Newton v. K. B. Property Management of Georgia, Inc.

306 S.E.2d 5, 166 Ga. App. 901, 1983 Ga. App. LEXIS 2371

• Court: Court of Appeals of Georgia
• Decided: May 13, 1983
• Docket: 65691
• Status: Published

Opinions

Birdsong, Judge.

This appeal, as does its companion (Case No. 65720), involves a complicated set of complaints, counter-claims, third-party complaints and cross-actions, and a multitude of parties in two related lawsuits. The appeal enumerates as error the grant of summary judgment to two defendants, Barton & Ludwig and Fickling & Walker.

The record shows that summary judgments were granted in the case sub judice to Barton & Ludwig and Fickling & Walker in Fulton Civil Action No. 67346 on July 2, 1982. Summary judgment was granted in the companion case to Kosco, Inc., in Fulton Civil Action No. 71539 on August 6,1982. The appellants in the companion case filed notice of appeal following the August 6 summary judgment to Kosco, Inc., on September 7,1982, the Tuesday after Labor Day. But appellants in the instant case did not file notice of appeal of the July 2 summary judgments to Barton & Ludwig and Fickling & Walker in Case No. 67346 until September 15, 1982, by filing an “Amended Notice of Appeal,” thereby seeking to incorporate in the September 7 notice of appeal a notice of appeal to the July 2 judgment. The parties in both appeals have attempted to consolidate the record in the two cases and have sought to have them dealt with as a single appeal “as the issues are virtually identical.”

Decided May 13, 1983 Rehearing denied June 16, 1983. Andrew R. Kirschner, for appellants. John C. Porter, Jr., Harmon W. Caldwell, Jr., for appellees.

In their brief, appellants Newton and Kaplan state: “By agreement of the parties, there is no issue concerning timeliness of the appeal.” The appellees Barton & Ludwig and Fickling & Walker apparently agree, since they proceed to argue the correctness of the summary judgment grant in thirty-five pages of brief, covering very complicated issues.

This court has no jurisdiction to entertain an appeal filed more than 30 days after the entry of the judgment appealed from, where no proper extension of time for filing has been granted. OCGA §§ 5-6-38, 5-6-39 (Code Ann. §§ 6-803, 6-804). Jurisdiction of this court is conferred by the Constitution of this state and by statute. Jordan v. Caldwell, 229 Ga. 343, 344 (191 SE2d 530); Mayo v. State, 148 Ga. App. 213, 214 (251 SE2d 80). Our jurisdiction is given by law and cannot be conferred by consent or waiver of the parties. Smith v. Upshaw, 217 Ga. 703, 704 (124 SE2d 751); Griffin v. Nix, 33 Ga. App. 136 (125 SE 732). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction of this court. Mayo v. State, supra. Whether the parties raise the question — or agree that none exists — it is our duty to inquire into our jurisdiction. Baggett Transp. Co. v. Barnes, 108 Ga. App. 68 (132 SE2d 229). We have done so. Notice of appeal of the grants of summary judgment to Barton & Ludwig and Fickling & Walker was not filed until 75 days after entry of the summary judgment below. Accordingly, this appeal is dismissed.

Appeal dismissed.

Shulman, C. J., and McMurray, P. J. concur.