Gibson v. Hodges

• Decision Date: 10 February 1966
• Docket Number: No. 23316,23316
• Citation: 147 S.E.2d 329,221 Ga. 779
• Parties: O. H. GIBSON et al. v. Eugene HODGES.
• Court: Georgia Supreme Court

Page 329

147 S.E.2d 329

221 Ga. 779

O. H. GIBSON et al. v. Eugene HODGES.

No. 23316.

Supreme Court of Georgia.

Feb. 10, 1966.

Ballard & Thigpen, W. D. Ballard, Troy R. Thigpen, Jr., Covington, for appellants.

Greeley Ellis, Covington, for appellee.

Syllabus Opinion by the Court

QUILLIAN, Justice.

On January 12, 1965, the appellee, Eugene Hodges, filed his suit in Newton Superior Court against the appellants, O. H. Gibson, Southern Milling Company and W. T. Greer, Sr. The suit was for specific performance of an alleged oral contract to convey land between himself and O. H. Gibson, and it contained a prayed for cancellation of the warranty deed of W. T. Greer, Sr., to the same land. Southern Milling company was joined as a defendant in the suit, but only for the purpose of ascertaining the amount owing it by O. H. Gibson on his piror deed to secure debt. On September 23, 1965, the jury returned a verdict in favor of Hodges against the defendants Gibson and Greer as follows: 'We the jury find for the plaintiff Eugune Hodges and against the defendant O. H. Gibson and instruct Mr. Gibson to issue warranty deed to Mr. Hodges for said property. We further find the warranty deed issued to Mr. W. T. Greer, Sr., is void, and should be cancelled, a new warranty deed issued to Mr. Eugene Hodges for said property at the original agreed price of $7,000.00.'

On October 8, 1965, the appellant served and filed the following notice of appeal: 'Notice is hereby given that (the defendants) * * * hereby appeal to the Supreme Court of Georgia from the judgment on the verdict entered in this action on September 23, 1965.' Thereafter, on October 22, 1965, the trial judge entered a decree on the verdict, which provided in part: '(a) That specific performance of the contract between Petitioner and Defendant O. H. Gibson for the purchase of said property by Petitioner for the sum of $7,000.00 is hereby decreed; (b) That the Clerk of this Court is hereby ordered to remit the said sum of $7,000.00 to Defendant O. H. Gibson for the purchase price of said property; (c) That the said Warranty Deed from Defendant O. H. Gibson to Defendant W. T. Greer, Sr., is hereby decreed to the null and void and shall be cancelled of record by the Clerk of this Court * * *; (d) This decree for specific performance of said contract shall operate as a conveyance of said property from Defendant O. H. Gibson to the Petitioner, Eugene Hudges, without any further conveyance being necessary; and this decree, certified by the Clerk of this Court, shall be recorded in the registry of deeds in Newton County, Georgia, and shall stand in the place of a deed, all as provided by Section 37-1202 of the Code of Georgia.' The enumeration of errors filed in this court, more than thirty days after any judgment was entered in the case, allege certain appealable orders and judgments were entered in the case. Held:

1. The solemn duty devolves upon this court to inquire into its jurisdiction to entertain each appeal and review the alleged errors of the trial court. Byrd v. Goodman, 192 Ga. 466(1), 15 S.E.2d 619. The jurisdiction of an appellate court to consider an appeal depends upon whether the appeal is taken in substantial compliance with the rules of appellate procedure prescribing the conditions under which the judgment of the trial court may be considered appealable.

2. The questions raised by the record in this case are: (1) whether the appeal filed fourteen days before the judgment complained of was entered was substantial compliance with Ga.L.1965, p. 18 (Code Ann. § 6-701), and Ga.L.1965, pp. 18, 21 (Code Ann. § 6-803), which latter section requires that the appeal must be filed after entry of judgment; (2) whether there might be any appeal from an antecedent ruling, order or judgment under section (b) of Code Ann. § 6-701 where there has been no proper appeal under section (a) of that Code section.

The Appellate Practice Act of 1965, Ga.L.1965, p. 18, as amended Ga.L.1965, p. 240, is embodied in Code Ann. Title 6. The provisions of the act pertinent to the questions above posed will be referred to as contained in designated sections of the unofficial Code. Code Ann. § 6-701(a), 1 and 2 provides: 'Appeals may be taken to the Supreme Court and Court of Appeals from judgments and rulings * * * in the following instances: 1. Where the judgment is final-that is to say-where the cause is no longer pending in the court below. 2. Where the decision or judgment complained of, if it had been rendered as claimed for by the appellant, would have been a...