Cunningham v. Cansler

Court of Appeals of Georgia

Cunningham v. Cansler

181 S.E.2d 922, 123 Ga. App. 614, 1971 Ga. App. LEXIS 1314

CourtCourt of Appeals of Georgia

DecidedApril 6, 1971

Docket46065

StatusPublished

Cited by6 cases

This text of 181 S.E.2d 922 (Cunningham v. Cansler) 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

Cunningham v. Cansler, 181 S.E.2d 922, 123 Ga. App. 614, 1971 Ga. App. LEXIS 1314 (Ga. Ct. App. 1971).

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Opinion

Jordan, Presiding Judge.

This appeal is from an order sustaining the motion of the third-party defendants to dismiss the third-party complaint against them. In this respect we note that the trial judge relied on United States v. Jollimore, 2 FRD 148, to support his action, but Rule 14 (a) of the Federal Rules of Civil [615]*615Procedure in effect at that time included provisions which had been eliminated before the rule was adopted in this State. See the discussion in Koppers Co. v. Parks, 120 Ga. App. 551 (171 SE2d 639).

Argued March 3, 1971 Decided April 6, 1971. Woodruff, Saveli, Lane & Williams, Edward L. Saveli, William S. Goodman, for appellants. Vernon W. Duncan, Frank D. Schaffer, for appellees.

Inasmuch as the order here invoked does not qualify as a final judgment it is appealable only if supported by a 10-day certificate conforming to the requirements of the 1968 amendment to the Appellate Practice Act, Ga. L. 1968, pp. 1072, 1073 (Code Ann. §6-701 (a, 2)). D. Davis & Co. v. Plunkett, 119 Ga. App. 453 (167 SE2d 663).

The certificate is dated November 17, 1970, "Nunc Pro Tunc Monday, November 16, 1970” and purports to certify an order of November 6, 1970. There is nothing in the record to support the assertion of counsel to the effect that the trial judge was "amending” the record by reducing to writing a certificate which had previously existed only as an oral statement so as to reflect accurately what had actually occurred. See Israel v. Joe Redwine Ins. Agency, 120 Ga. App. 14 (169 SE2d 347); and Baxter v. Long, 122 Ga. App. 500 (4) (177 SE2d 712).

The time for a certificate having expired, the nunc pro tunc certificate as here disclosed by the record was without efficacy to support the appeal.

Appeal dismissed.

Quillian and Evans, JJ., concur.

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Jordan, Presiding Judge.

This appeal is from an order sustaining the motion of the third-party defendants to dismiss the third-party complaint against them. In this respect we note that the trial judge relied on United States v. Jollimore, 2 FRD 148, to support his action, but Rule 14 (a) of the Federal Rules of Civil [615]*615Procedure in effect at that time included provisions which had been eliminated before the rule was adopted in this State. See the discussion in Koppers Co. v. Parks, 120 Ga. App. 551 (171 SE2d 639).

Argued March 3, 1971 Decided April 6, 1971. Woodruff, Saveli, Lane & Williams, Edward L. Saveli, William S. Goodman, for appellants. Vernon W. Duncan, Frank D. Schaffer, for appellees.

Inasmuch as the order here invoked does not qualify as a final judgment it is appealable only if supported by a 10-day certificate conforming to the requirements of the 1968 amendment to the Appellate Practice Act, Ga. L. 1968, pp. 1072, 1073 (Code Ann. §6-701 (a, 2)). D. Davis & Co. v. Plunkett, 119 Ga. App. 453 (167 SE2d 663).

The certificate is dated November 17, 1970, "Nunc Pro Tunc Monday, November 16, 1970” and purports to certify an order of November 6, 1970. There is nothing in the record to support the assertion of counsel to the effect that the trial judge was "amending” the record by reducing to writing a certificate which had previously existed only as an oral statement so as to reflect accurately what had actually occurred. See Israel v. Joe Redwine Ins. Agency, 120 Ga. App. 14 (169 SE2d 347); and Baxter v. Long, 122 Ga. App. 500 (4) (177 SE2d 712).

The time for a certificate having expired, the nunc pro tunc certificate as here disclosed by the record was without efficacy to support the appeal.

Appeal dismissed.

Quillian and Evans, JJ., concur.

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181 S.E.2d 922, 123 Ga. App. 614, 1971 Ga. App. LEXIS 1314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-cansler-gactapp-1971.

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