Coogler v. Berry

Court of Appeals of Georgia

Coogler v. Berry

161 S.E.2d 428, 117 Ga. App. 614, 1968 Ga. App. LEXIS 1165

CourtCourt of Appeals of Georgia

DecidedApril 8, 1968

Docket43436, 43437

StatusPublished

Cited by6 cases

This text of 161 S.E.2d 428 (Coogler v. Berry) 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

Coogler v. Berry, 161 S.E.2d 428, 117 Ga. App. 614, 1968 Ga. App. LEXIS 1165 (Ga. Ct. App. 1968).

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Opinion

Eberhardt, Judge.

Where, pending an action the defendant died and the executor of his last will and testament was substituted as party defendant, as provided by Code Ann. § 81A-125, the *615 person named as executor is not individually a party to the action and he may not appeal from a judgment entered adversely to the executor. “[0]nly a party to the case can appeal from a judgment” (McCoy v. Sasnett, 77 Ga. App. 819, 821 (49 SE2d 913)), or one who has sought to become a party, as by way of intervention under Code Ann. § 81A-124, and has been denied the right to do so. And see White v. Williamson, 44 Ga. App. 428 (2) (161 SE 654); Stewart v. Stewart, 106 Ga. App. 211 (126 SE2d 716); Compton v. Weekes, 107 Ga. App. 283 (129 SE2d 824); Alexander v. Fontenot, 113 Ga. App. 36 (147 SE2d 25); Eubank v. Barber-Colman Co., 115 Ga. App. 217 (1) (154 SE2d 638). The notice of appeal cannot be amended to substitute a new party. Bivens v. Todd, 222 Ga. 84 (2) (148 SE2d 424).

Submitted February 5, 1968 Decided April 8, 1968. Henning, Chambers & Mabry, Edward J. Henning, for appellant. Hutcheson & Kilpatrick, Lee Hutcheson, Davis & Stringer, Thomas 0. Davis, for appellees.

Consequently, where the only notice of appeal in these cases was entered in his individual capacity by the person named as executor of the will of the deceased defendant, no valid appeal pends before us and the appeals must be

Dismissed.

Felton, C. J., and Whitman, J., concur.

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Eberhardt, Judge.

Where, pending an action the defendant died and the executor of his last will and testament was substituted as party defendant, as provided by Code Ann. § 81A-125, the *615 person named as executor is not individually a party to the action and he may not appeal from a judgment entered adversely to the executor. “[0]nly a party to the case can appeal from a judgment” (McCoy v. Sasnett, 77 Ga. App. 819, 821 (49 SE2d 913)), or one who has sought to become a party, as by way of intervention under Code Ann. § 81A-124, and has been denied the right to do so. And see White v. Williamson, 44 Ga. App. 428 (2) (161 SE 654); Stewart v. Stewart, 106 Ga. App. 211 (126 SE2d 716); Compton v. Weekes, 107 Ga. App. 283 (129 SE2d 824); Alexander v. Fontenot, 113 Ga. App. 36 (147 SE2d 25); Eubank v. Barber-Colman Co., 115 Ga. App. 217 (1) (154 SE2d 638). The notice of appeal cannot be amended to substitute a new party. Bivens v. Todd, 222 Ga. 84 (2) (148 SE2d 424).

Submitted February 5, 1968 Decided April 8, 1968. Henning, Chambers & Mabry, Edward J. Henning, for appellant. Hutcheson & Kilpatrick, Lee Hutcheson, Davis & Stringer, Thomas 0. Davis, for appellees.

Consequently, where the only notice of appeal in these cases was entered in his individual capacity by the person named as executor of the will of the deceased defendant, no valid appeal pends before us and the appeals must be

Dismissed.

Felton, C. J., and Whitman, J., concur.

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Bluebook (online)

161 S.E.2d 428, 117 Ga. App. 614, 1968 Ga. App. LEXIS 1165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coogler-v-berry-gactapp-1968.

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