Drake v. Clutter

391 S.E.2d 473, 194 Ga. App. 644, 1990 Ga. App. LEXIS 279

• Court: Court of Appeals of Georgia
• Decided: February 23, 1990
• Docket: A90A0053
• Status: Published

Opinion

Banke, Presiding Judge.

The appellant, Paul Drake, filed suit against the appellee, Tracy Clutter, seeking to recover possession of a Ford Mustang automobile. At the conclusion of a non-jury trial, the trial court found that Glut ter was entitled to possession of the vehicle but ordered her to make regular lease payments to the appellant. The court entered its judgment on July 13, 1989, and on July 20, 1989, entered findings of fact and conclusions of law as an addendum to the judgment. The appellant filed a motion for new trial on July 27, 1989, and a hearing was scheduled on the motion for September 11, 1989. However, on September 7, 1989, prior to the scheduled hearing date, the appellant filed a notice of appeal. On September 11, 1989, the trial court dismissed the motion for new trial on the ground that it had lost jurisdiction of the case because of the filing of the notice of appeal. No appeal was taken from the latter order. Held:

Decided February 23, 1990. Oxendine & Associates, John W. Oxendine, for appellant. Tracy Clutter, pro se. Richardson, Chenggis & Constantinides, George G. Chenggis, for appellee.

In Dept. of Transp. v. Rudeseal, 148 Ga. App. 179, 180 (251 SE2d 11) (1978), we held that “ ‘[a] notice of appeal from the judgment, filed while a motion for new trial is pending, and unaccompanied by a proper certificate for immediate review, confers no jurisdiction in the appellate court and results in a dismissal of the appeal.’ ” While it follows that the trial court was mistaken in its conclusion that it had lost jurisdiction to rule on the motion for new trial in the present case, it also follows that we are without jurisdiction to consider the present appeal.

Appeal dismissed.

Birdsong and Cooper, JJ., concur.