Marshall v. Gatison

Court of Appeals of Georgia

Marshall v. Gatison

398 S.E.2d 429, 197 Ga. App. 370, 1990 Ga. App. LEXIS 1316

CourtCourt of Appeals of Georgia

DecidedOctober 24, 1990

DocketA90A2127

StatusPublished

Cited by2 cases

This text of 398 S.E.2d 429 (Marshall v. Gatison) 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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Marshall v. Gatison, 398 S.E.2d 429, 197 Ga. App. 370, 1990 Ga. App. LEXIS 1316 (Ga. Ct. App. 1990).

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Opinion

Beasley, Judge.

Defendants Marshall and Smith appeal the denial of their motion to traverse service. Although styled a “motion to traverse service,” the motion sought to vacate a judgment entered for plaintiff on March 23, 1989. Defendants enumerate as error the failure of the trial court to vacate the March 23 judgment and argue that because of the failure to properly serve Smith the court lacked jurisdiction and the judg[371]*371ment was void and cannot stand.

Decided October 24, 1990. William A. Wehunt, for appellants. Hiles & Rowen, Sharon L. Rowen, John E. Klonoski, for appellee.

The substance of a pleading and not mere nomenclature determines its nature. Cotton v. Fed. Land Bank, 246 Ga. 188, 191 (269 SE2d 422) (1980). The defense motion sought to set aside the judg-. ment based upon lack of jurisdiction. OCGA § 9-11-60 (d) (1). As such, OCGA § 5-6-35 (a) (8) controls, providing for discretionary review of such a judgment. By directly appealing and not filing an application for review, appellants have failed to engage the jurisdiction of this court. Ko v. Habersham Fed. Savings Bank, 194 Ga. App. 769 (391 SE2d 723) (1990).

Appeal dismissed.

Deen, P. J., and Pope, J., concur.

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Beasley, Judge.

Defendants Marshall and Smith appeal the denial of their motion to traverse service. Although styled a “motion to traverse service,” the motion sought to vacate a judgment entered for plaintiff on March 23, 1989. Defendants enumerate as error the failure of the trial court to vacate the March 23 judgment and argue that because of the failure to properly serve Smith the court lacked jurisdiction and the judg[371]*371ment was void and cannot stand.

Decided October 24, 1990. William A. Wehunt, for appellants. Hiles & Rowen, Sharon L. Rowen, John E. Klonoski, for appellee.

The substance of a pleading and not mere nomenclature determines its nature. Cotton v. Fed. Land Bank, 246 Ga. 188, 191 (269 SE2d 422) (1980). The defense motion sought to set aside the judg-. ment based upon lack of jurisdiction. OCGA § 9-11-60 (d) (1). As such, OCGA § 5-6-35 (a) (8) controls, providing for discretionary review of such a judgment. By directly appealing and not filing an application for review, appellants have failed to engage the jurisdiction of this court. Ko v. Habersham Fed. Savings Bank, 194 Ga. App. 769 (391 SE2d 723) (1990).

Appeal dismissed.

Deen, P. J., and Pope, J., concur.

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398 S.E.2d 429, 197 Ga. App. 370, 1990 Ga. App. LEXIS 1316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-gatison-gactapp-1990.

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