O.C.G.A. § 5-3-3 — Persons by whom appeal may be entered generally; attorney's authority to appeal to be in writing; dismissal for failure to file; ratification of unauthorized appeal

An appeal may be entered by the plaintiff or defendant in person, or by his attorney at law or in fact and, if by the latter, he must be authorized in writing, which authority shall be filed in the court in which the case is pending at the time the appeal is entered; but if it is shown to the court that the authority exists, the court may allow a reasonable time to file the same. Upon failure to so file, the appeal shall be dismissed and execution shall issue without further order. If the authority is not filed within the time allowed, a ratification of an unauthorized appeal, if made in writing and filed in the clerk's office before the next term of the court, shall render the appeal valid.

(Orig. Code 1863, § 3535; Code 1868, § 3558; Code 1873, § 3615; Code 1882, § 3615; Civil Code 1895, § 4457; Civil Code 1910, § 5002; Code 1933, § 6-104.)

JUDICIAL DECISIONS

Appeals without written authority.

- Former Civil Code 1895, § 4237 and 4457 (see O.C.G.A. § 15-19-5 and5-3-3, respectively) permitted attorneys at law to enter appeals without written authority. Friar v. Curry, Arrington & Co., 119 Ga. 908, 47 S.E. 206 (1904); Nathan v. Lamb, 18 Ga. App. 39, 88 S.E. 794 (1916).

Assessor's award in condemnation proceedings.

- Attorney at law for municipality may file appeal to assessor's award in condemnation proceedings. Potts v. City of Atlanta, 140 Ga. 431, 79 S.E. 110 (1913).

Attorneys in fact cannot enter appeals absent writing sufficiently establishing authority to do so. Lovelady v. Franklin Davis Nursery Co., 113 Ga. 324, 38 S.E. 748 (1901); Lovejoy v. Franklin Davis Nursery Co., 115 Ga. 714, 42 S.E. 151 (1902).

Agent created by parol cannot enter appeal. Cook v. Buchanan, 86 Ga. 760, 13 S.E. 83 (1891).

When written authority has been lost, appeal may be ratified. Booten v. Bank of Empire State, 67 Ga. 358 (1881).

Agent cannot show authority by ex parte affidavit. Bank of Empire State v. Booten, 52 Ga. 653 (1874).

Receiver cannot enter appeal unless receiver is party to proceedings. Dupree v. Drake, 94 Ga. 456, 19 S.E. 242 (1894).

Cited in McCoy v. Sasnett, 77 Ga. App. 819, 49 S.E.2d 913 (1948); State Hwy. Dep't v. Sumner, 102 Ga. App. 1, 115 S.E.2d 787 (1960); State Hwy. Dep't v. Hester, 112 Ga. App. 51, 143 S.E.2d 658 (1965); Schwindler v. State, 261 Ga. App. 30, 581 S.E.2d 619 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 231 et seq.

C.J.S.

- 4 C.J.S., Appeal and Error, § 325 et seq.

ALR.

- Right of trustee of express trust to appeal from order or decree not affecting his own personal interest, 6 A.L.R.2d 147.

Attorney's right to institute or maintain appeal where client refuses to do so, 91 A.L.R.2d 618.

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TITLE 5 APPEAL AND ERROR

Section 3. Appeals to Superior or State Court, 5-3-1 through 5-3-31.

ARTICLE 1 GENERAL PROVISIONS

5-3-3. Persons by whom appeal may be entered generally; attorney's authority to appeal to be in writing; dismissal for failure to file; ratification of unauthorized appeal.