Smith v. Smith

Court of Appeals of Georgia

Smith v. Smith

195 S.E.2d 269, 128 Ga. App. 29, 1973 Ga. App. LEXIS 1373

CourtCourt of Appeals of Georgia

DecidedFebruary 1, 1973

Docket47656

StatusPublished

Cited by8 cases

This text of 195 S.E.2d 269 (Smith v. Smith) 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.

Bluebook

Smith v. Smith, 195 S.E.2d 269, 128 Ga. App. 29, 1973 Ga. App. LEXIS 1373 (Ga. Ct. App. 1973).

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Stolz, Judge.

Earl S. Smith brought an action against Charles H. Smith for breach of a warranty of clear title [30]*30to an automobile he had purchased from the defendant. The defendant filed a third-party claim against Leon’s Auto Parts, Inc., which had sold the untitled automobile to the defendant. After a verdict and judgment for $1,100 for the plaintiff against the defendant and for $550 for the defendant against the third-party defendant were entered, the third-party defendant filed a motion for new trial on the general grounds. While this motion was pending, the defendant filed a notice of appeal in this court from the judgment on the verdict. Appellee Smith (plaintiff) filed a motion to dismiss the appeal on the grounds of the pendency of the motion for new trial and the failure of the appellant to have the record and transcript transmitted to this court within 20 days after the filing of the notice of appeal, as required by Code Ann. § 6-808 (c) (Ga. L. 1965, pp. 18, 28; as amended, Ga. L. 1968, pp. 1072, 1076). Held:

1. The late filing of the transcript of evidence and proceedings is no longer a ground for dismissal of appeals by the appellate courts. Code Ann. § 6-809 (b) (Ga. L. 1965, pp. 18, 29; as amended, Ga. L. 1968, pp. 1072, 1073, 1074).

2. An appeal from the judgment on the verdict brought while the case is pending on motion for new trial is premature and will be dismissed. Code Ann. § 6-701 (a) (1) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073); Code Ann. § 6-803 (a) (first sentence) (Ga. L. 1965, pp. 18, 21, as amended, Ga. L. 1968, pp. 1072, 1077); Code Ann. §6-809 (b) (2) (Ga. L. 1965, pp. 18, 29; as amended, Ga. L. 1968, pp. 1072, 1073, 1074); State Bank of Leesburg v. Hatcher, 106 Ga. App. 735 (128 SE2d 339); Kurtz v. State, 115 Ga. App. 665 (1) (155 SE2d 735); Graves v. State, 116 Ga. App. 19 (156 SE2d 205); Hayes v. State, 116 Ga. App. 260, 261 (157 SE2d 30); Hill v. General Rediscount Corp., 116 Ga. App. 459, 461 (157 SE2d 888); Olivet v. State, 117 Ga. App. 860 (162 SE2d 306); Lamas [31]*31Co. v. Baldwin, 118 Ga. App. 437 (164 SE2d 236); Golden v. Credico, 124 Ga. App. 700 (185 SE2d 578). Accordingly, the appeal is dismissed as premature.

Submitted November 6, 1972 Decided February 1, 1973. James A. Elkins, Jr., for appellant. Roberts & Kilpatrick, Samuel W. Worthington, for appellees.

Appeal dismissed.

Bell, C. J., concurs. Evans, J., concurs specially.

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Stolz, Judge.

Earl S. Smith brought an action against Charles H. Smith for breach of a warranty of clear title [30]*30to an automobile he had purchased from the defendant. The defendant filed a third-party claim against Leon’s Auto Parts, Inc., which had sold the untitled automobile to the defendant. After a verdict and judgment for $1,100 for the plaintiff against the defendant and for $550 for the defendant against the third-party defendant were entered, the third-party defendant filed a motion for new trial on the general grounds. While this motion was pending, the defendant filed a notice of appeal in this court from the judgment on the verdict. Appellee Smith (plaintiff) filed a motion to dismiss the appeal on the grounds of the pendency of the motion for new trial and the failure of the appellant to have the record and transcript transmitted to this court within 20 days after the filing of the notice of appeal, as required by Code Ann. § 6-808 (c) (Ga. L. 1965, pp. 18, 28; as amended, Ga. L. 1968, pp. 1072, 1076). Held:

1. The late filing of the transcript of evidence and proceedings is no longer a ground for dismissal of appeals by the appellate courts. Code Ann. § 6-809 (b) (Ga. L. 1965, pp. 18, 29; as amended, Ga. L. 1968, pp. 1072, 1073, 1074).

2. An appeal from the judgment on the verdict brought while the case is pending on motion for new trial is premature and will be dismissed. Code Ann. § 6-701 (a) (1) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073); Code Ann. § 6-803 (a) (first sentence) (Ga. L. 1965, pp. 18, 21, as amended, Ga. L. 1968, pp. 1072, 1077); Code Ann. §6-809 (b) (2) (Ga. L. 1965, pp. 18, 29; as amended, Ga. L. 1968, pp. 1072, 1073, 1074); State Bank of Leesburg v. Hatcher, 106 Ga. App. 735 (128 SE2d 339); Kurtz v. State, 115 Ga. App. 665 (1) (155 SE2d 735); Graves v. State, 116 Ga. App. 19 (156 SE2d 205); Hayes v. State, 116 Ga. App. 260, 261 (157 SE2d 30); Hill v. General Rediscount Corp., 116 Ga. App. 459, 461 (157 SE2d 888); Olivet v. State, 117 Ga. App. 860 (162 SE2d 306); Lamas [31]*31Co. v. Baldwin, 118 Ga. App. 437 (164 SE2d 236); Golden v. Credico, 124 Ga. App. 700 (185 SE2d 578). Accordingly, the appeal is dismissed as premature.

Submitted November 6, 1972 Decided February 1, 1973. James A. Elkins, Jr., for appellant. Roberts & Kilpatrick, Samuel W. Worthington, for appellees.

Appeal dismissed.

Bell, C. J., concurs. Evans, J., concurs specially.

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195 S.E.2d 269, 128 Ga. App. 29, 1973 Ga. App. LEXIS 1373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-gactapp-1973.

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