Venable v. Block
| Decision Date | 08 March 1977 |
| Docket Number | No. 53351,No. 3,53351,3 |
| Citation | 233 S.E.2d 878,141 Ga.App. 523 |
| Parties | J. R. VENABLE v. Ruth S. BLOCK |
| Court | Georgia Court of Appeals |
L. C. Chrietzberg, Decatur, for appellant.
Russell L. Adkins, Jr., Marietta, for appellee.
Judgment was entered on a verdict for plaintiff Block against defendant Venable on June 22, 1976. On the 31st day thereafter, July 23, 1976, the defendant filed motions for new trial and for judgment notwithstanding the verdict. On July 30, 1976, the plaintiff filed a motion to strike the defendant's aforesaid motions as being untimely. In an order entered October 15, 1976, the judge refused to rule on the plaintiff's motion to strike, and denied the defendant's motions on the merits. The defendant's appeal from this order and the appellee's motion to dismiss the appeal, raise this issue: can there be a valid appeal in the absence of the filing, within 30 days after entry of an appealable decision or judgment, of a notice of appeal, the obtaining of an extension of time therefor, or the filing of such motion as tolls the 30-day limit for appeal under the provisions of Code Ann. § 6-803 ()? Held :
"The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court." Jordan v. Caldwell, 229 Ga. 343, 344, 191 S.E.2d 530, 531 (1972). Code Ann. § 6-803 provides in part: "A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of . . ., but when a motion for new trial, . . ., or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion." (Emphasis supplied.) Motions for new trial and for judgment n. o. v. are required to be filed within 30 days after entry of the judgment on the verdict, or entry of the judgment where the case was tried without a jury (Code § 70-301 (as amended, Ga.L.1973, pp. 159, 167); Code Ann. § 81A-150(b) (Ga.L.1966, pp. 609, 656; 1967, pp. 226, 237, 246, 248)), and "no extension of time shall be granted for the filing of motions for new trial or for judgment notwithstanding the verdict." Code Ann. § 6-804 (Ga.L.1965, pp. 18, 21). Consistently, then, the words "has been filed" in § 6-803, supra, pertaining to a delaying motion, must mean filed within 30 days after entry of the judgment. To allow untimely filed motions, and thereby toll or delay the time for filing a notice of appeal, would violate the above quoted provisions of Code Ann. § 6-804, prohibiting extensions of time for filing such motions, as well as ignore the further mandate of § 6-804, that requires within 30 days either the filing of a notice of appeal or the obtaining of an extension of time therefor. In this case, the appellant failed either to file a notice of appeal or obtain an extension of time within the 30-day period. This makes the appeal subject to dismissal. Model Cleaners & Laundry v. Per Corp., 127 Ga.App. 559, 194 S.E.2d 258 (1972).
There is a line of cases holding to the effect that, even where a motion for new trial was void, an appeal filed within 30 days after the entry of the order finally disposing of the void motion, is timely filed under Code Ann. § 6-803, supra, so that the court can rule on all remaining enumerations of error other than the denial of the motion. See, e. g., Gold Kist, Inc. v. Stokes, 235 Ga. 643, 221 S.E.2d 49 (1975) and cits. While these cases appear at first blush to control the case sub judice, a closer examination reveals that the motions with which the courts there dealt, were void because they were not prosecuted or were made prematurely (i. e.,...
To continue reading
Request your trial
-
Fairclough v. State
...445, 446, 375 S.E.2d 899 (1988). Compare Crolley v. Johnson, 185 Ga.App. 671, 672-673, 365 S.E.2d 277 (1988); Venable v. Block, 141 Ga.App. 523, 524, 233 S.E.2d 878 (1977). Accordingly, Fairclough timely appealed within 30 days of the trial court's order denying the motion for new trial. Mc......
-
Preferred Risk Ins. Co. v. Boykin
...basis for a ruling on its merits by the trial court. Cf. Bennett v. Caton, 154 Ga.App. 515, 268 S.E.2d 786 (1980); Venable v. Block, 141 Ga.App. 523, 233 S.E.2d 878 (1977). Under this circumstance, unlike the procedural posture which obtained in Pirkle v. Triplett, supra, the failure of the......
-
In re Estate of Dasher
...is a mandatory prerequisite to appellate court jurisdiction. Wood v. Atkinson, supra, 229 Ga. at 179, 190 S.E.2d 46; Venable v. Block, 141 Ga.App. 523, 233 S.E.2d 878 (1977). This rule has been applied even in the most seemingly compelling circumstances. Veasley v. State, 272 Ga. 837, 537 S......
-
Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Service, Inc.
...prerequisite to the attaching of appellate court jurisdiction (Wood v. Atkinson, 229 Ga. 179, 190 S.E.2d 46 (1972); Venable v. Block, 141 Ga.App. 523, 233 S.E.2d 878 (1977)), and it can not be dispensed with upon the ground that counsel did not know the order sought to be appealed had been ......