Marty Smith v. Intown Consulting Group, LLC

• Court: Court of Appeals of Georgia
• Decided: November 21, 2016
• Docket: A17A0514
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 09, 2016

The Court of Appeals hereby passes the following order:

A17A0514. MARTY SMITH v. INTOWN CONSULTING GROUP, LLC.

This case began as a dispossessory proceeding in magistrate court. After the magistrate court entered judgment in favor of Intown Consulting Group, LLC, Marty Smith appealed to the superior court. On August 4, 2016, the superior court entered an order compelling Smith to pay rent into the registry of the court pending final resolution of the case. On September 7, 2016, Smith filed a notice of appeal to this Court. We lack jurisdiction for two reasons. First, a direct appeal is not authorized here. Ordinarily, a party seeking to appeal a superior court order reviewing a magistrate court decision must file an application for discretionary appeal. See OCGA § 5-6-35 (a) (1); Bullock v. Sand, 260 Ga. App. 874, 875 (581 SE2d 333) (2003). But where, as here, the case remains pending in the superior court, the party must follow the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b), including obtaining a certificate of immediate review from the superior court. See Bailey v. Bailey, 266 Ga. 832, 832- 833 (471 SE2d 213) (1996); Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588-589 (1) (408 SE2d 103) (1991); Gray v. Springs, 224 Ga. App. 427 (481 SE2d 3) (1997). Smith failed to follow the proper appellate procedure. Second, OCGA § 44-7-56 provides that an appeal from a dispossessory judgment must be filed within seven days of the date the judgment was entered. Smith filed his notice of appeal 34 days after entry of the superior court order he wishes to appeal. Therefore, the appeal is untimely. For these reasons, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 11/09/2016 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.