Cavender v. First National Bank

Court of Appeals of Georgia

Cavender v. First National Bank

327 S.E.2d 789, 173 Ga. App. 660, 1985 Ga. App. LEXIS 1653

CourtCourt of Appeals of Georgia

DecidedMarch 5, 1985

Docket69295, 69296

StatusPublished

Cited by2 cases

This text of 327 S.E.2d 789 (Cavender v. First National Bank) 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

Cavender v. First National Bank, 327 S.E.2d 789, 173 Ga. App. 660, 1985 Ga. App. LEXIS 1653 (Ga. Ct. App. 1985).

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Opinion

Pope, Judge.

Appellant separately appeals from two orders, entered after a hearing, each granting to appellee a writ of possession of a specified motor vehicle pursuant to OCGA § 44-14-234. Held:

Based upon this court’s opinion in Smalls v. Harrison, 150 Ga. App. 473 (258 SE2d 227) (1979), these consolidated appeals must be dismissed. “Issuance of a writ of possession does not affect the merits of the case but only the right to possession pending a final decision on the merits. [OCGA § 44-14-234 (4)]. There being no certificate[s] of immediate review the instant [appeals are] premature. Foskey v. Bank of Alapaha, 147 Ga. App. 541 (249 SE2d 346) [(1978)]; Sumner v. Adel Banking Co., 241 Ga. 563 (246 SE2d 680) [(1978)].” Id. at 474. In this case, appellant filed a demand for jury trial. Therefore, after such jury trial, direct appeal is possible from the resulting entry of judgment.

“[F]or the benefit of the bench and bar we reiterate the pertinent statements contained in Coppage v. Mellon Bank, 142 Ga. App. 12 (2) (234 SE2d 824) [(1977)] (disapproved on other procedural grounds, Sumner v. Adel Banking Co., supra). ‘The defendant shall be required to pay into the registry of the court all past due amounts “admitted” due and all amounts of “unaccelerated” payments which become due after the issuance of the summons.’ Thus, the defendant is not required to pay into the registry of the court disputed past due amounts or accelerated payments. Such issues must be resolved on trial and not on a hearing purportedly under [OCGA § 44-14-234]. Jordan v. Farmers & Merchants Bank, 138 Ga. App. 43, 44 (225 SE2d 498) [(1976)].” Smalls v. Harrison, supra at 474.

Appeals dismissed.

Banke, C. J., and Benham, J., concur. Alfred D. Groover, for appellee.

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Pope, Judge.

Appellant separately appeals from two orders, entered after a hearing, each granting to appellee a writ of possession of a specified motor vehicle pursuant to OCGA § 44-14-234. Held:

Based upon this court’s opinion in Smalls v. Harrison, 150 Ga. App. 473 (258 SE2d 227) (1979), these consolidated appeals must be dismissed. “Issuance of a writ of possession does not affect the merits of the case but only the right to possession pending a final decision on the merits. [OCGA § 44-14-234 (4)]. There being no certificate[s] of immediate review the instant [appeals are] premature. Foskey v. Bank of Alapaha, 147 Ga. App. 541 (249 SE2d 346) [(1978)]; Sumner v. Adel Banking Co., 241 Ga. 563 (246 SE2d 680) [(1978)].” Id. at 474. In this case, appellant filed a demand for jury trial. Therefore, after such jury trial, direct appeal is possible from the resulting entry of judgment.

“[F]or the benefit of the bench and bar we reiterate the pertinent statements contained in Coppage v. Mellon Bank, 142 Ga. App. 12 (2) (234 SE2d 824) [(1977)] (disapproved on other procedural grounds, Sumner v. Adel Banking Co., supra). ‘The defendant shall be required to pay into the registry of the court all past due amounts “admitted” due and all amounts of “unaccelerated” payments which become due after the issuance of the summons.’ Thus, the defendant is not required to pay into the registry of the court disputed past due amounts or accelerated payments. Such issues must be resolved on trial and not on a hearing purportedly under [OCGA § 44-14-234]. Jordan v. Farmers & Merchants Bank, 138 Ga. App. 43, 44 (225 SE2d 498) [(1976)].” Smalls v. Harrison, supra at 474.

Appeals dismissed.

Banke, C. J., and Benham, J., concur. Alfred D. Groover, for appellee.

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327 S.E.2d 789, 173 Ga. App. 660, 1985 Ga. App. LEXIS 1653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavender-v-first-national-bank-gactapp-1985.

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