Stores, Inc. v. Kalfin

173 S.E.2d 219, 226 Ga. 145, 1970 Ga. LEXIS 464

• Court: Supreme Court of Georgia
• Decided: February 5, 1970
• Docket: 25602
• Status: Published

Opinion

Nichols, Justice.

On April 1, 1968, an equitable petition was filed in the Superior Court of DeKalb County, and a temporary restraining order granted. On April 30, 1968, a motion to dismiss for failure to state a claim was filed by the defendant and, after hearing evidence and argument of counsel, a judgment was rendered dismissing the plaintiff’s petition. On May 31, 1968, a motion to reconsider was filed in the trial court which, after amendments were filed by the plaintiff, was finally disposed of on July 17, 1969. A notice of appeal was filed on August 15, 1969'. Held:

1. Under the provisions of Code § 24-3010 the March, 1968, term of the Superior Court of DeKalb County adjourned five days prior to June 3, 1968, which would have been prior to the time the motion for reconsideration was filed, and the trial court was without jurisdiction to issue a rule nisi on the motion. Compare Grage v. Venable, 114 Ga. App. 570 (151 SE2d 926), and citations. Nor was the case still within the breast of the court.

Submitted January 14, 1970 Decided February 5, 1970 Rehearing denied February 19, 1970. N. Krasner, pro se, D. Krasner, pro se, D. W. Krasner, for appellants.

2. Thus, assuming but not deciding that a timely motion to reconsider a judgment dismissing a-petition will stay the time for filing a notice of appeal (but see Wilson v. McQueen, 224 Ga. 420 (162 SE2d 313)), a motion to reconsider filed at a time when the case is no longer within the breast of the court would not have such effect and the notice of appeal in this case was not timely filed and the appeal must be dismissed.

Appeal dismissed.

All the Justices concur.