O.C.G.A. § 5-6-16 (2019)
Time for appeal by representative where party dies after trial; effect of entry of appeal and of failure to enter appeal; when appeal heard
(a) When either the plaintiff or the defendant dies after a case has been tried and before the expiration of the time within which the party, if living, might have entered an appeal, and no appeal has been entered, the legal representative of the deceased party may enter an appeal within 30 days from the time he qualifies. If an appeal is not entered within the time prescribed in this Code section, judgment may be entered and execution issued as though the deceased party were alive, without making the representative a party.
(b) When an appeal is entered as provided in subsection (a) of this Code section, it shall not be necessary to revive the action, but it shall be revived by the appealing party giving notice to the adverse party within 30 days from the time of entering the appeal. When a defendant appeals, the case shall stand for trial on the appeal docket at the first term of the court after the expiration of six months from the qualification of the executor or administrator.
(c) In case of the death or removal from office of any executor or administrator pending such proceedings as are prescribed in subsections (a) and (b) of this Code section, an administrator de bonis non may be made a party in like manner. (Laws 1843, Cobb’s 1851 Digest, pp. 474, 502; Code 1863, §§ 3358, 3359, 3361; Code 1868, §§ 3377, 3378, 3380; Code 1873, §§ 3425, 3426, 3428; Code 1882, §§ 3425, 3426, 3428; Civil Code 1895, §§ 5023, 5024, 5026; Civil Code 1910, §§ 5605, 5606, 5608; Code 1933, §§ 3-408, 3-409, 3-411.)
Annotations
Cross references. - Death of party, Rules of the Supreme Court of the State of Georgia, Rule 10. Parties, Rules of the
Court of Appeals of the State of Georgia, Rule 39.
JUDICIAL DECISIONS Section changed common law. Mims v. McKenzie, 22 Ga. App. 571, 96 S.E. 441 (1918). Administrator de bonis non may be made party to suit in county of executor’s residence. - Administrator de bonis non is permitted to be made party to suit pending in county of residence of the executor. Walton v. Gill, 46 Ga. 600 (1872). No application to foreign execu-
tors. - Rule that an administrator de bonis may be made party to a suit in the county of the executor’s residence does not apply to suits by foreign executors. Jones v. Lamar, 77 Ga. 149 (1886). Section inapplicable when plaintiff executor died before trial. Edwards v. Sosebee, 188 Ga. 602, 4 S.E.2d 473 (1939). Cited in Waldrop v. Nolan, 192 Ga. 234, 15 S.E.2d 225 (1941); Eubank v.
Page: 498
GA RV 13 RV 4(T4-6) - EP
Date: 06/14/13 Time: 12:43:34
Barber-Colman Co., 115 Ga. App. 217, 154 S.E.2d 638 (1967). RESEARCH REFERENCES Am. Jur. 2d. - 1 Am. Jur. 2d, Abatement, Survival, and Revival, §§ 46, 103. C.J.S. - 1 C.J.S., Abatement and Revival, §§ 133, 138 et seq. 67A C.J.S., Parties, § 80 et seq. ALR. - Right of administrator de bonis non to recover proceeds of personal property of the estate converted by his predecessor, 3 ALR 1252. Right to revive by amendment an action dismissed by judgement entered upon plea of abatement or demurrer, 106 ALR 570. Death of principal defendant as abating or dissolving garnishment or attachment, 131 ALR 1146. Death of party to divorce suit after final divorce decree, but pending appeal or period allowed for appeal, 148 ALR 1111. Right of substitution of successive per-
sonal representatives as party plaintiff, 164 ALR 702. Order granting or denying revival of action after death of party as final order subject to appeal, 167 ALR 261. Continuance of civil case because of illness or death of party, 68 ALR2d 470. Validity of exception for specific kind of tort action in survival statute, 77 ALR3d 1349. Effect of death of party to divorce proceeding pending appeal or time allowed for appeal, 33 ALR4th 47. Abatement of state criminal case by accused’s death pending appeal of conviction - modern cases, 80 ALR4th 189. Abatement effects of accused’s death before appellate review of federal criminal conviction, 80 ALR Fed. 446.
ARTICLE 2 APPELLATE PRACTICE
Law reviews. - For article suggesting change in Georgia appellate procedure prior to the adoption of the Appellate Practice Act, see 15 Ga. B.J. 322 (1953). For article advocating reform of appellate procedure prior to the adoption of the Appellate Practice Act, see 18 Ga. B.J. 415 (1956). For article outlining proposed revisions of appellate procedure rules with comments, prior to the adoption of the Appellate Practice Act, see 19 Ga. B.J. 145 (1956). For article, ‘‘A Discussion of the 1957 Amendments to Rules of Practice and Procedure in Georgia,’’ see 19 Ga. B.J. 395 (1957). For article discussing results of legislative changes in appellate procedure, prior to the enactment of the Appellate Practice Act, see 20 Ga. B.J. 38 (1957). For article, ‘‘The Appellate Proce-
dure Act of 1965’’ (this article), see 1 Ga. St. B.J. 451 (1965). For article, ‘‘1966 Amendments to the Appellate Procedure Act of 1965’’ (this article), see 2 Ga. St. B.J. 433 (1966). For article, ‘‘The 1967 Amendments to the Georgia Civil Practice Act and the Appellate Procedure Act’’ (this article), see 3 Ga. St. B.J. 383 (1967). For article discussing problems in Georgia appellate procedure after the adoption of the Appellate Practice Act of 1965 (this article), see 5 Ga. St. B.J. 231 (1968). For article discussing developments in Georgia appellate practice and procedure in 1976 to 1977 (this article), see 29 Mercer L. Rev. 21 (1977). For annual survey of appellate practice and procedure, see 36 Mercer L. Rev. 79 (1984).
JUDICIAL DECISIONS Legislative intent was to provide a uniform post-trial procedure in all courts of this state from which a writ of error (see
O.C.G.A. § 5-6-50) would lie to Supreme Court or Court of Appeals at time of passage. White Oak Acres, Inc. v. Campbell,
Page: 499
Date: 06/14/13 Time: 13:20:44
GA RV 13 RV 4(T4-6) - EP
113 Ga. App. 833, 149 S.E.2d 870 (1966); Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967). Clear intent is to simplify procedures and avoid dismissal on appeal on account of technical deficiencies. Continental Cas. Co. v. Stephenson, 114 Ga. App. 555, 152 S.E.2d 5 (1966). Forms of appeals and enumerations of error are governed by practically unlimited looseness authorized by this article. Thomas v. Scott, 221 Ga. 875, 148 S.E.2d 300 (1966) (see O.C.G.A. Art. 2, Ch. 6, T. 5). Compliance is prerequisite to appellate jurisdiction. - Appellate court lacks jurisdiction to review judgment sought to be appealed when the appellant fails to follow procedure which confers
jurisdiction upon the appellate court. Associated Distribs., Inc. v. Willard, 242 Ga. 247, 248 S.E.2d 645 (1978). Court’s general powers cannot be used to correct noncompliance. - While a court may have the general power to enter certain types of orders, such as those allowing late filing of papers or those entered or effective nunc pro tunc, that power cannot be used to correct failure to comply with the mandatory requirements of this article. Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978) (see O.C.G.A. Art. 2, Ch. 6, T. 5). Cited in Crosby v. Crosby, 247 Ga. 792, 279 S.E.2d 712 (1981).
RESEARCH REFERENCES ALR. - Power of legislature to require appellate court to review evidence, 19 ALR 744; 24 ALR 1267; 33 ALR 10. Sufficiency of general objection or exception to evidence admitted without qualification, which was competent against one or more parties, but not all, 106 ALR 467.
Interlocutory ruling or order of one judge as binding on another in same case, 132 ALR 14. Judgment favorable to convicted criminal defendant in subsequent civil action arising out of same offense as ground for reversal of conviction, 96 ALR3d 1174.