O.C.G.A. § 5-3-31 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION ASSESSMENT OF DAMAGES APPLICATION General Consideration Purpose of section. - Purpose of this section is to inflict punishment and to compensate respondent for delay, costs, and vexation caused by frivolous appeal. Garrison v. Wilcoxson, 11 Ga. 154 (1852); Adams v. Carnes, 111 Ga. 505, 36 S.E. 597 (1900); Hardy v. Truitt, 20 Ga. App. 529, 93 S.E. 149 (1917). Exclusivity of remedy. - O.C.G.A. § 5-3-31 does not provide the exclusive remedy for imposition of sanctions for appeals to the superior court; the statute applies only to cases of appeal wherein the jury returns a verdict for a sum of money. Osofsky v. Board of Mayor & Comm’rs, 237 Ga. App. 404, 515 S.E.2d 413 (1998). To justify assessment of damages, appeal must be both frivolous and intended for delay. Gunnels v. Deavours, 57 Ga. 177 (1876). When appeal deemed for purpose of delay. - Appeal is intended to delay only when entirely without merit and entered

merely to postpone creditor in collection of debt. Clark v. Fee, 86 Ga. 9, 12 S.E. 181 (1890). Appellant’s failure to submit evidence, by itself, is not conclusive of issue of intent to delay. Gilmore v. Wright, 20 Ga. 198 (1856). In determining whether appeal is frivolous and intended to delay, the jury must consider all evidence. Garrison v. Wilcoxson, 11 Ga. 154 (1852). Cited in Tommey & Stewart v. Finney, 45 Ga. 155 (1872); Robinson v. Medlock, 59 Ga. 598 (1877). Assessment of Damages For determination by jury. - Amount of damages (under subsection (a)) is for determination by jury, uninfluenced by opinion of court. McMillan v. Lawrence, Smith & Whilden, 25 Ga. 189 (1858). Appropriate considerations in determining damages under section. - See McMillan v. Lawrence, Smith &

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Whilden, 25 Ga. 189 (1858). Maximum award only in extreme cases. - Only in extreme cases should 25 percent maximum damages be awarded. McMillan v. Lawrence, Smith & Whilden, 25 Ga. 189 (1858). Application O.C.G.A. § 5-3-31 applies only to appeals which are de novo investigations. Butlerhouse Maintenance Co. v. Greeson, 174 Ga. App. 637, 331 S.E.2d 46 (1985). Section applicable only to cases when money verdicts are rendered. - Inasmuch as provisions of section are necessarily applicable to those cases only in which money verdicts are rendered, the judgment cannot be enforced in claim cases. Adams v. Carnes, 111 Ga. 505, 36 S.E. 597 (1900). Section applicable to appeal by garnishee. Davis v. Rhodes, 112 Ga. 106, 37 S.E. 169 (1900). Section not applicable to appeal of Workers’ Compensation Board decisions. - Provisions of O.C.G.A. § 5-3-31

providing for the award of attorney’s fees against a party bringing a frivolous appeal do not apply to appeals to the superior court of decisions of the Workers’ Compensation Board pursuant to O.C.G.A. § 34-9-105. Butlerhouse Maintenance Co. v. Greeson, 174 Ga. App. 637, 331 S.E.2d 46 (1985). Appeal presenting bona fide contest or seeking ruling on open or doubtful question. - If, after reviewing the whole matter the court believes that the plaintiff in error is presenting a bona fide contest over a colorable matter, though the plaintiff ’s view of the law may not in fact be well founded, or that the plaintiff is seeking a ruling upon an open or doubtful question, damages will be refused. United States Fid. & Guar. Co. v. Blankenship Plumbing Co., 153 Ga. App. 335, 265 S.E.2d 66 (1980). Property alienated pending appeal is bound for payment of damages for frivolous appeal just as it is for payment of the rest of the amount of appeal judgment. Phillips v. Behn & Foster, 19 Ga. 298 (1856).

RESEARCH REFERENCES Am. Jur. 2d. - 5 Am. Jur. 2d, Appellate Review, §§ 891, 892. C.J.S. - 5 C.J.S., Appeal and Error, § 754.

ALR. - Award of damages for dilatory tactics in prosecuting appeal in state court, 91 ALR3d 661.

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CHAPTER 4 CERTIORARI TO SUPERIOR COURT Sec.

When certiorari shall lie; exception. Petition for certiorari to probate judge generally. Petition for certiorari to inferior judicatories generally. Petition for certiorari in appeal case tried by jury in justice of the peace court generally [Repealed]. Bond and security required; certificate of payment of costs; oath of security; affidavit of indigence. Time for application for writ; filing of petition; service of petition and writ. Time for filing of answer; manner of service; effect of failure to perfect service. Writing or dictation of answer by parties, attorneys, or interested persons; when verification required. Filing of traverse or exception to answer; perfection of answer. Amendment of petition, bond, answer, and traverse.

Cross references. - Exercise of judicial power, Ga. Const. 1983, Art. VI, Sec. I, Para. IV. Procedure for appeals from decisions of superior court reviewing decisions of lower courts by certiorari, § 5-6-35.

Sec.

Conduct of hearing generally; trial by jury. Grounds of error considered generally; scope of review; technical distinctions abolished. Grant of writ for failure to prove venue or time of criminal offense. Dismissal or return of writ to lower court with instructions; entry by superior court of final decision where no questions of fact involved. Requirement of new trial when writ not answered. Recovery of costs by plaintiff where certiorari sustained; recovery of costs by plaintiff where certiorari returned to lower court for new trial. Recovery of costs by defendant generally. Recovery of damages for frivolous certiorari. Operation of writ of certiorari as supersedeas in civil cases. Supersedeas of criminal conviction; bond; affidavit of indigence; effect of supersedeas.

Description of extent of authority of superior court to exercise appellate jurisdiction and to exercise general supervision over all inferior tribunals, § 15-6-8.

JUDICIAL DECISIONS Includable grounds. - For certiorari, petition must set forth all of grounds asserted as error but may include only those grounds that were insisted upon at trial or hearing. Further, when it does not appear from the record that those issues were

made in the trial court, the issues can not be raised by certiorari in the superior court, or reviewed in the Court of Appeals. Willis v. Jackson, 148 Ga. App. 432, 251 S.E.2d 341 (1978).

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RESEARCH REFERENCES Am. Jur. 2d. - 14 Am. Jur. 2d, Certiorari, § 1 et seq. C.J.S. - 14 C.J.S., Certiorari, § 1 et seq.

ALR. - Payment of fine, serving sentence, or discharge on habeas corpus, as waiver of right to review conviction, 18 ALR 867; 74 ALR 638.