Burson v. Foster

Court of Appeals of Georgia

Burson v. Foster

179 S.E.2d 678, 123 Ga. App. 168, 1971 Ga. App. LEXIS 1145

CourtCourt of Appeals of Georgia

DecidedJanuary 5, 1971

Docket45718

StatusPublished

Cited by2 cases

This text of 179 S.E.2d 678 (Burson v. Foster) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burson v. Foster, 179 S.E.2d 678, 123 Ga. App. 168, 1971 Ga. App. LEXIS 1145 (Ga. Ct. App. 1971).

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Opinion

Jordan, Presiding Judge.

The time for entry of an appeal to a court from a decision of a hearing officer of the Department of Public Safety purportedly taken under the provisions of Ga. L. 1937, pp. 322, 349, as amended, Ga. L. 1943, pp. 196, 201, Ga. L. 1951, pp. 598, 605 (Code Ann. § 92A-423), is controlled by the provisions of Code § 6-202, requiring entry of the appeal "within four days from the date of the judgment complained of.” The appeal, as filed in the lower court on June 25, 1970, alleges that the ruling "occurred at the time and place set forth [169]*169in Exhibit A” which bears a date of June 17, 1970, and the Director, in answering the appeal, admits this allegation. The date appearing on Exhibit A is controlling. Moreover, we note that the trial judge refers to the ruling only in terms of a ruling made on June 17, 1970. Absent any proof or admission to overcome the affirmative disclosure of the pleadings that the appeal was not timely entered, the judge of the lower court had no jurisdiction to consider the appeal, except for the purpose of dismissal.

Submitted October 6, 1970 Decided January 5, 1971. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion 0. Gordon, Charles B. Merrill, Jr., Assistant Attorneys General, for appellant.

Judgment reversed.

Eberhardt and Pannell, JJ., concur.

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Jordan, Presiding Judge.

The time for entry of an appeal to a court from a decision of a hearing officer of the Department of Public Safety purportedly taken under the provisions of Ga. L. 1937, pp. 322, 349, as amended, Ga. L. 1943, pp. 196, 201, Ga. L. 1951, pp. 598, 605 (Code Ann. § 92A-423), is controlled by the provisions of Code § 6-202, requiring entry of the appeal "within four days from the date of the judgment complained of.” The appeal, as filed in the lower court on June 25, 1970, alleges that the ruling "occurred at the time and place set forth [169]*169in Exhibit A” which bears a date of June 17, 1970, and the Director, in answering the appeal, admits this allegation. The date appearing on Exhibit A is controlling. Moreover, we note that the trial judge refers to the ruling only in terms of a ruling made on June 17, 1970. Absent any proof or admission to overcome the affirmative disclosure of the pleadings that the appeal was not timely entered, the judge of the lower court had no jurisdiction to consider the appeal, except for the purpose of dismissal.

Submitted October 6, 1970 Decided January 5, 1971. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion 0. Gordon, Charles B. Merrill, Jr., Assistant Attorneys General, for appellant.

Judgment reversed.

Eberhardt and Pannell, JJ., concur.

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179 S.E.2d 678, 123 Ga. App. 168, 1971 Ga. App. LEXIS 1145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burson-v-foster-gactapp-1971.

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