O.C.G.A. § 15-10-41 (2019)

Annotations

Law reviews. - For article, ‘‘The En-

dangered Right of Jury Trials in Dispossessories,’’ see 24 Ga. St. B. J. 126 (1988).

JUDICIAL DECISIONS Constitutional right to jury trial in dispossessory actions. - After the appellants had sought a jury trial in a local magistrate court on the issue of possession in a landlord-tenant dispute, the appellee denied the appellants’ request, the appellants filed a writ of prohibition against the appellee in the superior court, and the superior court denied the appellants’ writ and issued a certificate of immediate review to the Supreme Court of Georgia, the magistrate court did not err in denying the appellants a jury trial since the right to jury trial on appeal is expressly given in O.C.G.A. § 5-3-30, and the appellants are not being denied a jury trial, but instead, only endure a procedural delay in the magistrate court before receiving a jury trial on appeal to the state or superior court. Hill v. Levenson, 259 Ga. 395, 383 S.E.2d 110 (1989). New trials. - Magistrate courts are not courts of record with the power to grant new trials; thus, a motion for a new trial in the magistrate court did not toll the time for filing an appeal to state or superior court. Bowen v. Ball, 215 Ga. App. 640, 451 S.E.2d 502 (1994). No statutory provision to remand case. - Once a de novo appeal from a magistrate court in proper form is taken to a state or superior court, there is no statutory provision for the remand of the case or for reinstatement of the judgment of the magistrate court nor may the appeal be dismissed simply because of the absence of one of the parties. Scott v. Aaron, 221 Ga. App. 254, 471 S.E.2d 55 (1996). Availability of direct appeal. - Although it was not denominated a ‘‘final judgment,’’ a magistrate’s involuntary dismissal of a case constituted a final judgment subject to direct appeal. Brown v. Adams, 233 Ga. App. 813, 506 S.E.2d 135 (1998). Appellant could not appeal, under O.C.G.A. § 15-10-43(g), from the entry by a magistrate court of a default judgment

against the appellant in favor of the appellee, in a new suit, as under O.C.G.A. § 15-10-41(b)(2), the appellant could not appeal from the entry of the default judgment in the original suit. Shelley v. Shannon, 267 Ga. App. 582, 601 S.E.2d 131 (2004). In a customer’s suit against a company, as the latter filed the company’s answer late, the case was initially placed on the ‘‘default judgment’’ trial calendar. However, as the magistrate later held a hearing at which both parties appeared, and entered a ‘‘judgment,’’ rather than a ‘‘default judgment,’’ in favor of the customer, the customer properly filed a direct appeal to the state trial court under O.C.G.A. § 15-10-41(b)(1). Infinite Energy, Inc. v. Cottrell, 295 Ga. App. 306, 671 S.E.2d 294 (2008). In a bankruptcy trustee’s eviction action on behalf of the debtor in magistrate court, the magistrate court judgment against the tenant was a judgment on the merits and was therefore subject to the provisions of O.C.G.A. § 15-10-41(b)(1), allowing a direct appeal. The trial court erred in dismissing the appeal based on the last sentence of paragraph (b)(2), which applied only to dismissals for failure to prosecute and default judgments. McKeever v. Scarver, 348 Ga. App. 12, 821 S.E.2d 98 (2018). De novo appeal is exclusive avenue. - Only avenue of appeal available from a magistrate court judgment is provided by O.C.G.A. § 15-10-41(b)(1), which allows for a de novo appeal to the state or superior court. Handler v. Hulsey, 199 Ga. App. 751, 406 S.E.2d 225, cert. denied, 199 Ga. App. 906, 406 S.E.2d 225 (1991). Application for appeal. - Regardless of whether the litigation was subsequently erroneously expanded in state court to include matters beyond the parameters of a de novo investigation, after the litigation reached the state court by means of a de novo appeal from the magistrate court, in order to obtain appellate

review of the state court judgment in the Court of Appeals, an application for appeal must be sought as required by O.C.G.A. § 5-6-35(a)(11). Handler v. Hulsey, 199 Ga. App. 751, 406 S.E.2d 225, cert. denied, 199 Ga. App. 906, 406 S.E.2d (1991); Southtowne Hyundai-Isuzu-Suzuki v. Hooper, 216 Ga. App. 214, 453 S.E.2d 756 (1995). Scope of appeal. - In a de novo appeal of an action from magistrate to state court, the issues to be litigated are framed by the claims raised below. Handler v. Hulsey, 199 Ga. App. 751, 406 S.E.2d 225, cert. denied, 199 Ga. App. 906, 406 S.E.2d 225 (1991). Dismissal and renewal statutes applicable in appeal. - O.C.G.A. § 9-11-41(a), the voluntary dismissal statute, could be exercised by either party in a de novo appeal filed in superior court following the entry of a judgment in magistrate court, regardless of which party appealed. Once a landlord filed the landlord’s voluntary dismissal, the landlord was also entitled to file a renewal action pursuant to O.C.G.A. § 9-2-61(a). Jessup v. Ray, 311 Ga. App. 523, 716 S.E.2d 583 (2011). Default judgment. - Because no appeal lay from entry of a default judgment in magistrate court, a tenant’s filing of a notice of appeal in a dispossessory action did not divest the magistrate court of the court’s authority over the action.

Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007). Voluntary dismissal of magistrate court action was not res judicata. - Trial court erred by granting the debtors’ motion to dismiss by applying res judicata to the voluntary dismissal of the prior magistrate court actions because the Civil Practice Act, O.C.G.A. § 15-10-42, was inapplicable to magistrate courts, thus, the voluntary dismissal under O.C.G.A. § 9-11-41(a)(1) did not operate as an adjudication upon the merits of the case. Target Nat’l Bank v. Luffman, 324 Ga. App. 442, 750 S.E.2d 750 (2013). Review of denial of motion to vacate judgment. - Superior court erred in concluding that the court could not review an appeal from a default judgment in magistrate court because O.C.G.A. § 15-10-41(b)(2) specifically allowed review of a denial of a postjudgment motion to vacate a judgment by certiorari. Jorree v. PMB Rentals, LLC, 349 Ga. App. 332, 825 S.E.2d 817 (2019). Cited in Littlefield v. Smith, 182 Ga. App. 712, 356 S.E.2d 746 (1987); Baker v. G.T., Ltd., 194 Ga. App. 450, 391 S.E.2d 1 (1990); Giles v. Vastakis, 262 Ga. App. 483, 585 S.E.2d 905 (2003); Abushmais v. Erby, 282 Ga. App. 86, 637 S.E.2d 725 (2006); Long v. Greenwood Homes, Inc., 285 Ga. 560, 679 S.E.2d 712 (2009); We Care Transp., Inc. v. Branch Banking & Trust Co., 335 Ga. App. 292, 780 S.E.2d 782 (2015).

OPINIONS OF THE ATTORNEY GENERAL Jurisdiction over appeals. - Superior courts have exclusive jurisdiction to hear appeals from justice of the peace/ magistrate courts; such jurisdiction hav-

ing a constitutional basis until July 1, 1983, and a statutory one thereafter. 1983 Op. Att’y Gen. No. U83-27 (decided prior to 1984 amendment).

RESEARCH REFERENCES ALR. - Small claims: jury trial rights in, and on appeal from, small claims court proceeding, 70 A.L.R.4th 1119.