Jury trial in superior court where factual issues involved.

- An appeal is a de novo investigation, and in the superior court the appellant cannot be deprived of the right of trial by jury if questions of fact are involved. Goolsby v. Board of Drainage Comm'rs, 156 Ga. 213, 119 S.E. 644 (1923).

Appeal from court of ordinary (now probate court) brings whole case up for new hearing. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).

O.C.G.A. § 5-3-29 provides that on appeal from a probate court all competent evidence shall be admissible in the trial de novo in the superior court and the whole record shall be brought up from below. Pendley v. Pendley, 251 Ga. 30, 302 S.E.2d 554 (1983).

Appeal of the magistrate court judgment to the superior court is a de novo investigation. Long v. Greenwood Homes, Inc., 285 Ga. 560, 679 S.E.2d 712 (2009).

Appeal from judgment allowing or refusing homestead.

- When appeal is taken from judgment of ordinary, (now judge of probate court) in allowing or refusing homestead, whole case is brought up by appeal. Lynch v. Pace, 40 Ga. 173 (1869); Kirtland, Babcock & Bronson v. Davis, 43 Ga. 318 (1871).

Same rule applies in attachment. J. W. McGarrity & Co. v. Thomas, 9 Ga. App. 606, 71 S.E. 948 (1911).

Case on appeal from court of ordinary (now probate court) must be tried anew, as if no trial had been had. Hall v. First Nat'l Bank, 85 Ga. App. 498, 69 S.E.2d 679 (1952); Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972); Mathews v. Mathews, 136 Ga. App. 833, 222 S.E.2d 609 (1975), cert. denied, 429 U.S. 844, 97 S. Ct. 123, 50 L. Ed. 2d 114 (1976).

Hearing required unless waived.

- Although the Superior court is not required to conduct a hearing concerning the merits of the Department of Public Safety's decision to revoke the driver's license of an aggrieved party if the parties waive their right to be heard, the superior court cannot avoid the dictates of O.C.G.A. §§ 5-3-29 and9-10-2 by simply failing to hold a hearing. Bowman v. Parrot, 200 Ga. App. 405, 408 S.E.2d 115, cert. denied, 200 Ga. App. 895, 408 S.E.2d 115 (1991).

Superior court not to review rulings of probate court.

- It is not province of superior court on appeal to review and affirm or reverse rulings of ordinary (now judge of probate court), but to try issues anew and pass original judgments on questions involved as if there had been no previous trial. Hall v. First Nat'l Bank, 85 Ga. App. 498, 69 S.E.2d 679 (1952); Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972); Mathews v. Mathews, 136 Ga. App. 833, 222 S.E.2d 609 (1975), cert. denied, 429 U.S. 844, 97 S. Ct. 123, 50 L. Ed. 2d 114 (1976).

Superior court erred in setting aside the year's support award for failure to provide evidence of an amount sufficient to constitute a year's support because the only issue properly before the court on appeal under O.C.G.A. § 5-3-29 was whether an objection had been made to the petitioner's petition for year's support. Because the superior court found that no objection had been made to the petition for year's support, the court erred in placing the burden of proof to show the amount sufficient for year's support upon the petitioner. The language of O.C.G.A. § 53-3-7(c) indicates that the petitioner shouldered that burden of proof only once an objection is made. Garren v. Garren, 316 Ga. App. 646, 730 S.E.2d 123 (2012).

Distinction between statutory appeal on merits and appeal by writ of error.

- Statutory appeal providing for another trial in appellate court on merits of case is altogether different from writ of error on appeal for correction of errors in trial eventuating in judgment from which appeal is taken. In latter proceeding inquiry is into correctness of judgment upon pleading and evidence before trial court. Appellate court affirms or reverses in whole or in part the judgment on review and certifies the result to the trial court, where final judgment is entered. That procedure has nothing in common with that of a statutory appeal. The statutory appeal allows litigants in certain cases the right to another trial in superior court upon compliance with certain requisites. Trial in superior court is had without reference to evidence introduced in former trial, and is a de novo investigation. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).

On appeal, it is action and not judgment that is examined. Abrams v. Lang, Sons, 60 Ga. 218 (1878).

Appeal under former Code 1933, § 6-201 (see O.C.G.A. § 5-3-2) placed the matter in the superior court for a de novo investigation under former Code 1933, § 6-501 (see O.C.G.A. § 5-3-29). Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).

Relinquishment of de novo appeal to court of appeals.

- Defendant, by moving to dismiss the defendant's de novo appeal from a probate court to a superior court for failure to hold a timely trial under O.C.G.A. § 5-3-29, voluntarily relinquished his right to a de novo appeal to the court of appeals, and the defendant's conviction and sentence imposed by the probate court were, therefore, reinstated. Bailey v. State, 184 Ga. App. 890, 363 S.E.2d 172 (1987).

Cited in Tommey & Stewart v. Finney, 45 Ga. 155 (1872); Roberts v. Summers, 47 Ga. 434 (1872); In re Moseley, 17 F. Cas. 886 (S.D. Ga. 1873); Powell v. Perry, 63 Ga. 417 (1879); Fagan v. McTier, 81 Ga. 73, 6 S.E. 177 (1888); Brodhead v. Shoemaker, 44 F. 518, 111 L.R.A. 567 (N.D. Ga. 1890); Freeman v. Carr & Bro., 104 Ga. 718, 30 S.E. 935 (1898); Bryson v. Scott, 111 Ga. 196, 36 S.E. 619 (1900); Robinson v. McAlpin, 130 Ga. 489, 61 S.E. 115 (1908); Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387, 1914A Ann. Cas. 880 (1912); Willingham v. Buckeye Cotton Oil Co., 13 Ga. App. 253, 79 S.E. 496 (1913); Byers v. Byers, 41 Ga. App. 671, 154 S.E. 456 (1930); Hill v. Hill, 55 Ga. App. 500, 190 S.E. 411 (1937); State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939); Forrester v. Pullman Co., 66 Ga. App. 745, 19 S.E.2d 330 (1942); Rabun v. Planters Cotton Oil Co., 68 Ga. App. 37, 21 S.E.2d 922 (1942); Allen v. Allen, 71 Ga. App. 272, 30 S.E.2d 665 (1944); Bethea County v. Dixon, 72 Ga. App. 384, 33 S.E.2d 723 (1945); Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947); Anderson v. Smith, 76 Ga. App. 171, 45 S.E.2d 282 (1947); Jones v. Cannady, 78 Ga. App. 453, 51 S.E.2d 551 (1949); Roe v. Pitts, 82 Ga. App. 770, 62 S.E.2d 387 (1950); Oxford v. Farr, 98 Ga. App. 776, 106 S.E.2d 911 (1958); McCray v. First Nat'l Bank, 103 Ga. App. 506, 120 S.E.2d 26 (1961); Brumbelow v. Brumbelow, 111 Ga. App. 665, 142 S.E.2d 855 (1965); Ingram v. Rooks, 221 Ga. 701, 146 S.E.2d 743 (1966); Undercofler v. White, 113 Ga. App. 853, 149 S.E.2d 845 (1966); Hodges v. Libbey, 120 Ga. App. 246, 170 S.E.2d 37 (1969); Olley Valley Estates, Inc. v. Fussell, 232 Ga. 779, 208 S.E.2d 801 (1974); Edge v. Edge, 134 Ga. App. 162, 213 S.E.2d 540 (1975); Ledford v. Farrow, 134 Ga. App. 591, 215 S.E.2d 344 (1975); City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975); Weeks v. Gwinnett County Bd. of Tax Equalization, 139 Ga. App. 37, 227 S.E.2d 865 (1976); Carter v. Carter, 139 Ga. App. 548, 228 S.E.2d 708 (1976); McKnight v. Mitchell, 142 Ga. App. 344, 235 S.E.2d 763 (1977); City of Smyrna v. Ruff, 240 Ga. 250, 240 S.E.2d 19 (1977); Judd v. Valdosta/Lowndes County Zoning Bd. of Appeals, 147 Ga. App. 128, 248 S.E.2d 196 (1978); Hunter v. Hunter, 149 Ga. App. 324, 254 S.E.2d 477 (1979); Rawlins v. Rawlins, 150 Ga. App. 534, 258 S.E.2d 187 (1979); Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981); Smith v. Smith, 165 Ga. App. 532, 301 S.E.2d 696 (1983); Gay v. Farley, 255 Ga. 174, 336 S.E.2d 235 (1985); General Accident Ins. Co. v. Wells, 179 Ga. App. 440, 346 S.E.2d 886 (1986); Anderson v. City of Alpharetta, 187 Ga. App. 148, 369 S.E.2d 521 (1988); Walton v. State, 261 Ga. 392, 405 S.E.2d 29 (1991); Barmore v. Himebaugh, 200 Ga. App. 868, 410 S.E.2d 46 (1991); Hooper v. Taylor, 230 Ga. App. 128, 495 S.E.2d 594 (1998); Clark v. Davis, 242 Ga. App. 425, 530 S.E.2d 49 (2000); Giles v. Vastakis, 262 Ga. App. 483, 585 S.E.2d 905 (2003); Candies v. Hulsey, 277 Ga. 630, 593 S.E.2d 353 (2004); Jessup v. Ray, 311 Ga. App. 523, 716 S.E.2d 583 (2011); Target Nat'l Bank v. Luffman, 324 Ga. App. 442, 750 S.E.2d 750 (2013); Shirley v. Sailors, 329 Ga. App. 850, 766 S.E.2d 201 (2014).

Judgment appealed from and opposite judgment in superior court might both be free of error.

- It is quite obvious that, with such latitude as to evidence as is given by this section, the judgment appealed from and a directly opposite judgment in appellate court, might both be free from error - each of them might be absolutely correct on the facts submitted, and the law applicable thereto. Abrams v. Lang, Sons, 60 Ga. 218 (1878).

Appeal from court of ordinary (now probate court) suspends, but does not vacate judgment. Snell v. Lopez, 91 Ga. App. 552, 86 S.E.2d 363 (1955).

No waiver of right to trial by jury.

- Because: (1) by repealing former provisions of O.C.G.A. § 5-3-30, the Georgia legislature intended that appeals from the probate court to the superior court would continue without special limitations on the right to a jury trial; and (2) de novo appeals to the superior court from the probate court were to be tried by jury unless the right to a jury trial was waived, given that a widow specifically requested a jury trial, and hence did not waive the right, the trial court erred in denying the widow's request. Montgomery v. Montgomery, 287 Ga. App. 77, 650 S.E.2d 754 (2007).

Justice's court judgment remains operative, but incapable of enforcement pending appeal. Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942), later appeal, 69 Ga. App. 561, 26 S.E.2d 293 (1943).

Judgment against joint defendant is suspended pending appeal of nonsuit.

- As to other joint defendant when the maker and endorser of a promissory note are jointly sued and judgment rendered against the endorser and nonsuit as to maker, judgment against an endorser is suspended until rendition of the case on appeal. Turnell v. Carter, 5 Ga. App. 847, 64 S.E. 114 (1909).

When appellee is successful on appeal, lien of judgment is binding from date originally rendered.

- When on appeal from judgment in justice's court appellee is successful, lien of judgment will be taken as binding from date of the judgment's original rendition, and entitled to superiority over subsequently rendered judgment, notwithstanding provisions of former Code 1933, § 110-508 (see O.C.G.A. § 9-12-88). Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942), later appeal, 69 Ga. App. 561, 26 S.E.2d 293 (1943).

Appeal from a decision of a magistrate court is "a de novo investigation," in which the magistrate court's decision on the merits of the claim has no bearing. Howe v. Roberts, 259 Ga. 617, 385 S.E.2d 276 (1989).

Duty of superior court upon overruling objections to petition.

- If judge of superior court overrules demurrer (now motion to dismiss) and objections to petition to set aside judgment of court of ordinary (now probate court) it is the judge's duty to try issues made by such petition and defensive pleadings. Hall v. First Nat'l Bank, 85 Ga. App. 498, 69 S.E.2d 679 (1952).

Appeal imparts same jurisdiction as was possessed by inferior court.

- When a guardian seeks compensation for unsuccessful effort by the guardian, as attorney at law and in apparent good faith, to have order of court of ordinary (now probate court) granting encroachment upon estates of the guardian's wards modified, set aside, or vacated, the superior court on de novo appeal is vested with same discretion in matter that court of ordinary had. Whitehurst v. Singletary, 77 Ga. App. 811, 50 S.E.2d 80 (1948).

Superior court, on appeal from court of ordinary, (now probate court) has no broader jurisdiction than that of court of ordinary. Snell v. Lopez, 91 Ga. App. 552, 86 S.E.2d 363 (1955).

Superior court on trial of appeal from court of ordinary (now probate court) has no broader powers than court of ordinary itself had. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).

Appeal from court of ordinary (now probate court) brings whole case up for new hearing but with same jurisdiction as was possessed by court of ordinary. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).

Rulings of inferior court as to law and facts may be adjudicated de novo on appeal. Garrison v. McGuire, 114 Ga. App. 665, 152 S.E.2d 624 (1966).

Issues allowable on appeal.

- Any issue that may be made before tribunal originally hearing case may be made on appeal thereof to superior court when such appeal is a de novo investigation. City of Griffin v. Southeastern Textile Co., 79 Ga. App. 420, 53 S.E.2d 921 (1949).

Evidence which may be introduced.

- Appeal to superior court from probate court is a de novo investigation, and competent evidence may be heard which was not introduced in probate court. Dukes v. Joyner, 234 Ga. 526, 216 S.E.2d 822 (1975).

Purpose of O.C.G.A. § 5-3-29 is to provide the parties to an appeal a de novo hearing, and "all competent evidence" may be introduced in the superior court regardless of whether it was submitted below. Lee v. Wainwright, 256 Ga. 478, 350 S.E.2d 238 (1986).

An appeal from the magistrate court was a de novo proceeding in which either party could adduce evidence additional to that originally presented in the magistrate court. Stamps v. Nelson, 290 Ga. App. 277, 659 S.E.2d 697 (2008).

Restriction on presentation of new matters on appeal.

- While an appeal to the superior court from the probate court is a de novo investigation, the trial in the superior court is not a trial without limitation but is a new trial in which only the matter presented to the court below can be relitigated. Williams v. Calloway, 171 Ga. App. 286, 319 S.E.2d 500 (1984).

Suit on appeal is subject to attacks upon jurisdiction which could have been made below.

- In case pending in superior court on appeal from judgment of justice of peace, defendant may plead any defense, including plea to jurisdiction of justice's court, which the defendant could have pled in that court, irrespective of whether, upon trial of case therein, this defense was pled. Smith v. Atlanta Mut. Ins. Co., 42 Ga. App. 254, 155 S.E. 535 (1930).

Since appeal from court of ordinary (now probate court) to superior court is a de novo proceeding, any defense or attack upon jurisdiction which could have been made in the court of ordinary can be made in superior court on appeal. Cromer v. Chambers, 104 Ga. App. 196, 121 S.E.2d 397 (1961).

Superior court may hear and sustain demurrer (now motion to dismiss) previously heard and overruled in county court. Bowman v. Bowman, 79 Ga. App. 240, 53 S.E.2d 244 (1949).

Application of section to appeal from dismissal by probate court for want of jurisdiction.

- See Touchton v. Stewart, 222 Ga. 455, 150 S.E.2d 643 (1966).

Striking defendant on appeal discharges defendant from any liability in cause of action.

- As hearing is de novo, striking defendant on appeal against whom judgment was rendered in justice's court operates to discharge such defendant from any liability in cause of action. Hanie v. Taylor, 4 Ga. App. 545, 61 S.E. 1054 (1908).

City charter provision permitting appeals from tax assessments to superior court.

- When city charter provides that a tax assessment may be appealed from taxing authorities of city to superior court, there to be disposed of as other appeal cases, such appeal is a de novo investigation and brings up the whole record, to be tried anew in superior court. City of Griffin v. Southeastern Textile Co., 79 Ga. App. 420, 53 S.E.2d 921 (1949).

Appeal must include certified judgment or record.

- When there is no certified judgment or record before the superior court as to judgment rendered by appeals board, appeal to superior court is incomplete. Fletcher v. Daniels, 211 Ga. 403, 86 S.E.2d 232 (1955).

Failure of magistrate to send up judgment rendered by the magistrate is no ground for dismissal. Pearce & Renfroe v. Renfroe Bros., 68 Ga. 194 (1881).

Absence of party.

- Appeal, unlike an action, should not be dismissed because of absence of either party. Rousch v. Green, 2 Ga. App. 112, 58 S.E. 313 (1907).

Judgment on merits of affidavit of illegality does not preclude motion to dismiss affidavit on appeal.

- That plaintiff in fi. fa. went to trial in justice's court on merits of affidavit of illegality, where judgment was rendered against illegality, did not preclude plaintiff in fi. fa. from making motion to dismiss affidavit of illegality on call of case in superior court, to which defendant had appealed. Norris v. Carter & Nelson, 32 Ga. App. 607, 124 S.E. 144 (1924).

Party may invoke summary judgment procedure in appeal to superior court.

- An appeal to superior court from court of ordinary (now probate court) is subject to established procedures for civil actions, thus entitling a party to invoke summary judgment procedure. Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968).

Evidence of additional damages in trial de novo.

- When plaintiff appealed to the state court from a magistrate court's decision dismissing the plaintiff's claim and awarding damages to the defendant on the defendant's counterclaim, and the plaintiff had notice of additional damages since the original counterclaim, the defendant could present evidence of additional damages of less than $5,000 relating to the defendant's counterclaim, without formal amendment of the defendant's pleadings. Jr. Mills Constr. v. Trichinotis, 223 Ga. App. 19, 477 S.E.2d 141 (1996).

It is not reversible error to allow jury to know outcome in inferior court. Kelley v. Kelley, 129 Ga. App. 257, 199 S.E.2d 399 (1973).

Letting jury know what judgment was rendered below will not render the jury's verdict void, although it is not a proper practice. Humphrey v. Johnson, 143 Ga. 703, 85 S.E. 830 (1915).

Summary judgment improperly granted to siblings on statute of limitations bar issue.

- Trial court erred in granting summary judgment to the siblings on the basis that the challenging sister's claim against the estate seeking an accounting was time-barred because a question of fact remained as to whether the sister was on notice that they had claimed any estate property adversely to the sister; thus, a jury had to decide whether the 10-year bar of O.C.G.A. § 9-3-27(2) began to run before that time. In re Estate of Wade, 331 Ga. App. 535, 771 S.E.2d 214 (2015).

Reliance by jury upon record below in reaching the jury's decision.

- Jury in superior court proceeding does not review and affirm or reverse rulings of probate judge, but hears all issues anew as if there had been no previous trial, and if the jury relies upon record below or allows the judgment below to influence the jury's decision, reversible error is committed. Allmond v. Johnson, 153 Ga. App. 59, 264 S.E.2d 544 (1980).

Summary judgment available in appeal from probate court's award for support.

- Appeal of an application for a year's support award by a probate court is a de novo proceeding in the superior court, and as such, the appeal is subject to the established procedures for civil actions, thus entitling a party to invoke summary judgment. Bright v. Knecht, 182 Ga. App. 820, 357 S.E.2d 159 (1987).

Issues never raised on appeal.

- Upon a wife's request for year's support, because a son never presented argument or evidence to contest the amount sought by the wife, never sought a hearing on the amount, and failed to rebut the wife's claim of entitlement to that support, the son's claims of error on appeal from an order granting the wife summary judgment in the superior court lacked merit. In re Estate of Avery, 281 Ga. App. 904, 637 S.E.2d 504 (2006).

Am. Jur. 2d.

- 47 Am. Jur. 2d, Justices of the Peace, §§ 50, 51.

C.J.S.

- 5 C.J.S., Appeal and Error, § 886 et seq.

ALR.

- Review on appeal of evidence as to genuineness of disputed documents, 6 A.L.R. 507; 12 A.L.R. 212; 27 A.L.R. 319.

May new trial or reversal for error as to measure of damages against one or more of the parties be restricted to those parties, 32 A.L.R. 255.

First decision of intermediate court as law of the case on appeal to court of last resort from subsequent decision, 41 A.L.R. 1078; 118 A.L.R. 1286.

Evidence erroneously stricken out as proper for consideration by appellate court to sustain finding or verdict, 152 A.L.R. 371.

Propriety and prejudicial effect of prosecutor's remarks as to victim's age, family circumstances, or the like, 50 A.L.R.3d 8.