Housing Authority of City of Douglas v. Marbut Co., 46818

• Decision Date: 10 March 1972
• Docket Number: No. 3,No. 46818,46818,3
• Citation: 189 S.E.2d 101,125 Ga.App. 806
• Parties: HOUSING AUTHORITY OF CITY OF DOUGLAS v. MARBUT COMPANY
• Court: Georgia Court of Appeals

Page 101

189 S.E.2d 101

125 Ga.App. 806

HOUSING AUTHORITY OF CITY OF DOUGLAS v. MARBUT COMPANY.

No. 46818.

Court of Appeals of Georgia, Division No. 3.

March 10, 1972.

Rehearing Denied March 28, 1972.

E. R. Smith, Jr., Douglas, for appellant.

Martin, Snow, Grant & Napier, Cubbedge Snow, Macon, H. J. Quincey, Douglas, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

The notice of appeal filed October 25, 1971, reads in part as follows: 'Notice is hereby given that the Housing Authority of the City of Douglas, defendant in the above captioned case, hereby appeals to the Court of Appeals of Georgia from the order of the Judge of the Superior Court of Coffee County, Georgia, dated the 26th day of July, 1971, in which order the Judge of the Superior Court of said county denied the written motion to dismiss the complaint filed by the defendant, . . .' The record discloses the order overruling the motion to dismiss was entered the 26th day of July, 1971. The notice of appeal by way of recitation shows that subsequent to the order appealed from a trial was had and judgment was rendered against the defendant. The record discloses this judgment was dated and entered October 11, 1971 and contained this recitation: 'it being understood that the rights of defendant are preserved to file a timely appeal to the Court of Appeals of Georgia or the Supreme Court of Georgia on the overruling and denying by court order of a written motion filed by the defendant to dismiss the complaint of the plaintiff on a question of law; said hearing having been held on said motion on the 23rd day of April, 1971, and order entered overruling and denying said motion to dismiss on the 26th day of July, 1971.' The record contains no motion by the defendant to extend the time for filing the notice of appeal. There is no certificate of review in the record.

The enumeration of error enumerates error on the overruling of the motion to dismiss and thereafter also recites the subsequent events in the case. The notice of appeal having been filed more than 30 days subsequent to the entry of the judgment appealed from and there being no certificate of review as required by statute, the appeal must be dismissed. Alexander v. State, 122 Ga.App. 331, 176 S.E.2d 633; Teppenpaw v. Blalock, 121 Ga.App. 320(1, 2), 173 S.E.2d 442; Rockmart Finance Co. v. High, 118 Ga.App. 351, 163 S.E.2d 758; Rush v. State, 124 Ga.App. 547, 184 S.E.2d 515.

Appeal dismissed.

BELL, C.J., and EBERHARDT, QUILLIAN and EVANS, JJ., concur.

JORDAN and HALL, P. JJ., and DEAN and CLARK, JJ., dissent.

HALL, Presiding Judge (dissenting).

In my opinion, this appeal should not be dismissed. The order of July 26, 1971 denying the defendant's motion to dismiss the petition was an interlocutory order and was not 'subject to direct appeal and could not become the law of the case by virtue of not appealing within thirty days from the order. See State Highway Department v. Rosenfield (Rosenfeld), 120 Ga.App. 439(1), 170 S.E.2d 837.' Smith v. Mullinax, 122 Ga.App. 833, 834, 178 S.E.2d 909, 910.

It is true that the notice of appeal (dated October 25, 1971) states that the appellant appeals from the above interlocutory order. However, the notice of appeal also recites that a final judgment was entered on October 11, 1971. Technically the appellant should have specifically recited that it was appealing from the final judgment and then enumerated the interlocutory order as error. This technical defect 'should not result in loss of appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.' 9 Moore's Federal Practice 755, § 203.18. In a similar case the Supreme Court of the United States held: 'It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. 'The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80. The Rules themselves provide that they are to be construed 'to secure the just, speedy, and inexpensive determination of every action.' Rule 1.' Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222. See also 9 Moore's Federal Practice 752-757, § 203.18; United States v. Arizona, 346 U.S. 907, 74 S.Ct. 239, 98 L.Ed. 405; State Farm Mut. Auto. Ins. Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823.

The above federal authorities are in accord with the 1968 amendment to the Appellate Practice Act of 1965 (Code Ann. § 6-809) which was enacted under the Constitution of 1945 (Code Ann. § 2-3704). This statute prohibits dismissals 'where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from . . . notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from . . .'

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