973 (sic), that the said Motion to Compel Discovery was denied.

'Signed nunc pro tunc, this 4th day of October, 1973. Dennis F. Jones, Judge, Juvenile Court of DeKalb County.'

The clerk of the trial court has, additionally, certified that the order of December 11, 1972 was not reduced to writing and filed in his office until October 4, 1973, when it was done by the nunc pro tunc order, and that the nunc pro tunc order was the only one to that effect filed with the clerk from December 11, 1972 to November 1, 1973.

1. 'The record does not contain a judgment in writing overruling the motion. In the absence of a judgment in writing no question for decision is presented to this court. Construction & General Laborers Union v. Williams Const. Co., 212 Ga. 691, 95 S.E.2d 281.' Seabolt v. Seabolt, 220 Ga. 181, 137 S.E.2d 642. 'What the judge orally declares is no judgment until it has been put in writing and entered as such. In the absence of a judgment in writing no question for decision is presented to the appellate court. (cits.)' Olivet v. State, 117 Ga.App. 860(1), 162 S.E.2d 306. Here there was no judgment in writing until October 4, 1973; hence none at the time the notice of appeal was filed.

2. The filing with the clerk of a judgment, signed by the judge, constitutes the entry of such judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same, as hereinbefore provided.' (Emphasis supplied.) Code Ann. § 81A-158(b). Even prior to the Civil Practice Act it was held with reference to interlocutory orders, that 'A judgment is not final in the sense that it cannot be withdrawn or changed by the trial judge until it has been entered.' Blakely hardwood Lbr. Co. v. Reynolds Bros. Lbr. Co., 173 Ga. 602(2b), 160 S.E. 775.

'(T)he appeal must be filed after entry of judgment . . . (and) the judgment can not be considered appealable until it is actually entered. That a judgment must be entered before an appeal is taken is a rule of reason which has long existed. (Citations). The Appellate Practice Act, now of vogue, did not repeal but confirmed the rule.' Gibson v. Hodges, 221 Ga. 779(2), 147 S.E.2d 329. Accord: Benton v. Smith, 226 Ga. 722, 177 S.E.2d 230; Bonzheim v. Bonzheim, 227 Ga. 478, 181 S.E.2d 363.

'Whether or not we agree with the rule so developed, we are bound by the decisions of the Supreme Court . . . We concede there must be an entry of judgment to finally dispose of the case or for the purpose of using the judgment to support an appeal to this court of the Supreme Court.' Dunagan v. Sims, 119 Ga.App. 765, 767, 168 S.E.2d 914, 915.

It is true that the certificate of appealability granted December 21, 1972 recites that there was an order of December 11, 1972 denying the juvenile's motion to compel discovery of any and all confessions, admissions or statements made by the juvenile or his codefendants, but that is a mere recital as to the history of the matter; it is not, itself, the judgment or order denying the motion. Davis v. Davis, 224 Ga. 740, 164 S.E.2d 816.

3. While a nunc pro tunc reducing of an oral judgment to writing may be done, it is nevertheless ineffective as a viable order or judgment until it has been reduced to writing and filed with the clerk. Not only is there no provision for a nunc pro tunc filing with the clerk, but the certified copy of the supplemental record sent up shows on its face that there was no attempt to do so. The written judgment was not filed with the clerk until October 4, 1973, and only then could it become effective. It could not validate an appeal from it entered January 10, 1973.

4. That the certificate of appealability is not itself a judgment in the cause, but is simply an order allowing a judgment or order already entered to be appealed and reviewed is made clear from the language of Code Ann. § 6-701(a2)itself: 'Where the trial judge in rendering an order, decision or judgment not otherwise subject to direct appeal, certifies within 10 days of the entry thereof' that it is of such importance that it should be reviewed. See Gibson v. Hodges, 221 Ga. 779, 782, 147 S.E.2d 329, supra.

5. There can be no effective appeal from anything but a judgment-a final judgment without a certificate, or an interlocutory judgment with a certificate, reduced to writing and entered by filing with the clerk. Code Ann. § 6-701; Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436, 150 S.E.2d 618; Williams v. Keebler, 222 Ga. 437, 150 S.E.2d 674; Davis v. Davis, 224 Ga. 740, 164 S.E.2d 816; Hurst v. Starr, 226 Ga. 42, 172 S.E.2d 604; Smith v. Sorrough, 226 Ga. 744, 177 S.E.2d 246; herrington v. Herrington, 230 Ga. 94, 195 S.E.2d 654, and citations in Division 1.

At the time the Notice of Appeal was entered there was no judgment from which there could be an appeal, and the appeal must be dismissed.

Appeal dismissed.

BELL, C.J., HALL, P.J., and PANNELL, CLARK and STOLZ, JJ., concur.

DEEN, QUILLIAN and EVANS, JJ., dissent.

DEEN, Judge (dissenting).

1. There has been no motion to dismiss this appeal, and I do not consider the record before us gives any scope to this court to dismiss on its own motion. As the Supreme Court stated in Southern Bell T & T Co. v. Ga. Pub. Serv. Comm., 203 Ga. 832, 872, 49 S.E.2d 38: 'Since the jurisdiction of the court was not questioned in any manner provided by law, it can not be raised here unless the judgment on its face shows want of jurisdiction.' The trial judge certified that the motion to compel discovery, a copy of which is in the record, came on for argument and that 'arguments having been heard and considered, it was ordered and adjudged that said motion to compel discovery was denied.' He further certified on December 21, 1972, that he did, on December 11, 1972, deny the juvenile's motion to compel discovery and that now 'within 10 days thereof, I hereby certify that said order is of such importance that . . . direct appeal to the Court of Appeals is proper and should be had.' (Emphasis supplied.) These two orders, in both of which the trial judge assures us that he did in fact enter the order complained of and certify it for review within the time limited, has not been questioned by either litigant, and should not now be raised by this court as a grave risk of doing injustice to the parties involved.

2. The juvenile here involved had, at the time of the alleged car theft, burglary, and theft barely turned 16 years of age. The record fails to show when counsel was obtained for him, but the motion to compel the solicitor to turn over any incriminating statements or confessions made by him to officers of the law was filed several months after the petition to have him adjudged delinquent. From this we may assume (1) there is some basis for believing that the juvenile made a confession or near confession, and (2) counsel was not present when he did so. In the face of In re Gault, 387 U.S. 1, 35, 87 S.Ct. 1428, 1448, 18 L.Ed.2d 527, it is hard to imagine how such a document could be used in an adjudication hearing; it might, however, contain matter which, if unknown to counsel, could gravely prejudice the defense. It was there...