Rozier v. DAVIS/SMITH MORTGAGE CORPORATION

Court of Appeals of Georgia

Rozier v. DAVIS/SMITH MORTGAGE CORPORATION

387 S.E.2d 627, 193 Ga. App. 340, 1989 Ga. App. LEXIS 1441

CourtCourt of Appeals of Georgia

DecidedOctober 31, 1989

DocketA89A1033

StatusPublished

Cited by5 cases

This text of 387 S.E.2d 627 (Rozier v. DAVIS/SMITH MORTGAGE CORPORATION) 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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Rozier v. DAVIS/SMITH MORTGAGE CORPORATION, 387 S.E.2d 627, 193 Ga. App. 340, 1989 Ga. App. LEXIS 1441 (Ga. Ct. App. 1989).

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Opinion

Benham, Judge.

This appeal is from a consent judgment entered in a dispossessory proceeding.

1. Appellee has filed three motions to dismiss the appeal. The first two motions to dismiss are denied inasmuch as appellant’s brief was timely filed in accordance with this court’s order. The third motion to dismiss, based upon the holding in Zorn v. Lamar, 71 Ga. 80 (1883), is also denied. In Zorn, the Georgia Supreme Court held that the writ of error will be dismissed in a case where the appellant consented to the judgment below. In light of the passage of OCGA § 5-6-48 which limits the grounds upon which an appeal may be dismissed, we do not find Zorn to be applicable. Since this case does not come within any of the limited grounds for dismissal of an appeal listed in OCGA § 5-6-48, we will not dismiss this appeal.

2. However, we conclude that the entry of the consent judgment requires affirmance of the judgment below. Since appellant did not seek to have the consent judgment vacated or set aside, she is es-topped from going behind the judgment so as to reopen the matter in this court. Johnson v. Shook, 156 Ga. App. 878 (2) (275 SE2d 815) (1981). See also Great Atlantic Ins. Co. v. Morgan, 161 Ga. App. 680 (288 SE2d 287) (1982); McCook v. Beck, 138 Ga. App. 351 (226 SE2d 72) (1976).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.

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Benham, Judge.

This appeal is from a consent judgment entered in a dispossessory proceeding.

1. Appellee has filed three motions to dismiss the appeal. The first two motions to dismiss are denied inasmuch as appellant’s brief was timely filed in accordance with this court’s order. The third motion to dismiss, based upon the holding in Zorn v. Lamar, 71 Ga. 80 (1883), is also denied. In Zorn, the Georgia Supreme Court held that the writ of error will be dismissed in a case where the appellant consented to the judgment below. In light of the passage of OCGA § 5-6-48 which limits the grounds upon which an appeal may be dismissed, we do not find Zorn to be applicable. Since this case does not come within any of the limited grounds for dismissal of an appeal listed in OCGA § 5-6-48, we will not dismiss this appeal.

2. However, we conclude that the entry of the consent judgment requires affirmance of the judgment below. Since appellant did not seek to have the consent judgment vacated or set aside, she is es-topped from going behind the judgment so as to reopen the matter in this court. Johnson v. Shook, 156 Ga. App. 878 (2) (275 SE2d 815) (1981). See also Great Atlantic Ins. Co. v. Morgan, 161 Ga. App. 680 (288 SE2d 287) (1982); McCook v. Beck, 138 Ga. App. 351 (226 SE2d 72) (1976).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.

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387 S.E.2d 627, 193 Ga. App. 340, 1989 Ga. App. LEXIS 1441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rozier-v-davissmith-mortgage-corporation-gactapp-1989.

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