Eubanks v. Wilbanks

74 S.E.2d 745, 87 Ga. App. 632, 1953 Ga. App. LEXIS 815

• Court: Court of Appeals of Georgia
• Decided: February 14, 1953
• Docket: 34295, 34320
• Status: Published

Opinion

Worrill, J.

1. “Where an appeal to the appellate division of the municipal court of Atlanta [now the Civil Court of Fulton County] is made within ten days of a judgment upon a motion for new trial, but beyond fifteen days from the date of the final judgment rendered by the trial judge upon the trial, the appellate division has jurisdiction only to review the judgment upon the motion for new trial; and where there has been an order overruling the motion for new trial, and in the appeal no error is assigned on the final order of the trial judge in .overruling the motion for new trial, the appeal is a nullity, and is not amendable.” Valdes v. Peoples Loan & Savings Co., 60 Ga. App. 76 (2 S. E. 2d, 755). See also Jeter v. Turman-Brown Co., 169 Ga. 30 (149 S. E. 555). The language of the appeal in this case did not constitute an assignment of error on the order of the trial judge overruling the motion for new trial (Branon v. Ellbee Pictures Corp., 40 Ga. App. 450 (2), 150 S. E. 168), and the Appellate Division of the Civil Court of Fulton County erred in overruling the motion to dismiss the appeal on the 5th ground therein set forth, as complained of in the cross-bill of exceptions.

2. The decision above rendered on the cross-bill of exceptions is controlling and necessarily brings about a final disposition of the case which is adverse to the plaintiff in error in the main bill; and since a reversal of the case on the main bill would not in any manner benefit the plaintiff in error therein, the main bill of exceptions is dismissed. Rives v. Rives, 113 Ga. 392 (1), 398 (39 S. E. 79); Gunn v. Airbank of America, 76 Ga. App. 380 (2) (45 S. E. 2d, 789).

Judgment reversed on the cross-bill of exceptions; main bill dismissed.

Sutton, C. J., and Felton J., concur.