Steele v. Cincinnati Ins. Co.

• Decision Date: 31 January 1984
• Docket Number: No. 40277,40277
• Citation: 311 S.E.2d 470,252 Ga. 58
• Parties: STEELE v. CINCINNATI INSURANCE COMPANY.
• Court: Georgia Supreme Court

Page 470

311 S.E.2d 470

252 Ga. 58

STEELE v. CINCINNATI INSURANCE COMPANY.

No. 40277.

Supreme Court of Georgia.

Jan. 31, 1984.

Michael D. Goodman, Clifford J. Steele, Atlanta, for Clifford J. steele.

Edward L. Savell, Scott E. Tinnon, Atlanta, for Cincinnati Ins. Co.

SMITH, Justice.

On October 21, 1982, in the Superior Court of Fulton County, appellee Cincinnati Insurance Company's motion for directed verdict was granted, and judgment was entered on October 25, 1982. Appellant Steele filed a notice of appeal on November 22, 1982, erroneously citing the date of the decision to be appealed as October 23, 1982. The notice also stated that the appeal was from "the order of this court ... granting defendant's motion for a directed verdict." Relying on OCGA § 5-6-38(a), (Code Ann. § 6-803) as construed by this court in Smith v. Sorrough, 226 Ga. 744, 177 S.E.2d 246 (1970) and Hurst v. Starr, 226 Ga. 42, 172 S.E.2d 604 (1970), the Court of Appeals ruled that an order granting a motion for a directed verdict is not an appealable judgment and dismissed the appeal. Steele v. Cincinnati Ins. Co., 167 Ga.App. 550, 307 S.E.2d 44 (1983). We granted Steele's petition for writ of certiorari to the Court of Appeals to determine whether Steele's appeal was correctly dismissed. We now reverse.

In Smith and Hurst, supra, the notice of appeal stated that it was from an order sustaining a motion for directed verdict. We ruled that the sustaining of a motion for directed verdict is not an appealable judgment and said that dismissal was proper.

In Gillen v. Bostick, 234 Ga. 308, 215 S.E.2d 676 (1975), we reviewed an order holding appellant in willfull contempt of court where the trial court's order finding appellant in contempt was dated December 20, 1974. Appellant's notice of appeal was filed January 7, 1975, but judgment was not entered until January 15, 1975. We recognized there that under prior decisions of this court (however neither Smith nor Hurst were addressed) such a premature filing of a notice of appeal would be ineffective to vest jurisdiction of the appeal in this court. Id. at 310, 215 S.E.2d 676. However, we went on to conclude that in light of the language of the Appellate Practice Act, OCGA § 5-6-30 (Code Ann. § 6-905) proposing liberal construction of the rules of procedure so as to bring about a decision on the merits of every case appealed and to avoid dismissal, those earlier cases were overruled. We also discussed and accepted the reasoning of Markham v. Holt, 369 F.2d 940 (5th Cir.1966) and 9 Moore's Federal Practice 119, § 110.08 (1974), which agreed that the rule requiring judgment and entry of judgment before an appeal can be taken is better interpreted to prevent loss of the right of appeal than to facilitate loss.

We think that similar reasoning can be profitably applied to the case before us. There is no evidence that in Gillen the appellant misnamed the action appealed from and labeled it an order instead of a judgment entered on the order as Steele did here. Nor did Steele file his notice before entry of judgment, as did the appellant in Gillen. Otherwise, however, these cases are sufficiently analogous to support consistent holdings and, despite the decisions in Hurst and Smith, we conclude that the better result is to reverse the Court of Appeals and follow the route marked by Gillen toward less technical and more expeditious handling of cases involving minor procedural errors. Final judgment had been rendered in this case and there was no longer any issue pending in the trial court. The notice of appeal as filed was, even though...