Annette C. Howell v. Beauly, LLC.

• Court: Court of Appeals of Georgia
• Decided: December 25, 2014
• Docket: A15D0169
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 19, 2014

The Court of Appeals hereby passes the following order:

A15D0169. ANNETTE C. HOWELL et al. v. BEAULY, LLC.

This case began as a dispossessory proceeding brought by Beauly, LLC., in the Magistrate Court of DeKalb County. Defendant Annette Howell filed an answer and counterclaims in magistrate court. It appears that Beauly voluntarily dismissed its action against Howell, and Howell’s counterclaims were dismissed for want of prosecution. Howell attempted to appeal the dismissal of her counterclaims, but on October 28, 2014, the DeKalb County Superior Court dismissed her appeal because no party may appeal from a dismissal due to want of prosecution except by certiorari. See OCGA § 15-10-41 (b) (2). On December 1, 2014, Howell filed this application for discretionary appeal from that dismissal. We lack jurisdiction. Generally, an application for discretionary appeal shall be filed within 30 days of entry of the order sought to be appealed. OCGA § 5-6-35 (d). But the underlying subject matter of an appeal generally controls over the relief sought in determining the proper appellate procedure. Rebich v. Miles, 264 Ga. 467, 467-468 (448 SE2d 192) (1994). The underlying subject matter of this discretionary application is an order entered in a dispossessory action. OCGA § 44-7-56, pertaining to dispossessory actions, states that “[a]ny judgment by the trial court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal shall be filed within seven days of the date such judgment was entered.” Because Howell did not file her application for discretionary appeal within seven days of the date of entry of the order she seeks to appeal, this court lacks appellate jurisdiction over this application, and it is hereby DISMISSED. Court of Appeals of the State of Georgia 12/19/2014 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.