O.C.G.A. § 44-7-56 (2019)
Appeal; possession and payment of rent pending appeal
Statute text
Any judgment by the trial court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal shall be filed within seven days of the date such judgment was entered and provided, further, that, after the notice of appeal is filed with the clerk of the trial court, the clerk shall immediately notify the trial judge of the notice of appeal and the trial judge may, within 15 days, supplement the record with findings of fact and conclusions of law which will be considered as a part of the order of the judge in that case. If the judgment of the trial court is against the tenant and the tenant appeals this judgment, the tenant shall be required to pay into the registry of the court all sums found by the trial court to be due for rent in order to remain in possession of the premises. The tenant shall also be required to pay all future rent as it becomes due into the registry of the trial court pursuant to paragraph (1) of subsection (a) of Code Section 44-7-54 until the issue has been finally determined on appeal.
History
(Code 1933, § 61-306, enacted by Ga. L. 1970, p. 968, § 5; Ga. L. 1984, p. 859, § 1; Ga. L. 1985, p. 149, § 44; Ga. L. 1994, p. 1150, § 3; Ga. L. 1998, p. 1380, § 4; Ga. L. 2006, p. 656, § 1.3/HB 1273.)
Annotations
Law reviews. - For annual survey of appellate practice and procedure, see 43 Mercer L. Rev. 73 (1991). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006).
JUDICIAL DECISIONS
Effect of failure to pay rent or bond. - After a tenant failed to pay into court the rent and failed to post supersedeas bond as required by the order of a lower court, the court properly entered an order giving landlords immediate possession. Mitchell v. Excelsior Sales & Imports, Inc., 243 Ga. 813, 256 S.E.2d 785 (1979).
Payment of rent into registry required. - When the plaintiff filed a dispossessory warrant, judgment was entered against the defendants, and the defendants appealed, the trial court did not err in requiring the defendants to pay rent into the registry of the court as a condition of the defendants remaining on the premises. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 409 S.E.2d 71, cert. denied, 200 Ga. App. 897, 409 S.E.2d 71 (1991).
Pending an appeal, the trial court may require payment of rent into the registry of the court, even if the relationship as tenants at sufferance has not been decided by the court. Bellamy v. FDIC, 236 Ga. App. 747, 512 S.E.2d 671 (1999).
Unless the landlord moves the court to require payment of rent into the registry of the court, the tenant could remain in possession without such payment, pending appeal. Green v. Barton, 237 Ga. App. 553, 515 S.E.2d 864 (1999).
When the magistrate court ruled against the tenant and the tenant appealed the decision to the superior court and, without order, paid all rent due into the registry of that court, the tenant was entitled, under the provisions of O.C.G.A. §§ 44-7-54 and 44-7-56, to remain in possession of the premises until the litigation was concluded. Green v. Barton, 237 Ga. App. 553, 515 S.E.2d 864 (1999).
In a dispossessory action brought by the buyer at a foreclosure sale against the occupant of the property that had been foreclosed upon, the occupant could not assert the alleged invalidity of the foreclosure sale as a defense. Thus, the court affirmed the order requiring the occupant to pay rent into court pending the occupant's appeal. Jackman v. Lasalle Bank, N.A., 299 Ga. App. 894, 683 S.E.2d 925 (2009).
Trial findings not entered absent request. - Requirement that notice of appeal be sent from the clerk to the trial judge does not impose a burden on the judge, when notice is not sent, to enter findings and conclusions in the absence of a request by one of the parties. Such entry is permissive, not mandatory. Poor v. Leader Fed. Bank for Savs., 221 Ga. App. 889, 473 S.E.2d 563 (1996).
In a dispossessory proceeding, as the mortgagors did not request the state court to enter findings of fact and conclusions of law until after a ruling had been entered, the state court was not required to include that information pursuant to O.C.G.A. § 9-11-52(a) as to each of the mortgagors' defenses and counterclaims; O.C.G.A. § 44-7-56, which provided a mechanism for trial courts to enter findings of fact and conclusions of law in dispossessory cases being appealed, was permissive, not mandatory. Mackey v. Fed. Nat'l Mortg., 294 Ga. App. 495, 669 S.E.2d 397 (2008).
Appellate procedure. - Amount of rents in a dispossessory proceeding do not control the appellate procedure. Vlahos v. DeLong, 132 Ga. App. 722, 209 S.E.2d 12 (1974).
O.C.G.A. § 44-7-56 does not provide any special right of direct appeal, rather that section expressly makes any appeal taken in regard to dispossessory proceedings subject to the provisions of "Chapters 2, 3, 6, and 7 of Title 5" as applicable. Whiddon v. Stargell, 192 Ga. App. 826, 386 S.E.2d 884 (1989).
O.C.G.A. § 44-7-56 applied to require dismissal of an appeal based on untimely notice because, even though an arbitration award settled the dispute, the action was begun as a dispossessory proceeding. Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 521 S.E.2d 456 (1999).
Seven-day time limitation of O.C.G.A. § 44-7-56 for filing an appeal did not apply when in an action begun as a dispossessory proceeding, the issue of possession was resolved by agreement and the payment of rent into court was suspended, leaving only the issues of unpaid rent and breach of the lease contract. America Net, Inc. v. U.S. Cover, Inc., 243 Ga. App. 204, 532 S.E.2d 756 (2000).
After trial court had initially granted partial summary judgment to a landlord, upholding the landlord's position that the tenant was not entitled to a credit for reconditioning expenses, but the court reserved ruling on whether a writ of possession should be granted, and after the tenant appealed that judgment pursuant to O.C.G.A. § 9-11-56(h) but the court dismissed that appeal for failure to comply with O.C.G.A. § 44-7-56, the landlord's subsequent appeal from the final order granting a writ of possession to the landlord was dismissed to the extent that the appeal sought to relitigate the identical issues that the tenant attempted to litigate in the first appeal under O.C.G.A. § 9-11-56(h), and the prior appellate ruling was binding on the court under the law of the case rule, O.C.G.A. § 9-11-60(h). Eckerd Corp. v. Alterman Real Estate, Ltd., 266 Ga. App. 860, 598 S.E.2d 510 (2004).
Similar to a postjudgment order requiring the posting of a supersedeas bond, a postjudgment order requiring the payment of rent pending appeal under O.C.G.A. § 44-7-56 is subject to direct appeal, as there is nothing left to be decided in the trial court. Owens v. Green Tree Servicing LLC, 300 Ga. App. 22, 684 S.E.2d 99 (2009).
Time limitations. - Trial court erred in denying the landlord's motion for a new trial as the landlord filed the motion within 30 days of the dismissal of the complaint pursuant to O.C.G.A. § 5-5-40(a). SBP Mgmt., LLC v. Price, 277 Ga. App. 130, 625 S.E.2d 523 (2006).
Cited in Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593, 27 L. Ed. 2d 741 (1971); Lopez v. Dlearo, 232 Ga. 339, 206 S.E.2d 454 (1974); Howington v. W.H. Ferguson & Sons, 147 Ga. App. 636, 249 S.E.2d 687 (1978); Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980); Skelton v. Hill Aircraft & Leasing Corp., 180 Ga. App. 814, 351 S.E.2d 98 (1986); Browning v. Federal Home Loan Mtg. Corp., 210 Ga. App. 115, 435 S.E.2d 450 (1993); Lewis v. Countrywide Funding Corp., 225 Ga. App. 440, 484 S.E.2d 66 (1997).
RESEARCH REFERENCES
Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 960.
C.J.S. - 52A C.J.S., Landlord and Tenant, § 1399 et seq.