McKeever v. State

• Decision Date: 02 December 1988
• Docket Number: No. 77335,77335
• Citation: 375 S.E.2d 899,189 Ga.App. 445
• Parties: McKEEVER et al. v. STATE of Georgia.
• Court: Georgia Court of Appeals

Page 899

375 S.E.2d 899

189 Ga.App. 445

McKEEVER et al. v. STATE of Georgia.

No. 77335.

Court of Appeals of Georgia.

Dec. 2, 1988.

Branan & Brogdon, Rowe Brogdon, for appellants.

Dupont K. Cheney, Dist. Atty., J. Thomas Durden, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

The State initiated this action to condemn a truck which it had seized in connection with appellant Franklin McKeever's arrest for the sale of drugs. Although the certificate of title was in the name of appellant Johnny McKeever, it was the State's contention that appellant Franklin McKeever was the actual owner of the vehicle. The issue of the ownership of the seized truck was tried before a jury. In its verdict, the jury found appellant Franklin McKeever to be the owner of the vehicle. After the return of the jury's verdict but before the entry of any judgment thereon, appellants filed a "Motion For Judgment Notwithstanding the Verdict and Motion For New Trial." Following a hearing, the trial court denied appellants' motions. Within thirty days, appellants filed this appeal from the denial of their post-verdict, but pre-judgment motions for new trial or judgment n.o.v.

The record of this case contains no final judgment, and the clerk of the trial court has certified that no judgment has ever been entered on the jury's verdict by the trial court. " 'The verdict of a jury, whether resulting from direction or from deliberation, is not an "appealable judgment." [Cit.].... The verdict itself is not a judgment or a ruling, and hence does not fall within the provision of [OCGA § 5-6-34(a) ] that "Appeals may be taken to the Supreme Court and [the] Court of Appeals from [...] judgments and rulings of the superior courts...." ' [Cits.].... ' "(B)efore an appeal may be made, the judgment appealed from must be in writing, and not verbal. [Cits.]".... [Cit.]' " (Emphasis in original.) Littlejohn v. State, 185 Ga.App. 31, 363 S.E.2d 327 (1987). See also Teppenpaw v. Blalock, 226 Ga. 619, 176 S.E.2d 711 (1970); Amie v. Davis, 130 Ga.App. 177, 202 S.E.2d 581 (1973). If no final judgment has ever been entered, it follows that the case remains pending in the trial court and that this court would have no jurisdiction to entertain this appeal. See Littlejohn v. State, supra.

The denial of appellants' motions for new trial or judgment n.o.v. does not constitute a basis for the exercise of appellate jurisdiction over this case. "A motion for judgment notwithstanding the verdict or for a new trial filed prior to entry of the judgment on the verdict is void." Wall v. C & S Bank of Houston County, 153 Ga.App. 29, 30(2), 264 S.E.2d 523 (1980). The present appeal is to be distinguished from a case in which, subsequent to the filing of a void motion for new trial or judgment n.o.v., a judgment was actually entered on the jury's verdict by the trial court. Where there has been the subsequent entry of a judgment, the disposition of the void motion removes the last impediment to finality and the case will no longer be pending in the trial court. Thus, the effect of the subsequent entry of a judgment on the jury's verdict is to render the otherwise void motion one which was only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal. See Dodson v. Dodson, 231 Ga. 789, 204 S.E.2d 109 (1974); Harrison v. Harrison, 229 Ga. 692(1), 194 S.E.2d 87 (1972); Joiner v. Perkerson, 160 Ga.App. 343, 287 S.E.2d 327 (1981). There is a fundamental difference between such a case and that in which, not only is the motion for new trial or judgment n.o.v. otherwise void, but also no judgment has ever been entered. While prematurity goes only to the relative timeliness of the taking of an appeal in a case wherein a final judgment was actually entered, the entry vel non of a final judgment is determinative of the very existence of appellate jurisdiction. " 'There must be judgment and entry....' [Cits.]" Gillen v. Bostick, 234 Ga. 308, 311(1), 215 S.E.2d 676 (1975). In the present case, appellants' void motions for new trial or judgment n.o.v. were never rendered merely "premature" by virtue of the subsequent entry of judgment on the jury's verdict. Notwithstanding the denial of appellants' void motions, the case remains pending in the trial court due to the absence of a final judgment. Accordingly, there is no final judgment in this case to be affirmed or reversed. In the absence of any final judgment, appellants' appeal is "taken from the verdict ... which was not an appealable judgment, [and] the mere mention in the notice of appeal of the ['Order of Denial of Defendants' Motion for Judgment Notwithstanding the...