Sheehan v. Sheehan

Supreme Court of Georgia

Sheehan v. Sheehan

260 S.E.2d 77, 244 Ga. 367, 1979 Ga. LEXIS 1237

CourtSupreme Court of Georgia

DecidedSeptember 26, 1979

Docket35225

StatusPublished

Cited by3 cases

This text of 260 S.E.2d 77 (Sheehan v. Sheehan) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sheehan v. Sheehan, 260 S.E.2d 77, 244 Ga. 367, 1979 Ga. LEXIS 1237 (Ga. 1979).

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Opinion

Nichols, Chief Justice.

The order of the trial court dated April 6, 1979, denying the appellant-husband’s motion for new trial in these divorce proceedings, was filed with the clerk of superior court on April 12, 1979. That filing constituted entry of judgment. Code Ann. § 81A-158 (b). Thereafter, appellant’s counsel obtained an ex parte order dated, and filed with the clerk on, May 23,1979, which held that the order dated April 6, 1979, "was entered erroneously, and the date of the Order should have been the 6th day of May 1979.” The notice of appeal dated May 25, 1979, recites that the appeal is taken from the order "entered on the 6th day of May, 1979, denying defendant’s timely Motion for New Trial.” The record contains no order "entered” —that is, filed with the clerk, on May 6, 1979.

Insofar as the ordér of May 23,1979, might have been intended to grant an extension of time for the filing of the notice of appeal, it came too late because no application for an extension of time to file the notice of appeal was "made before expiration of the period for filing as originally *368 prescribed.” Code Ann. § 6-804; Associated Distributors, Inc. v. Willard, 242 Ga. 247 (248 SE2d 645) (1978).

Submitted August 30, 1979 Decided September 26, 1979. Fleming, Blanchard & Thompson, John Fleming, for appellant. Percy J. Blount, for appellee.

The order of May 23, 1979, is entitled "Order Nunc Pro Tunc” although it does not purport to give effect to some judicial action as of some earlier date and although it purports to correct an entry rather than to make a record of an action previously taken but not recorded. Such an order "cannot be used to correct the failure to comply with the mandatory requirements of the Appellate Practice Act.” Blackstone v. State, 131 Ga. App. 666 (206 SE2d 553) (1974); Arnold v. DeKalb County, 141 Ga. App. 315, 316 (233 SE2d 273) (1977); Cranman Ins. Agency, Inc. v. Wilson Marine Sales &c., Inc., 147 Ga. App. 590 (249 SE2d 631) (1978).

Appeal dismissed.

All the Justices concur.

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Nichols, Chief Justice.

The order of the trial court dated April 6, 1979, denying the appellant-husband’s motion for new trial in these divorce proceedings, was filed with the clerk of superior court on April 12, 1979. That filing constituted entry of judgment. Code Ann. § 81A-158 (b). Thereafter, appellant’s counsel obtained an ex parte order dated, and filed with the clerk on, May 23,1979, which held that the order dated April 6, 1979, "was entered erroneously, and the date of the Order should have been the 6th day of May 1979.” The notice of appeal dated May 25, 1979, recites that the appeal is taken from the order "entered on the 6th day of May, 1979, denying defendant’s timely Motion for New Trial.” The record contains no order "entered” —that is, filed with the clerk, on May 6, 1979.

Insofar as the ordér of May 23,1979, might have been intended to grant an extension of time for the filing of the notice of appeal, it came too late because no application for an extension of time to file the notice of appeal was "made before expiration of the period for filing as originally *368 prescribed.” Code Ann. § 6-804; Associated Distributors, Inc. v. Willard, 242 Ga. 247 (248 SE2d 645) (1978).

Submitted August 30, 1979 Decided September 26, 1979. Fleming, Blanchard & Thompson, John Fleming, for appellant. Percy J. Blount, for appellee.

The order of May 23, 1979, is entitled "Order Nunc Pro Tunc” although it does not purport to give effect to some judicial action as of some earlier date and although it purports to correct an entry rather than to make a record of an action previously taken but not recorded. Such an order "cannot be used to correct the failure to comply with the mandatory requirements of the Appellate Practice Act.” Blackstone v. State, 131 Ga. App. 666 (206 SE2d 553) (1974); Arnold v. DeKalb County, 141 Ga. App. 315, 316 (233 SE2d 273) (1977); Cranman Ins. Agency, Inc. v. Wilson Marine Sales &c., Inc., 147 Ga. App. 590 (249 SE2d 631) (1978).

Appeal dismissed.

All the Justices concur.

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260 S.E.2d 77, 244 Ga. 367, 1979 Ga. LEXIS 1237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheehan-v-sheehan-ga-1979.

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