O.C.G.A. § 5-3-8 (2019)

Annotations

JUDICIAL DECISIONS Sole provision for dismissing appeal. - This section, except for defects in proceedings, is only provision for dismissing appeal. Rousch v. Green, 2 Ga. App. 112, 58 S.E. 313 (1907). Only provision for dismissal of appeal to superior court, except for defects in appeal proceedings, is found in this section,

which provides that no person shall be allowed to withdraw an appeal after it shall be entered but by consent of adverse party. Rabun v. Planters Cotton Oil Co., 68 Ga. App. 37, 21 S.E.2d 922 (1942). Dismissal of appeal without adverse party’s consent. - Under general law, an appeal is a de novo investigation,

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Date: 06/14/13 Time: 10:58:26

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

and it is error for the court to dismiss the appeal when there is no defect in appeal proceedings, and when the adverse party does not consent for appeal to be withdrawn or dismissed. Rose City Foods, Inc. v. Usry, 86 Ga. App. 307, 71 S.E.2d 649 (1952). Certification of 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 a 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 adverse party, certify case back to 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 appellant’s appeal without consent of adverse party contrary to statutory provisions.

State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939). Attempted withdrawal of appeal by appellant, in vacation. - Attempt by appellant to withdraw, in vacation, appeal from judgment of court of ordinary (now probate court) establishing a will, by entry on docket by clerk of court, is a nullity. Rasberry v. Harville, 90 Ga. 530, 16 S.E. 299 (1892). Applicability to other provisions. - Provisions of former Code 1933, § 6-503 (see O.C.G.A. § 5-3-8) were applicable to appeals in condemnation proceedings instituted under statute governing condemnation by state and national government and all others exercising right of eminent domain. State Hwy. Dep’t v. Blalock, 98 Ga. App. 630, 106 S.E.2d 552 (1958). Cited in Tommey & Stewart v. Finney, 45 Ga. 155 (1872); Robison v. Medlock, 59 Ga. 598 (1877); Ellis v. O’Neal, 175 Ga. 652, 165 S.E. 751 (1932); Bethea County v. Dixon, 72 Ga. App. 384, 33 S.E.2d 723 (1945); State Hwy. Dep’t v. Thomas, 122 Ga. App. 252, 176 S.E.2d 635 (1970); Pilgrim v. Brookfield West, Inc., 136 Ga. App. 619, 222 S.E.2d 137 (1975).

RESEARCH REFERENCES 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.

Public interest as ground for refusal to dismiss an appeal, where question has become moot, or dismissal is sought by one or both parties, 132 ALR 1185.

ARTICLE 2 PROCEDURE