Littlefield v. Smith

Court of Appeals of Georgia

Littlefield v. Smith

356 S.E.2d 746, 182 Ga. App. 712, 1987 Ga. App. LEXIS 1777

CourtCourt of Appeals of Georgia

DecidedApril 23, 1987

Docket73871

StatusPublished

Cited by1 cases

This text of 356 S.E.2d 746 (Littlefield v. Smith) 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.

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Littlefield v. Smith, 356 S.E.2d 746, 182 Ga. App. 712, 1987 Ga. App. LEXIS 1777 (Ga. Ct. App. 1987).

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Opinion

Beasley, Judge.

Plaintiff claimed $131.44 from defendants for their failure to reimburse her “for the use of electricity and deposit.” The Magistrate Court of Hall County dismissed the complaint on the basis that the matter had been previously litigated and adjudicated. On appeal to the state court the claim was dismissed for failure to prosecute and because the matter was res judicata. Plaintiff appeals that decision.

1. This is an appeal to the state court which under OCGA § 15-10-41 is treated the same as an appeal to the superior court under OCGA § 5-3-29, encompassing a de novo investigation. It would therefore fit within the bounds of OCGA § 5-6-35 (a) (1) except that section refers only to “[a]ppeals from decisions of the superior courts.” Although logically this type of appeal should also be under the discre *713 tionary route of OCGA § 5-6-35, the legislature has not amended that section to include state courts. Thus, a direct appeal is permissible.

Decided April 23, 1987. Geneva Littlefield, pro se. Dwight Smith, Kathy Smith, pro se.

2. Plaintiff contends that the trial clerk promised to inform her when the case would be tried; that her absence, and failure to prosecute, resulted not from her neglect but solely from the failure to give her the promised notice. However, no complaint is made as to the other basis of the ruling which was that the issue was res judicata — a matter settled by judgment.

Since an appellant has the burden of showing error by the record, Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981), and Dosier v. Central of Ga. R. Co., 177 Ga. App. 393, 400 (7) (339 SE2d 619) (1985), nothing appearing to the contrary, we presume the holding on this issue was correct. King v. Skinner, 101 Ga. App. 102, 103 (2) (112 SE2d 789) (1960); Saliba v. Saliba, 201 Ga. 681, 682 (1) (40 SE2d 732) (1946). A decision right for any reason will not be set aside. Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978). Therefore, it makes no difference whether plaintiff should or should not have been given notice of the trial because she must lose on the merits of her complaint.

Judgment affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.

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Beasley, Judge.

Plaintiff claimed $131.44 from defendants for their failure to reimburse her “for the use of electricity and deposit.” The Magistrate Court of Hall County dismissed the complaint on the basis that the matter had been previously litigated and adjudicated. On appeal to the state court the claim was dismissed for failure to prosecute and because the matter was res judicata. Plaintiff appeals that decision.

1. This is an appeal to the state court which under OCGA § 15-10-41 is treated the same as an appeal to the superior court under OCGA § 5-3-29, encompassing a de novo investigation. It would therefore fit within the bounds of OCGA § 5-6-35 (a) (1) except that section refers only to “[a]ppeals from decisions of the superior courts.” Although logically this type of appeal should also be under the discre *713 tionary route of OCGA § 5-6-35, the legislature has not amended that section to include state courts. Thus, a direct appeal is permissible.

Decided April 23, 1987. Geneva Littlefield, pro se. Dwight Smith, Kathy Smith, pro se.

2. Plaintiff contends that the trial clerk promised to inform her when the case would be tried; that her absence, and failure to prosecute, resulted not from her neglect but solely from the failure to give her the promised notice. However, no complaint is made as to the other basis of the ruling which was that the issue was res judicata — a matter settled by judgment.

Since an appellant has the burden of showing error by the record, Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981), and Dosier v. Central of Ga. R. Co., 177 Ga. App. 393, 400 (7) (339 SE2d 619) (1985), nothing appearing to the contrary, we presume the holding on this issue was correct. King v. Skinner, 101 Ga. App. 102, 103 (2) (112 SE2d 789) (1960); Saliba v. Saliba, 201 Ga. 681, 682 (1) (40 SE2d 732) (1946). A decision right for any reason will not be set aside. Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978). Therefore, it makes no difference whether plaintiff should or should not have been given notice of the trial because she must lose on the merits of her complaint.

Judgment affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.

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356 S.E.2d 746, 182 Ga. App. 712, 1987 Ga. App. LEXIS 1777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/littlefield-v-smith-gactapp-1987.

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