Attwell v. Sears, Roebuck & Co.

Court of Appeals of Georgia

Attwell v. Sears, Roebuck & Co.

375 S.E.2d 631, 189 Ga. App. 363, 1988 Ga. App. LEXIS 1389

Court of Appeals of Georgia·Decided November 3, 1988·No. 77618·Published

Opinion

McMurray, Presiding Judge.

This appeal is from an order of the State Court of Fulton County holding appellant in contempt of court for failing to comply with an order requiring him to appear for a post-judgment deposition.¹ Held:

1. In his first enumeration of error, appellant contends “[t]he order adjudging [him] in contempt is insufficient in law and should be reversed.” We do not agree.

“OCGA § 15-7-4 (5) . . . vests State Courts with jurisdiction to punish ‘contempts by fine not exceeding $500 or by imprisonment not exceeding 20 days, or both.’ [Cit.]” Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151 (356 SE2d 202). In the case sub judice, the state court’s contempt order of June 16, 1988, in addition to finding defendant in [364]*364contempt for his failure to appear as ordered in a prior order of the court, required defendant to “appear for his deposition . . . [and] to pay $250.00 in attorney’s fees, said sum to be paid on or before taking his deposition.” This penalty did not exceed the state court’s jurisdiction under OCGA § 15-7-4 (5). See OCGA § 9-11-37 (b) and Carey Canada, Inc. v. Hinely, 257 Ga. 150, supra.

Decided November 3, 1988 — Rehearing denied November 21, 1988 Joseph J. Attwell, pro se. Goodman, Hudnall & McManus, Lauren J. Larmer, for appellee.

2. In his second enumeration of error, appellant contends “[t]he trial court erred in not vacating the default judgment and dismissing the cause.”

This appeal is not from an order denying appellant’s motion to set aside (designated by appellant as “Motion of Defendant to Vacate Default Judgment”). This is an appeal from the trial court’s order holding appellant in contempt of court. Consequently, this court has no jurisdiction to consider appellant’s second enumeration of error. See Lewis v. Sun Mgt., 182 Ga. App. 560 (356 SE2d 526).

Judgment affirmed.

Pope and Benham, JJ., concur.

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McMurray, Presiding Judge.

This appeal is from an order of the State Court of Fulton County holding appellant in contempt of court for failing to comply with an order requiring him to appear for a post-judgment deposition.¹ Held:

1. In his first enumeration of error, appellant contends “[t]he order adjudging [him] in contempt is insufficient in law and should be reversed.” We do not agree.

“OCGA § 15-7-4 (5) . . . vests State Courts with jurisdiction to punish ‘contempts by fine not exceeding $500 or by imprisonment not exceeding 20 days, or both.’ [Cit.]” Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151 (356 SE2d 202). In the case sub judice, the state court’s contempt order of June 16, 1988, in addition to finding defendant in [364]*364contempt for his failure to appear as ordered in a prior order of the court, required defendant to “appear for his deposition . . . [and] to pay $250.00 in attorney’s fees, said sum to be paid on or before taking his deposition.” This penalty did not exceed the state court’s jurisdiction under OCGA § 15-7-4 (5). See OCGA § 9-11-37 (b) and Carey Canada, Inc. v. Hinely, 257 Ga. 150, supra.

Decided November 3, 1988 — Rehearing denied November 21, 1988 Joseph J. Attwell, pro se. Goodman, Hudnall & McManus, Lauren J. Larmer, for appellee.

2. In his second enumeration of error, appellant contends “[t]he trial court erred in not vacating the default judgment and dismissing the cause.”

This appeal is not from an order denying appellant’s motion to set aside (designated by appellant as “Motion of Defendant to Vacate Default Judgment”). This is an appeal from the trial court’s order holding appellant in contempt of court. Consequently, this court has no jurisdiction to consider appellant’s second enumeration of error. See Lewis v. Sun Mgt., 182 Ga. App. 560 (356 SE2d 526).

Judgment affirmed.

Pope and Benham, JJ., concur.

Attwell v. Sears, Roebuck & Co., 375 S.E.2d 631, 189 Ga. App. 363, 1988 Ga. App. LEXIS 1389 (Ga. Ct. App. 1988).

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375 S.E.2d 631 (Attwell v. Sears, Roebuck & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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