O.C.G.A. § 5-3-7 (2019)

Annotations

Cross references. - Similar provisions regarding suspension of judgment by appeal, § 9-12-19. JUDICIAL DECISIONS Justice’s court judgment remains operative, but incapable of enforcement pending appeal. Haygood v. King, 161 Ga. 732, 132 S.E. 62 (1926); Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942), later appeal, 69 Ga. App. 561, 26 S.E.2d 293 (1943). Effect of statute is to preserve all incidents of judgment except right to enforce the judgment by sale of defendant’s property pending appeal. Watkins v. Angier, 99 Ga. 519, 27 S.E. 718 (1896). Dismissal of appeal by superior court for want of jurisdiction renders county court’s judgment final. Johnson v. Ford, 92 Ga. 751, 19 S.E. 712 (1894). Effect of dismissal of appeal to superior court from judgment of court of ordinary (now probate court) admitting will to probate was to make effective judgment of court of ordinary. Hooks v. Hooks, 197 Ga. 482, 29 S.E.2d 599 (1944). Appellant cannot, without adverse party’s consent, certify case back to inferior court. - In appeal from inferior court, or assessors in condemnation proceeding, to superior court, the law contemplates that if judgment is obtained in superior court the prevailing party is entitled to superior court execution and aid of all processes of superior court to enforce the court’s judgment. A dismissal of the entire case or proceedings with consent of court might be permissible under some circumstances, for this would be a final termination of the entire case or proceedings, but appellant cannot, at will and without consent of the adverse party, certify the case back to the inferior court, or to assessors, and relegate adverse party to processes of inferior court. Such would be the effect of allowing appellant to withdraw the appeal without consent of the adverse party contrary to provisions of former Code 1933, § 6-503 (see O.C.G.A. § 5-3-8). State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939). Dismissal by appealing party. - The appealing party cannot dismiss the appeal

to the prejudice of his coparties, as their rights on appeal are equal to those of the party making the appeal. Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986). Distinction between dismissing case on appeal and dismissing appeal. - Difference must be noted between dismissing case on appeal and dismissing an appeal. The first dismissal lets out whole case while second is an affirmance of judgment below and rights of all parties are same as if no appeal had been entered. Fagan v. McTier, 81 Ga. 73, 6 S.E. 177 (1888); State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939). While appeal only suspends and does not vacate judgment allowing probate in solemn form, so that judgment may again become effective in event of dismissal of appeal, a dismissal of the case vitiates entire proceeding, leaving parties in same status as if no action was ever commenced to probate in solemn form. Hodges v. Libbey, 120 Ga. App. 246, 170 S.E.2d 37 (1969). Time period that lien of judgment is binding. - Where on appeal from judgment in justice’s court appellee is successful, lien of judgment will be taken as binding from date of its original rendition, and entitled to superiority over subsequently rendered judgment, notwithstanding provisions of § 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). Where plaintiff, appellee, obtains judgment on appeal, such judgment, as to priority, is to be treated as being of date when judgment appealed from was entered, and accordingly it takes precedence over another judgment rendered by superior court, older than judgment on appeal, but younger than original judgment entered in justice’s court. Watkins v. Angier, 99 Ga. 519, 27 S.E. 718 (1896). Property bought by defendant before entry of judgment on justice’s

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GA RV 13 RV 4(T4-6) - EP

docket is bound by subsequent judgment in superior court. Dodd & Co. v. Glover, 102 Ga. 82, 29 S.E. 158 (1897). Statute of limitations does not run while appeal is pending. - Statute of limitations does not run in favor of plaintiff in error as to judgment in justice’s court, and execution cannot be issued upon such judgment pending appeal in superior court. Twitty v. Bower, 84 Ga. 751, 11 S.E. 354 (1890). Cited in Robinson v. Medlock, 59 Ga. 598 (1877); East Tenn., V. & Ga. R.R. v.

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Miles, 72 Ga. 252 (1884); Rasberry v. Harville, 90 Ga. 530, 16 S.E. 299 (1892); Reagan v. Powell, 125 Ga. 89, 53 S.E. 580 (1906); Jones v. Cannady, 78 Ga. App. 453, 51 S.E.2d 551 (1949); Garrison v. McGuire, 114 Ga. App. 665, 152 S.E.2d 624 (1966); Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981); Nelson v. Smothers, 168 Ga. App. 120, 308 S.E.2d 239 (1983); Williamson v. Lucas, 78 Bankr. 372 (Bankr. M.D. Ga. 1987); Georgia Mental Health Inst. v. Brady, 263 Ga. 591, 436 S.E.2d 219 (1993).

RESEARCH REFERENCES Am. Jur. 2d. - 5 Am. Jur. 2d, Appellate Review, §§ 387 et seq., 543, 814. C.J.S. - 5 C.J.S., Appeal and Error, § 748 et seq. ALR. - First decision of intermediate court as law of the case on appeal to court of last resort from subsequent decision, 41 ALR 1078; 118 ALR 1286. Judgment in tort action as subject of assignment, attachment, or garnishment pending appeal, 121 ALR 420. Running of limitations against proceeding to renew or revive judgment as affected by appeal or right of appeal from judgment, or by motion or right to move for new trial, 123 ALR 565. Liability of insurer under policy indemnifying against liability or loss as affected

by pendency of appeal or motion for new trial from judgment against insured or by the fact that time for appeal or motion for new trial has not expired, 125 ALR 755. Decree on bill of review reversing prior decree as affecting purchaser or mortgagee of real property in the interval between the original decree and the filing of the bill of review, 150 ALR 676. Defeated party’s payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal, 39 ALR2d 153. Conviction from which appeal is pending as bar to another prosecution for same offense, 61 ALR2d 1224. Judgment subject to appeal as entitled to full faith and credit, 2 ALR3d 1384.