Davis v. Davis

Court of Appeals of Georgia

Davis v. Davis

229 S.E.2d 81, 139 Ga. App. 599, 1976 Ga. App. LEXIS 1901

CourtCourt of Appeals of Georgia

DecidedSeptember 8, 1976

Docket52375; 52376

StatusPublished

This text of 229 S.E.2d 81 (Davis v. Davis) 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

Davis v. Davis, 229 S.E.2d 81, 139 Ga. App. 599, 1976 Ga. App. LEXIS 1901 (Ga. Ct. App. 1976).

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Opinion

Deen, Presiding Judge.

1. This appeal is from a judgment of the trial court setting aside on motion a default judgment entered against a garnishee. Such an order is not a final judgment. Finch v. Kilgore, 120 Ga. App. 320 (170 SE2d 304); Wright v. Wright, 139 Ga. App. 60. There is no certificate of immediate review and no application for an appeal under Code Ann. § 6-701 (a). The appeal in the main case is premature and nonreviewable. As to the constitutionality of the statute on which the garnishment is based, see Coursin v. Harper, 236 Ga. 729 (225 SE2d 428).

2. In the cross appeal, the defendant complains of the denial of his motion for new trial following a judgment entered on a jury verdict on November 14, 1974. The motion for new trial, however, was not filed until March 3, 1975, more than 30 days after the verdict and final judgment, on the trial of an affidavit of illegality to an execution and levy. The appellant questioned this date by motion, and the trial court, after hearing evidence, held that the date shown on the papers and docket was in fact correct. This finding, not having been made the subject of an enumeration of error, is conclusive. Thus the motion for new trial was not filed within the time allowed so as to [600]*600make it a vehicle for review of the 1974 judgment in the main case. Code Ann. § 6-803; Code § 70-301; Dukes v. Ralston Purina Co., 127 Ga. App. 696 (194 SE2d 630). Nor can the denomination of case no. 52376 as a cross appeal help this appellant. The notice of appeal, dated November 20,1975, is from a judgment denying the motion for new trial (apparently on the grounds above stated) which judgment was dated October 2, 1975, more than 30 days prior thereto, and the date of the notice of appeal in this case is November 20,1975, more than 15 days from July 3, 1975, when the notice of appeal and service thereof was made in the main case.

Argued July 14, 1976 Decided September 8, 1976 Rehearing denied September 22, 1976

in case no. 52375.

Marvin T. Morrow, for appellant. Walter E. Baker, Jr., Whipple & Arnold, L. A. Whipple, Alvin W. Arnold, for appellee.

Appeals dismissed in both cases.

Quillian and Webb, JJ., concur.

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Deen, Presiding Judge.

1. This appeal is from a judgment of the trial court setting aside on motion a default judgment entered against a garnishee. Such an order is not a final judgment. Finch v. Kilgore, 120 Ga. App. 320 (170 SE2d 304); Wright v. Wright, 139 Ga. App. 60. There is no certificate of immediate review and no application for an appeal under Code Ann. § 6-701 (a). The appeal in the main case is premature and nonreviewable. As to the constitutionality of the statute on which the garnishment is based, see Coursin v. Harper, 236 Ga. 729 (225 SE2d 428).

2. In the cross appeal, the defendant complains of the denial of his motion for new trial following a judgment entered on a jury verdict on November 14, 1974. The motion for new trial, however, was not filed until March 3, 1975, more than 30 days after the verdict and final judgment, on the trial of an affidavit of illegality to an execution and levy. The appellant questioned this date by motion, and the trial court, after hearing evidence, held that the date shown on the papers and docket was in fact correct. This finding, not having been made the subject of an enumeration of error, is conclusive. Thus the motion for new trial was not filed within the time allowed so as to [600]*600make it a vehicle for review of the 1974 judgment in the main case. Code Ann. § 6-803; Code § 70-301; Dukes v. Ralston Purina Co., 127 Ga. App. 696 (194 SE2d 630). Nor can the denomination of case no. 52376 as a cross appeal help this appellant. The notice of appeal, dated November 20,1975, is from a judgment denying the motion for new trial (apparently on the grounds above stated) which judgment was dated October 2, 1975, more than 30 days prior thereto, and the date of the notice of appeal in this case is November 20,1975, more than 15 days from July 3, 1975, when the notice of appeal and service thereof was made in the main case.

Argued July 14, 1976 Decided September 8, 1976 Rehearing denied September 22, 1976

in case no. 52375.

Marvin T. Morrow, for appellant. Walter E. Baker, Jr., Whipple & Arnold, L. A. Whipple, Alvin W. Arnold, for appellee.

Appeals dismissed in both cases.

Quillian and Webb, JJ., concur.

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229 S.E.2d 81, 139 Ga. App. 599, 1976 Ga. App. LEXIS 1901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-davis-gactapp-1976.

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