Editor's notes.

- In light of the similarity of the issues dealt with under the provisions, decisions under former Code 1933, Code Section 6-902, as it read prior to revision by Ga. L. 1965, p. 18 are included in the annotations for this Code section.

Requirements of section are jurisdictional and failure to comply with those requirements mandates dismissal of appeal. Thompkins v. State, 157 Ga. App. 203, 276 S.E.2d 885 (1981); Underwood v. Lanier Home Ctr., Inc., 239 Ga. App. 282, 521 S.E.2d 207 (1999).

Appeal dismissed when notice of appeal not timely filed and no extension obtained. Jenkins v. State, 120 Ga. App. 318, 170 S.E.2d 435 (1969); Associated Bldrs. Supply v. Georgia-Pacific Corp., 123 Ga. App. 222, 180 S.E.2d 273 (1971); Carroll v. Holland, 228 Ga. 649, 187 S.E.2d 531 (1972); Mayo v. State, 148 Ga. App. 213, 251 S.E.2d 80 (1978).

Fact that appellant was a fugitive from justice does not excuse noncompliance with O.C.G.A. § 5-6-38. Noncompliance with § 5-6-38 is not remedied simply because the appellant is a fugitive from justice until after expiration of time allowed for filing of notice of appeal. Thompkins v. State, 157 Ga. App. 203, 276 S.E.2d 885 (1981).

Defendant waives right to appeal by remaining a fugitive during period when the defendant is authorized by statute to file a motion for new trial or notice of appeal. Saleem v. State, 152 Ga. App. 552, 263 S.E.2d 490 (1979).

Substantial compliance sufficient.

- It is sufficient if notification-of-appeal-process provisions are substantially complied with. Oller v. State, 187 Ga. App. 818, 371 S.E.2d 455 (1988).

This section specifically authorizes independent appeal. Each party has right to make motion for new trial independently of other and to test ruling thereon. Brissette v. Munday, 115 Ga. App. 131, 153 S.E.2d 606 (1967).

Subsection (a) of O.C.G.A. § 5-6-38 gives an appellant the right to file a cross-appeal, yet specifically preserves an appellant's option to file an independent appeal. Ammari v. Sohn, 197 Ga. App. 486, 398 S.E.2d 804 (1990).

Ga. L. 1967, p. 226, §§ 5, 6 (see O.C.G.A. § 9-11-6(e)) does not apply to Ga. L. 1968, p. 1072, § 7 (see O.C.G.A. § 5-6-38), filing time not being predicated on service of notice. Akin v. Sanders, 228 Ga. 251, 184 S.E.2d 660 (1971).

Construction when meaning of section is unambiguous.

- When language is plain, unambiguous, and positive, and is not capable of two constructions, no court has a right to construe the statute to mean anything other than what the statute declares, and this rule, of course, precludes courts from construing the statute according to what is supposed to be legislative intent. Bailey v. Bonaparte, 125 Ga. App. 512, 188 S.E.2d 119 (1972).

Word "appellee" as used in section should be liberally construed.

- Interpretation of word "appellee," as used in section, to mean only party against whom appeal is taken and who has a particular interest adverse to setting aside judgment appealed is too restrictive because a liberal construction of section comports with policies of this article, enhances efficient administration of justice, and avoids multiplicity of appeals. Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676 (1978).

Appellee is party in cause against whom appeal is taken. Glennville Wood Preserving Co. v. Riddlespur, 156 Ga. App. 578, 276 S.E.2d 248 (1980), aff'd in part and rev'd in part on other grounds, Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317, 380 S.E.2d 704 (1989).

Appellee becomes such when appeal is taken against appellee by appellant. Glennville Wood Preserving Co. v. Riddlespur, 156 Ga. App. 578, 276 S.E.2d 248 (1980), aff'd in part and rev'd in part on other grounds, Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317, 380 S.E.2d 704 (1989).

Words "otherwise finally disposing of" can mean only dismissal or withdrawal of motion. Golden v. Credico, Inc., 124 Ga. App. 700, 185 S.E.2d 578 (1971).

Disposition of appeal not res judicata regarding issues raised by subsequent motion for new trial.

- When notice of appeal is filed before filing of extraordinary motion for new trial, disposition of appeal will not be res judicata as to issues raised by subsequently filed motion. Music v. State, 244 Ga. 832, 262 S.E.2d 128 (1979).

Unappealed sentence may not be later attacked.

- When a sentence is not appealed within 30 days of the sentence's rendition, the sentence may not be later attacked. Beeks v. State, 169 Ga. App. 499, 313 S.E.2d 760 (1984).

Extraordinary motion for new trial.

- Extraordinary motion for new trial was improper when the motion was based only on the general grounds and various evidentiary rulings made during the course of the trial, these are matters which could and should have been discovered and raised in a timely filed ordinary motion for new trial. Bohannon v. State, 203 Ga. App. 783, 417 S.E.2d 679 (1992).

Addressing of errors in first trial when new trial granted.

- When the trial court grants a motion for a directed verdict, then grants a motion for a new trial, ruling that the directed verdict motion was improvidently granted, and a second trial is conducted, followed by an appeal by the losing party, the appellate court is concerned only with the trial court's orders in the second trial and cannot address any enumerations of error as to the final orders of the trial court in the previous trial, as these judgments were not timely appealed. Vanguard Ins. Co. v. Beasley, 167 Ga. App. 625, 307 S.E.2d 56 (1983).

Time is a jurisdictional element of appeal. Wren v. Josey, 97 Ga. App. 593, 103 S.E.2d 745 (1958) (decided under former Code 1933, § 6-902, as it read prior to the revision by Ga. L. 1965, p. 18).

Court had jurisdiction over appeal.

- When a defendant filed a notice of appeal within 30 days of the judgment, having previously filed a motion for a new trial after the verdict but before the defendant was sentenced, and later withdrew the motion for new trial, the appellate court had jurisdiction to consider the merits of the defendant's appeal. Hann v. State, 292 Ga. App. 719, 665 S.E.2d 731 (2008).

Illness and death of sole counsel for nonresident litigant does not excuse noncompliance with section.

- Not even illness and death of sole counsel for nonresident litigant, unaware of this fact, affords Supreme Court grounds for hearing and determining writ of error (see O.C.G.A. §§ 5-6-49,5-6-50) not sued out within time required by section. Wren v. Josey, 97 Ga. App. 593, 103 S.E.2d 745 (1958) (decided under former Code 1933, § 6-902, as it read prior to the revision by Ga. L. 1965, p. 18).

Record controls when the record conflicts with notice of appeal as to date motion is overruled.

- When there is a conflict between recitals in bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50) and record as to date motion for new trial was overruled, the record controls. Malone v. Evans, 74 Ga. App. 34, 38 S.E.2d 816 (1946) (decided under former Code 1933, § 6-902, as it read prior to the revision by Ga. L. 1965, p. 18).

Cited in Close v. Walker Land Corp., 221 Ga. 329, 145 S.E.2d 245 (1965); Stanford v. Evans, Reed & Williams, 221 Ga. 331, 145 S.E.2d 504 (1965); Williams v. State, 112 Ga. App. 566, 145 S.E.2d 765 (1965); Rhett v. State, 112 Ga. App. 567, 145 S.E.2d 823 (1965); Banks v. Banks, 221 Ga. 626, 146 S.E.2d 636 (1966); Mobley v. State, 221 Ga. 716, 146 S.E.2d 735 (1966); Taylor v. Haygood, 113 Ga. App. 30, 147 S.E.2d 48 (1966); Smith v. Smith, 113 Ga. App. 111, 147 S.E.2d 466 (1966); Birdwell v. Pippen, 113 Ga. App. 202, 147 S.E.2d 673 (1966); Seaton v. Redisco, Inc., 113 Ga. App. 256, 147 S.E.2d 828 (1966); Lanier v. Fuller, 113 Ga. App. 234, 147 S.E.2d 875 (1966); Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55 (1966); Bivens v. Todd, 222 Ga. 84, 148 S.E.2d 424 (1966); Black v. Miller, 114 Ga. App. 208, 150 S.E.2d 466 (1966); Walker v. Walker, 222 Ga. 521, 150 S.E.2d 635 (1966); Sayers v. Rothberg, 222 Ga. 626, 151 S.E.2d 445 (1966); Kahn v. Graper, 114 Ga. App. 572, 152 S.E.2d 10 (1966); Atlanta Funtown, Inc. v. Crouch, 114 Ga. App. 702, 152 S.E.2d 583 (1966); Daniel v. Daniel, 222 Ga. 861, 152 S.E.2d 873 (1967); Wiggin v. Wiggin, 223 Ga. 63, 153 S.E.2d 306 (1967); Hicks v. Maple Valley Corp., 223 Ga. 69, 153 S.E.2d 547 (1967); Langdale Co. v. Day, 115 Ga. App. 30, 153 S.E.2d 671 (1967); Condon v. Thornton, 115 Ga. App. 129, 153 S.E.2d 726 (1967); Turner v. Bogle, 115 Ga. App. 710, 155 S.E.2d 667 (1967); Bailey v. State, 224 Ga. App. 48, 159 S.E.2d 286 (1968); Mixon v. Hall, 117 Ga. App. 626, 161 S.E.2d 429 (1968); Maddox v. Maddox, 224 Ga. 313, 161 S.E.2d 870 (1968); Collins v. Southside Lumber Co., 118 Ga. App. 342, 163 S.E.2d 755 (1968); Lamas Co. v. Baldwin, 118 Ga. App. 437, 164 S.E.2d 236 (1968); Daniels v. Allen, 118 Ga. App. 722, 165 S.E.2d 449 (1968); Spadea v. Spadea, 225 Ga. 80, 165 S.E.2d 836 (1969); Smith v. Smith, 225 Ga. 241, 167 S.E.2d 597 (1969); Shepherd v. Shepherd, 225 Ga. 455, 169 S.E.2d 314 (1969); Atlanta Gas Light Co. v. Roberson, 120 Ga. App. 361, 170 S.E.2d 587 (1969); Genins v. Genins, 226 Ga. 70, 172 S.E.2d 416 (1970); Campbell v. Carroll, 121 Ga. App. 497, 174 S.E.2d 375 (1970); State Hwy. Dep't v. Sullivan, 121 Ga. App. 767, 175 S.E.2d 152 (1970); Merchants & Mfrs. Transf. Co. v. Auto Rental & Leasing, Inc., 121 Ga. App. 729, 175 S.E.2d 156 (1970); Hughes v. State, 226 Ga. 721, 177 S.E.2d 243 (1970); G.E.C. Corp. v. Southern Fabricators, Inc., 122 Ga. App. 452, 177 S.E.2d 497 (1970); Alf v. Alf, 226 Ga. 880, 178 S.E.2d 187 (1970); Petty v. Petty, 227 Ga. 521, 181 S.E.2d 859 (1971); Kokotis v. Lightsey, 227 Ga. 800, 183 S.E.2d 383 (1971); Chaffin v. Stynchcombe, 228 Ga. 582, 187 S.E.2d 140 (1972); Moss v. Strother Ford, Inc., 125 Ga. App. 347, 187 S.E.2d 570 (1972); Wood v. Atkinson, 229 Ga. 179, 190 S.E.2d 46 (1972); McDonald v. Rogers, 229 Ga. 369, 191 S.E.2d 844 (1972); Model Cleaners & Laundry, Inc. v. Per Corp., 127 Ga. App. 559, 194 S.E.2d 258 (1972); Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974); Irby v. Christian, 130 Ga. App. 375, 203 S.E.2d 284 (1973); Wilson v. City of Waycross, 130 Ga. App. 253, 203 S.E.2d 301 (1973); A & D Barrel & Drum Co. v. Fuqua, 132 Ga. App. 827, 209 S.E.2d 272 (1974); Thomas v. Allstate Ins. Co., 133 Ga. App. 193, 210 S.E.2d 361 (1974); Flintwood, Inc. v. Johnson, 134 Ga. App. 78, 213 S.E.2d 180 (1975); Thibadeau v. Henley, 233 Ga. 884, 213 S.E.2d 657 (1975); Fastenberg v. Associated Distribs., Inc., 134 Ga. App. 213, 213 S.E.2d 898 (1975); Gresham v. John Roth Assocs., 134 Ga. App. 691, 215 S.E.2d 538 (1975); In re Thomas, 134 Ga. App. 728, 215 S.E.2d 735 (1975); Curry v. Hopper, 234 Ga. 642, 217 S.E.2d 155 (1975); Horton v. Horton, 235 Ga. 227, 219 S.E.2d 88 (1975); Shannon Co. v. Heneveld, 235 Ga. 635, 221 S.E.2d 200 (1975); Miller v. Georgia Real Estate Comm'n, 136 Ga. App. 718, 222 S.E.2d 183 (1975); Venable v. Block, 138 Ga. App. 215, 225 S.E.2d 755 (1976); Dargan, Whitington & Conner, Inc. v. Kitchen, 138 Ga. App. 414, 226 S.E.2d 482 (1976); Davis v. Davis, 139 Ga. App. 599, 229 S.E.2d 81 (1976); Beatty v. Underground Atlanta, 237 Ga. 844, 229 S.E.2d 615 (1976); Rollins Communications, Inc. v. Henderson, Few & Co., 140 Ga. App. 504, 231 S.E.2d 412 (1976); Smith v. State, 140 Ga. App. 492, 231 S.E.2d 493 (1976); DOT v. Knight, 238 Ga. 225, 232 S.E.2d 72 (1977); McEver v. State, 141 Ga. App. 429, 233 S.E.2d 504 (1977); Heller v. Board of Comm'rs, 238 Ga. 501, 233 S.E.2d 761 (1977); Beatty v. Underground Atlanta, Inc., 141 Ga. App. 542, 233 S.E.2d 886 (1977); Smith v. State, 238 Ga. 655, 235 S.E.2d 375 (1977); Pugmire Lincoln Mercury, Inc. v. Sorrells, 142 Ga. App. 444, 236 S.E.2d 113 (1977); Deroller v. Powell, 144 Ga. App. 585, 241 S.E.2d 469 (1978); Love v. State, 144 Ga. App. 728, 242 S.E.2d 278 (1978); Miller v. State, 146 Ga. App. 7, 245 S.E.2d 442 (1978); United States Fire Ins. Co. v. Farris, 146 Ga. App. 177, 245 S.E.2d 868 (1978); Hartley v. State, 146 Ga. App. 658, 247 S.E.2d 126 (1978); Bozard v. J.A. Jones Constr. Co., 146 Ga. App. 877, 247 S.E.2d 605 (1978); Kiplinger v. Kiplinger, 242 Ga. 465, 249 S.E.2d 254 (1978); Moski v. Public Serv. Comm'n, 148 Ga. App. 28, 251 S.E.2d 9 (1978); Jenkins v. State, 149 Ga. App. 401, 254 S.E.2d 914 (1978); Black v. Cotton States Ins. Co., 149 Ga. App. 71, 253 S.E.2d 565 (1979); Garrett v. Heisler, 149 Ga. App. 240, 253 S.E.2d 863 (1979); Jones v. Monroe Nursing Home, Inc., 149 Ga. App. 582, 254 S.E.2d 902 (1979); Canup v. State, 150 Ga. App. 794, 258 S.E.2d 907 (1979); Shipman v. Horizon Corp., 151 Ga. App. 242, 259 S.E.2d 221 (1979); Hardy v. Georgia Power Co., 151 Ga. App. 805, 261 S.E.2d 748 (1979); Southern Disct. Co. v. Ector, 152 Ga. App. 244, 262 S.E.2d 457 (1979); Moore v. Reeves, 153 Ga. App. 517, 266 S.E.2d 810 (1980); Bergen v. Martindale-Hubbell, Inc., 245 Ga. 742, 267 S.E.2d 10 (1980); Oxley v. Little Switz. Brewing Co., 154 Ga. App. 36, 267 S.E.2d 460 (1980); Bennett v. Caton, 154 Ga. App. 515, 268 S.E.2d 786 (1980); Parker v. State, 156 Ga. App. 299, 274 S.E.2d 694 (1980); Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 274 S.E.2d 786 (1980); Cook v. State, 157 Ga. App. 23, 276 S.E.2d 84 (1981); Kaplan v. City of Atlanta, 158 Ga. App. 58, 279 S.E.2d 307 (1981); Village Ctrs., Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981); Black v. Georgia Power Co., 158 Ga. App. 620, 281 S.E.2d 639 (1981); Hall v. Hall, 159 Ga. App. 52, 282 S.E.2d 699 (1981); Washington v. State, 158 Ga. App. 829, 282 S.E.2d 776 (1981); Pessolano v. George R. Price & Assocs., 159 Ga. App. 340, 283 S.E.2d 317 (1981); Austin v. Carter, 248 Ga. 775, 285 S.E.2d 542 (1982); Graves v. American Alloy Steel, Inc., 160 Ga. App. 378, 287 S.E.2d 94 (1981); Joiner v. Perkerson, 160 Ga. App. 343, 287 S.E.2d 327 (1981), overruled on other grounds by Southall v. State, 2017 Ga. LEXIS 33 (Ga. 2017); Ross v. State, 160 Ga. App. 380, 287 S.E.2d 337 (1981); Godfrey v. Kirk, 161 Ga. App. 474, 288 S.E.2d 301 (1982); Hooks v. Gates, 162 Ga. App. 434, 291 S.E.2d 569 (1982); Shepherd v. Metropolitan Property & Liab. Ins. Co., 163 Ga. App. 650, 294 S.E.2d 638 (1982); Freeman v. Gold & White, Inc., 163 Ga. App. 467, 294 S.E.2d 718 (1982); Marshall Erdman & Assocs. v. Georgia State Bd. for Examination, Qualification & Registration of Architects, 164 Ga. App. 283, 296 S.E.2d 219 (1982); Ponder v. State, 164 Ga. App. 574, 298 S.E.2d 561 (1982); Georgia Dep't of Labor v. Sims, 164 Ga. App. 856, 298 S.E.2d 562 (1982); Chadwick v. Frix, 165 Ga. App. 20, 299 S.E.2d 93 (1983); Sayre v. State, 165 Ga. App. 225, 299 S.E.2d 749 (1983); Officenters Int'l Corp. v. Interstate N. Assocs., 166 Ga. App. 93, 303 S.E.2d 292 (1983); Scott v. Liberty Mut. Ins. Co., 168 Ga. App. 815, 310 S.E.2d 772 (1983); Saylor v. Vasconez, 169 Ga. App. 210, 312 S.E.2d 199 (1983); Joseph v. Joseph, 169 Ga. App. 894, 315 S.E.2d 470 (1984); Abney v. State, 170 Ga. App. 265, 316 S.E.2d 845 (1984); State v. Cook, 172 Ga. App. 433, 323 S.E.2d 634 (1984); Savage v. Newsome, 173 Ga. App. 271, 326 S.E.2d 5 (1985)

Crimminger v. Habif, 174 Ga. App. 440, 330 S.E.2d 164 (1985); Whitton v. State, 174 Ga. App. 634, 331 S.E.2d 10 (1985); Henry v. State, 174 Ga. App. 687, 331 S.E.2d 66 (1985); Melton v. State, 177 Ga. App. 134, 338 S.E.2d 701 (1985); Carpets 'N Colors, Inc. v. Hollycraft Carpets, Inc., 177 Ga. App. 534, 339 S.E.2d 793 (1986); International Indem. Co. v. Smith, 178 Ga. App. 4, 342 S.E.2d 4 (1986); City of Atlanta v. Brown, 180 Ga. App. 513, 350 S.E.2d 55 (1986); Hight v. Burden, 180 Ga. App. 716, 350 S.E.2d 471 (1986); Sikes v. State, 181 Ga. App. 210, 351 S.E.2d 732 (1986); Williamson v. State, 182 Ga. App. 49, 354 S.E.2d 868 (1987); Melton v. J.M. Kenith Co., 182 Ga. App. 184, 355 S.E.2d 115 (1987); Rimes v. State, 182 Ga. App. 721, 356 S.E.2d 897 (1987); Attwell v. Lane Co., 182 Ga. App. 813, 357 S.E.2d 142 (1987); Martin v. State, 185 Ga. App. 145, 363 S.E.2d 765 (1988); Robinson v. Kemp Motor Sales, Inc., 185 Ga. App. 492, 364 S.E.2d 623 (1988); Willis v. State, 186 Ga. App. 197, 366 S.E.2d 778 (1988); Booker v. Amdur, 186 Ga. App. 276, 367 S.E.2d 94 (1988); In re Booker, 186 Ga. App. 614, 367 S.E.2d 850 (1988); Hargrove v. Phillips, 186 Ga. App. 525, 368 S.E.2d 123 (1988); McKinney v. State, 187 Ga. App. 702, 371 S.E.2d 196 (1988); In re Doe, 188 Ga. App. 255, 372 S.E.2d 822 (1988); Aldridge v. State, 188 Ga. App. 729, 374 S.E.2d 223 (1988); Shouse v. State, 189 Ga. App. 531, 376 S.E.2d 911 (1988); Gully v. Glover, 190 Ga. App. 238, 378 S.E.2d 411 (1989); Paytee v. State, 190 Ga. App. 291, 380 S.E.2d 92 (1989); Friedman v. Friedman, 259 Ga. 530, 384 S.E.2d 641 (1989); Jones v. Perkins, 192 Ga. App. 343, 384 S.E.2d 927 (1989); McClure v. Gower, 259 Ga. 678, 385 S.E.2d 271 (1989); All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 387 S.E.2d 429 (1989); Southern Farm Bureau Life Ins. Co. v. Douglas, 193 Ga. App. 476, 388 S.E.2d 67 (1989); Clay v. State, 194 Ga. App. 354, 391 S.E.2d 143 (1990); Atlanta Obstetrics & Gynecology Group v. Abelson, 195 Ga. App. 274, 392 S.E.2d 916 (1990); City of Fairburn v. Cook, 195 Ga. App. 265, 393 S.E.2d 70 (1990); Baker v. State, 195 Ga. App. 424, 394 S.E.2d 801 (1990); Moore v. Sinclair, 196 Ga. App. 667, 396 S.E.2d 557 (1990); Dollar v. Department of Human Resources, 196 Ga. App. 698, 396 S.E.2d 913 (1990); Auld v. Weaver, 196 Ga. App. 782, 397 S.E.2d 51 (1990); Precise v. City of Rossville, 196 Ga. App. 870, 397 S.E.2d 133 (1990); O'Kelly v. State, 196 Ga. App. 860, 397 S.E.2d 197 (1990); Walker v. State, 197 Ga. App. 265, 398 S.E.2d 217 (1990); Lytle v. State, 197 Ga. App. 462, 398 S.E.2d 733 (1990); Ferguson v. State, 197 Ga. App. 443, 398 S.E.2d 738 (1990); Jones v. McCoy, 197 Ga. App. 430, 398 S.E.2d 786 (1990); Stevens v. McCarty, 198 Ga. App. 412, 401 S.E.2d 605 (1991); Austin v. State, 199 Ga. App. 54, 404 S.E.2d 477 (1991); Pinkney v. Union, 199 Ga. App. 529, 405 S.E.2d 521 (1991); Stirling v. State, 199 Ga. App. 877, 406 S.E.2d 282 (1991); Bank S. v. Roswell Jeep Eagle, Inc., 200 Ga. App. 489, 408 S.E.2d 503 (1991); Walker v. State, 201 Ga. App. 774, 412 S.E.2d 291 (1991); Southern Gen. Ins. Co. v. Buck, 202 Ga. App. 103, 413 S.E.2d 481 (1991); Hipple v. Brick, 202 Ga. App. 571, 415 S.E.2d 182 (1992); Watson v. State, 202 Ga. App. 667, 415 S.E.2d 306 (1992); Nodvin v. West, 204 Ga. App. 280, 419 S.E.2d 120 (1992); Wal-Mart Stores, Inc. v. Curry, 206 Ga. App. 775, 426 S.E.2d 581 (1992); Vance v. Lomas Mtg. USA, Inc., 263 Ga. 33, 426 S.E.2d 873 (1993); Anaya v. Brooks Auto Parts, Inc., 208 Ga. App. 491, 430 S.E.2d 825 (1993); Calvert Enter., Inc. v. American Medical Int'l, Inc., 208 Ga. App. 525, 431 S.E.2d 132 (1993); Hubbard v. State, 208 Ga. App. 719, 431 S.E.2d 479 (1993); Griffin v. Loper, 209 Ga. App. 504, 433 S.E.2d 653 (1993); Citizens & S. Trust Co. v. Hicks, 216 Ga. App. 338, 454 S.E.2d 207 (1995); Henderson v. State, 265 Ga. 317, 454 S.E.2d 458 (1995); Tranakos v. Miller, 220 Ga. App. 829, 470 S.E.2d 440 (1996); Goodman v. Lake Buckhorn Estates Homeowners Ass'n, 224 Ga. App. 765, 481 S.E.2d 882 (1997); Carter v. Fayette County, 228 Ga. App. 47, 491 S.E.2d 115 (1997); Adams v. State, 234 Ga. App. 696, 507 S.E.2d 538 (1998); Wimberly v. State, 235 Ga. App. 388, 508 S.E.2d 699 (1998); Bodiford v. State, 238 Ga. App. 531, 517 S.E.2d 356 (1999); Merchant v. Mitchell, 241 Ga. App. 173, 525 S.E.2d 710 (1999); Brown v. E.I. du Pont de Nemours & Co., 240 Ga. App. 893, 525 S.E.2d 731 (1999); Brasuell v. State, 243 Ga. App. 176, 531 S.E.2d 732 (2000); Cox v. State, 242 Ga. App. 334, 528 S.E.2d 871 (2000); NF Invs., Inc. v. Whitfield, 245 Ga. App. 72, 537 S.E.2d 207 (2000); Veasley v. State, 272 Ga. 837, 537 S.E.2d 42 (2000); Board of Comm'rs v. Guthrie, 273 Ga. 1, 537 S.E.2d 329 (2000); Johnson v. State, 246 Ga. App. 239, 539 S.E.2d 914 (2000); Coleman v. Grimes, 250 Ga. App. 880, 553 S.E.2d 185 (2001); Smith v. State, 257 Ga. App. 468, 571 S.E.2d 446 (2002); Gulledge v. State, 276 Ga. 740, 583 S.E.2d 862 (2003); Craig v. Holsey, 264 Ga. App. 344, 590 S.E.2d 742 (2003); Bailey v. McNealy, 277 Ga. App. 848, 627 S.E.2d 893 (2006); Green v. Benton, F. Supp. 2d (S.D. Ga. Mar. 13, 2006); Kappelmeier v. HSBC USA, Inc., 280 Ga. App. 349, 634 S.E.2d 133 (2006); Jackson v. Jackson, 282 Ga. 459, 651 S.E.2d 92 (2007); McRae v. SSI Dev., LLC, 283 Ga. 92, 656 S.E.2d 138 (2008); In re Estate of Boss, 293 Ga. App. 769, 668 S.E.2d 283 (2008); Liu v. Boyd, 294 Ga. App. 224, 668 S.E.2d 843 (2008); Barnaby v. Scott, 299 Ga. App. 691, 683 S.E.2d 333 (2009); Jackson v. State, 286 Ga. 407, 688 S.E.2d 351 (2010); Truelove v. Buckley, 318 Ga. App. 207, 733 S.E.2d 499 (2012); In the Interest of D. H., 332 Ga. App. 274, 772 S.E.2d 70 (2015); Okla. Gaming Ventures v. PCT Holdings, LLC, 340 Ga. App. 120, 796 S.E.2d 752 (2017); State v. Cash, 302 Ga. 587, 807 S.E.2d 405 (2017); Undisclosed LLC v. State, 302 Ga. 418, 807 S.E.2d 393 (2017); State v. Battle, 344 Ga. App. 565, 812 S.E.2d 1 (2018); Durham v. State, 345 Ga. App. 687, 814 S.E.2d 813 (2018); Abrams v. Laughlin, 304 Ga. 34, 816 S.E.2d 26 (2018).

Judgment cannot be considered appealable until actually entered.

- Court of Appeals lacked jurisdiction to consider enumerations of error arising from breach of contract claim, since the jury's verdict on the claim was never reduced to judgment because of the plaintiff's election to have judgment entered on the plaintiff's theory of fraud. Miner v. Harrison, 205 Ga. App. 523, 422 S.E.2d 899, cert. denied, 205 Ga. App. 900, 422 S.E.2d 899 (1992).

No requirement to appeal within 30 days when order appealed from not final judgment.

- Trial court erred in denying the children's petition for writ of mandamus to compel a judge to allow the children to appeal from the order dismissing the children's appeals because the judge's prior orders were not final judgments within the meaning of O.C.G.A. § 5-6-34(a)(1); thus, the children were not required to appeal from the rulings within 30 days after entry in order to preserve the children's right to pursue appellate review under O.C.G.A. § 5-6-38(a). Sotter v. Stephens, 291 Ga. 79, 727 S.E.2d 484 (2012).

Verdict is not an appealable decision or judgment within purview of section. Williams v. Keebler, 222 Ga. 437, 150 S.E.2d 674, answer conformed to, 114 Ga. App. 332, 151 S.E.2d 483 (1966).

Judgment, and not verdict, is the appealable decision. Herrington v. Herrington, 230 Ga. 94, 195 S.E.2d 654 (1973), overruled on other grounds, Gillen v. Bostick, 234 Ga. 308, 215 S.E.2d 676 (1975).

Judgment entered on consent verdict or guilty plea.

- Timely-filed direct appeal will lie from judgment entered on consent verdict or guilty plea. Neal v. State, 232 Ga. 96, 205 S.E.2d 284 (1974).

Defendant's appeals did not qualify as direct appeals from the entry of the defendant's guilty pleas because the defendants were from a ruling on a motion filed ten years after the entry of judgment and sentence and were filed pursuant to notices of appeal that referred to the denial of the motion to void judgment. Orr v. State, 276 Ga. 91, 575 S.E.2d 444 (2003).

Dismissal of motion for new trial is a final disposition and does not require the appellate court to dismiss an appeal of dismissal. Gold Kist, Inc. v. Stokes, 135 Ga. App. 382, 217 S.E.2d 352, rev'd on other grounds, 235 Ga. 643, 221 S.E.2d 49 (1975).

Dismissal or denial of a new trial due to failure to provide the transcript is, for purposes of subsection (a) of O.C.G.A. § 5-6-38, an order "finally disposing" of the motion, triggering the 30 days for filing of an appeal. Evans v. State, 230 Ga. App. 728, 497 S.E.2d 248 (1998).

Order sustaining motion to dismiss on merits and providing self-executing dismissal provision.

- Order sustaining general demurrer (now motion to dismiss) on merits and providing self-executing dismissal provision is a final order. If no notice of appeal is filed beforehand, case is not automatically dismissed until expiration of time allowed for amendments and an appeal within 30 days after such date is timely. Chambers v. Peacock Constr. Co., 115 Ga. App. 670, 155 S.E.2d 704, aff'd, 223 Ga. 515, 156 S.E.2d 348 (1967).

Oral order is not final nor appealable until and unless the order is reduced to writing, signed by the judge, and filed with the clerk. This constitutes "entry" and it is only an "entered" decision or judgment which is appealable. Sharp v. State, 183 Ga. App. 641, 360 S.E.2d 50 (1987).

Order affecting earlier final judgment.

- Trial court's corrective action in clarifying an omission as to post-trial interest in the court's earlier partial summary judgment, which had been certified as final, constituted a final order which was directly appealable. Nodvin v. West, 197 Ga. App. 92, 397 S.E.2d 581 (1990).

Judgment not final as to all parties.

- In the absence of an express determination and express direction pursuant to O.C.G.A. § 9-11-54(b), the denial of a motion for a new trial as to fewer than all the parties against whom a new trial has actually been sought is not itself a final judgment, does not otherwise terminate the action even as to those in whose favor judgment has previously been entered, and is subject to revision at any time prior to the entry of a judgment as to all parties. Accordingly, the denial of such a motion is not an order "otherwise finally disposing of the motion" so as to trigger the 30-day period established by subsection (a) of O.C.G.A. § 5-6-38 for the filing of a notice appeal, unless and until there has been compliance with O.C.G.A. § 9-11-54(b). Crumbley v. Wyant, 183 Ga. App. 802, 360 S.E.2d 276, cert. denied, 183 Ga. App. 905, 360 S.E.2d 276 (1987).

Although a trial court made no factual determination concerning the defendant's failure to pursue a direct appeal, a habeas court had previously determined that the defendant knowingly and voluntarily withdrew the new trial motion against the advice of counsel and waived the right to a direct appeal; as a result, the trial court properly denied the defendant's motion for an out-of-time appeal under O.C.G.A. § 5-6-38(a) and properly limited the record. Simmons v. State, 276 Ga. 525, 579 S.E.2d 735 (2003).

Dismissal of complaint against one of two defendants.

- Because an insured could not use a voluntary dismissal of one of the defendants as the vehicle for appellate review of rulings entered by the trial court more than 30 days from the filing of the notice of appeal, and no other final appealable ruling existed in the record, the insured's appeal was dismissed based on the appellate court's lack of jurisdiction. Waye v. Continental Special Risks, Inc., 289 Ga. App. 82, 656 S.E.2d 150 (2007), cert. denied, 2008 Ga. LEXIS 392 (Ga. 2008).

Direct appeals may be taken from contempt orders.

- Appellate court had jurisdiction to consider the prior orders specified in the notice of appeal because O.C.G.A. § 5-6-34(a)(2) expressly authorized a direct appeal from an order of contempt. Allison v. Wilson, 320 Ga. App. 629, 740 S.E.2d 355 (2013).

Pending motion when final judgment entered does not extend time for appeal.

- Hospital's motion to dismiss an appeal was granted because the order granting summary judgment was a final judgment since the order concluded the case and the fact that the ancillary issue of the cost award under O.C.G.A. § 9-11-4(d) remained pending did not prevent the judgment from being final for purposes of O.C.G.A. §§ 5-6-34(a)(1) and5-6-38(a); thus, the appeal was untimely since the appeal was brought outside of the 30-day time frame from the trial court's entry of judgment. Edokpolor v. Grady Mem. Hosp. Corp., 338 Ga. App. 704, 791 S.E.2d 589 (2016).

Trial court exceeded its authority.

- When a trial court effectively granted the defendant an 11-month extension of time under O.C.G.A. § 5-6-39(c) in which to file a notice of appeal, the appeal was dismissed because the trial court lacked authority under O.C.G.A. § 5-6-38(a) to do so. Cody v. State, 277 Ga. 553, 592 S.E.2d 419 (2004).

Timely filing of notice, delaying motion or grant of extension necessary.

- When 30-day period after entry of judgment on verdict expires and no notice of appeal has been filed, no extension of time therefor obtained, nor motion filed which would toll time for filing of notice of appeal, judgment, is unappealed from and becomes law of case. Venable v. Block, 141 Ga. App. 523, 233 S.E.2d 878 (1977).

When an application for discretionary review was not filed, and a subsequent notice of direct appeal was filed untimely, there was no jurisdiction conferred on the court to hear the appeal. Boney v. State, 236 Ga. App. 179, 510 S.E.2d 892 (1999).

For Court of Appeals to acquire jurisdiction over case, notice of appeal must be filed within 30 days of entry of judgment appealed from, unless an extension is granted upon proper application to the trial court, and motion for reconsideration of order granting summary judgment and dismissing counterclaim does not extend deadline for filing notice of appeal from that order. Peppers House Restaurant, Inc. v. Siefferman, 156 Ga. App. 114, 274 S.E.2d 43 (1980).

Proper, timely filing of notice of appeal is absolute requirement to confer appellate jurisdiction. Jordan v. Caldwell, 229 Ga. 343, 191 S.E.2d 530 (1972); Gillen v. Bostick, 234 Ga. 308, 215 S.E.2d 676 (1975); Camp v. Hamrick, 139 Ga. App. 61, 228 S.E.2d 288 (1976); May v. May, 139 Ga. App. 672, 229 S.E.2d 145 (1976); Patterson v. Professional Resources, Inc., 140 Ga. App. 315, 231 S.E.2d 88 (1976); Smith v. Forrester, 145 Ga. App. 281, 243 S.E.2d 575, cert. denied, 439 U.S. 863, 99 S. Ct. 185, 58 L. Ed. 2d 172 (1978); Hester v. State, 242 Ga. 173, 249 S.E.2d 547 (1978); Albert v. Bryan, 150 Ga. App. 649, 258 S.E.2d 300 (1979); Freeman v. State, 154 Ga. App. 344, 268 S.E.2d 727 (1980); Dunn v. State, 156 Ga. App. 483, 274 S.E.2d 828 (1980); Strauss v. Peachtree Assocs., 156 Ga. App. 536, 275 S.E.2d 90 (1980); Grant v. State, 157 Ga. App. 390, 278 S.E.2d 53 (1981); Long v. Long, 247 Ga. 624, 278 S.E.2d 370 (1981); Sands v. Lamar Properties, Inc., 159 Ga. App. 718, 285 S.E.2d 24 (1981); Hose v. State, 159 Ga. App. 842, 285 S.E.2d 588 (1981); Hunter v. Big Canoe Corp., 162 Ga. App. 629, 291 S.E.2d 726 (1982); Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695, 293 S.E.2d 352 (1982); Boothe v. State, 178 Ga. App. 22, 342 S.E.2d 9 (1986); Knox v. State, 180 Ga. App. 564, 349 S.E.2d 753 (1986); Banks v. Green, 205 Ga. App. 589, 423 S.E.2d 31 (1992), cert. denied, 205 Ga. App. 899, 423 S.E.2d 31, , 508 U.S. 941, 113 S. Ct. 2419, 124 L. Ed. 2d 642 (1993); Brown v. Webb, 224 Ga. App. 856, 482 S.E.2d 382 (1997).

When notice of appeal is given more than 30 days after entry of judgment, judgment is not reviewable and appeal must be dismissed. Buckhead Doctors' Bldg., Inc. v. Oxford Fin. Cos., 116 Ga. App. 503, 157 S.E.2d 767 (1967).

Unless jurisdiction of appellate court is invoked within 30-day period following filing of judgment in trial court by party to case, then appellate court is without jurisdiction to review judgment of trial court; and result is that judgment of trial court stands as rendered. Patterson v. Professional Resources, Inc., 140 Ga. App. 315, 231 S.E.2d 88 (1976).

Timely filing of a notice of appeal is essential to confer jurisdiction upon the appellate court. Bowen v. Clayton County Hosp. Auth., 160 Ga. App. 809, 288 S.E.2d 232 (1982); Mobley v. State, 162 Ga. App. 23, 288 S.E.2d 702 (1982); Raymond v. State, 162 Ga. App. 493, 292 S.E.2d 196 (1982).

Appellate court is without jurisdiction when the notice of appeal is not timely filed in accordance with the statutory requirements of O.C.G.A. § 5-6-38. McNeese v. State, 167 Ga. App. 770, 307 S.E.2d 303 (1983).

Court of Appeals is without jurisdiction whernthe notice of appeal is not timely filed in accordance with the statutory requirements. Westerfield v. State, 169 Ga. App. 510, 313 S.E.2d 768 (1984).

Although an order denying a motion to set aside summary judgment orders is an appealable judgment, notice of appeal filed a minimum of 33 days after the filing of the order denying the motion to vacate and set aside is untimely and confers no jurisdiction upon the Court of Appeals. Quarterman v. Quarterman, 170 Ga. App. 376, 317 S.E.2d 206 (1983).

When notice of appeal was filed approximately two and one-half months after the entry of the orders granting motions for summary judgments and when no motions for new trial, in arrest of judgment, or judgment n.o.v. were filed, the Court of Appeals had no jurisdiction to consider those orders. Quarterman v. Quarterman, 170 Ga. App. 376, 317 S.E.2d 206 (1983).

When, in a dispossessory action, a trial court dismissed a tenant's counterclaim and designated the dismissal as a final judgment under O.C.G.A. § 9-11-54(b), the tenant had to appeal any adverse rulings in that order within 30 days of the entry of judgment, under O.C.G.A. § 5-6-38, and, by failing to so appeal that judgment, the tenant's right to review of those rulings was lost. Lewis v. Carscallen, 274 Ga. App. 711, 618 S.E.2d 618 (2005).

Although counsel did not know order sought to be appealed had been filed the rule still applies. Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978).

Untimeliness sought to be attributed to clerk or court.

- This rule obtains even when untimeliness is sought to be attributed to the clerk's docket sheet, to misstatements of the clerk of court, or, to the court. Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978).

Prerequisite to Supreme Court jurisdiction over appeal.

- Unless notice of appeal is timely filed in accordance with section, Supreme Court does not have jurisdiction to review original adverse judgment on appeal. Neal v. State, 232 Ga. 96, 205 S.E.2d 284 (1974).

Filing of notice of appeal within statutory period or securing of extension during such period is absolutely essential, to enable the Supreme Court to consider the case on the merits. Kennedy v. Brown, 239 Ga. 286, 236 S.E.2d 632 (1977).

Appeal or notice of appeal filed anywhere other than where law directs. No other court has jurisdiction to accept or file the appeal, and filing or attempted filing of the appeal in some other court does not and cannot toll the statutory time for filing. Bailey v. Bonaparte, 125 Ga. App. 512, 188 S.E.2d 119 (1972).

Immaterial amendment will not confer jurisdiction when earlier appeal dismissed for noncompliance.

- When notice of appeal is not filed according to mandate of section, if appellate court dismisses appeal for this reason, an amendment which is not a material one will not give jurisdiction to entertain or rule on new motion to dismiss. City Stores Co. v. Henderson, 116 Ga. App. 114, 156 S.E.2d 818 (1967).

Appellate court without jurisdiction.

- Unless the jurisdiction of the appellate court is invoked within the 30-day period following the filing of the judgment in the trial court by a party to the case, then the appellate court is without jurisdiction to review the judgment of the trial court; and the result is that the judgment of the trial court stands as rendered. Jarrard v. Copeland, 205 Ga. App. 20, 421 S.E.2d 84 (1992).

Because a judgment awarding a property owner damages was final, the residents' attempt to appeal that judgment two years later was untimely, and the Court of Appeals lacked jurisdiction to consider the residents' arguments; although the residents asserted error in other rulings by the trial court, those orders apparently were entered after the residents filed the residents' notice of appeal in the case, and the Court of Appeals could not consider the errors. Paine v. Nations, 301 Ga. App. 97, 686 S.E.2d 876 (2009).

Supreme court was without jurisdiction to review the propriety or substance of the trial court's order denying the property owners' motion for new trial because the owners failed to timely file a notice of appeal in regard to that order, and the builders' post-judgment motions for fees under O.C.G.A. §§ 9-11-68 and9-15-14 did not toll the time for the owners' to appeal from the order denying the owners' motion for new trial; the trial court entered a final judgment on October 4, 2007, and the owners' filing of a motion for new trial tolled the time for appeal under O.C.G.A. § 5-6-38(a), but as soon as the trial court issued the court's order disposing of the motion for new trial, the thirty-day time period to file a notice of appeal began to run, and the owners' filed the motion for new trial on March 9, 2009. O'Leary v. Whitehall Constr., 288 Ga. 790, 708 S.E.2d 353 (2011).

Because the defendant did not file either a cross-appeal to the state's appeal or a separate notice of appeal regarding the superior court's adverse rulings on the other alleged violations of the statute regarding the presiding judge's allegedly improper questioning of the defendant, the appellate court lacked jurisdiction to consider the defendant's allegations of error arising from the superior court's adverse rulings. State v. Nickerson, 324 Ga. App. 576, 749 S.E.2d 768 (2013).

Appellate court lacks jurisdiction to perfect untimely notice of appeal.

- If notice of appeal is not filed within 30 days from judgment, ruling, or order entitling the appellant to take appeal, the Court of Appeals has no jurisdiction from outset and can do nothing to perfect the litigant's attempt to confer jurisdiction by amendment to notice of appeal. Hardnett v. United States Fid. & Guar. Co., 116 Ga. App. 732, 158 S.E.2d 303 (1967).

It is not necessary that judgment be attacked by a method provided in Ga. L. 1967, p. 226, §§ 26, 27, 30 (see O.C.G.A. § 9-11-60), as any final judgment may be timely appealed. Hiscock v. Hiscock, 227 Ga. 329, 180 S.E.2d 730 (1971).

Motion for reconsideration of new trial denial.

- Supreme Court did not lack jurisdiction over a case because the defendant had pending in the trial court a motion for reconsideration of the denial of his motion for new trial. When the trial court denied the motion for new trial, the case became ripe for appeal. Holiday v. State, 258 Ga. 393, 369 S.E.2d 241, cert. denied, 488 U.S. 934, 109 S. Ct. 329, 102 L. Ed. 2d 346 (1988).

Clarification for cross-appeals.

- Appellate court erred by dismissing the cross-appeals of the defendants because a cross-appeal that is filed in a timely and otherwise procedurally proper manner need not be factually related to the issues raised in the main appeal; rather, as O.C.G.A. § 5-6-38(a) states, the cross-appeal may involve all errors or rulings adversely affecting the appellees. Sewell v. Cancel, 295 Ga. 235, 759 S.E.2d 485 (2014).

Georgia Supreme Court clarifies that a cross-appeal that is filed in a timely and otherwise procedurally proper manner need not be factually related to the issues raised in the main appeal; rather, the cross-appeal may involve all errors or rulings adversely affecting the appellee and, to the extent Fulton v. Pilon, 199 Ga. App. 861, 406 S.E.2d 517 (1991), and other cases have required otherwise, those cases are overruled. Sewell v. Cancel, 295 Ga. 235, 759 S.E.2d 485 (2014).

When appellee failed to file cross-appeal.

- When a case on appeal in which the appellee filed a motion to remand the case, after a decision on the merits has been reached, and when the appellee wanted to remand the case for a hearing on the appellant's motion to proceed in forma pauperis and contending that the motion was filed and ruled upon without the appellee having had an opportunity to respond in opposition, the matter was not properly before the appellate court since the appellee had not filed a cross-appeal as required by O.C.G.A. § 5-6-38. Selfridge v. Morrison Cafeteria Co., 192 Ga. App. 469, 385 S.E.2d 137, cert. denied, 192 Ga. App. 903, 385 S.E.2d 137 (1989).

Notice of cross-appeal properly filed.

- In a tenant's action against the leasing agent of an apartment complex alleging that soot from an apartment heating system caused the tenant to suffer respiratory and lymph node problems, the agent's jurisdictional challenge to the tenant's cross-appeal from a trial court ruling that granted the agent's motion for a directed verdict on the tenant's claim for punitive damages was unsuccessful; within 15 days of being served with the tenant's notice of appeal, the tenant filed a notice of cross-appeal stating that the tenant was appealing from the grant of a directed verdict in favor of the agent on the punitive damages issue, and that was the tenant's sole claim of error on the cross-appeal. Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 640 S.E.2d 620 (2006).

Burden is on party desiring to take appeal.

- Burden is on party desiring to take appeal to determine when judgment is filed in trial court, and to file the party's notice of appeal within the 30-day period or within the duly authorized extension of the 30-day period. Jordan v. Caldwell, 229 Ga. 343, 191 S.E.2d 530 (1972); Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978).

Burden is upon party taking appeal to file within required 30 day period. Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695, 293 S.E.2d 352 (1982).

Burden is not satisfied by relying on postal delivery but may be satisfied only by depositing notice of appeal with clerk within appropriate time frame. Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695, 293 S.E.2d 352 (1982).

Burden is on appellant to ascertain whether clerk's office is open for filing of notice of appeal on specific date. Camp v. Hamrick, 139 Ga. App. 61, 228 S.E.2d 288 (1976); Blumenau v. Citizens & S. Nat'l Bank, 139 Ga. App. 188, 228 S.E.2d 302 (1976).

Judgment cannot be considered appealable until judgment is actually entered; therefore, when a notice of appeal is filed before entry of judgment, the appeal must be dismissed. Cunningham v. State, 131 Ga. App. 133, 205 S.E.2d 899, rev'd on other grounds, 232 Ga. 416, 207 S.E.2d 48 (1974).

Filing of notice of appeal constitutes entry of appeal.

- Although notice of appeal is dated prior to entry of judgment intended to be appealed from, it is filing of notice of appeal which constitutes entering an appeal. Anthony v. Anthony, 120 Ga. App. 261, 170 S.E.2d 273 (1969).

Second notice of appeal was a nullity when the defendant had already filed a notice of appeal and the initial appeal was pending. Elrod v. State, 222 Ga. App. 704, 475 S.E.2d 710 (1996).

What constitutes filing within meaning of section.

- Bailey v. Bonaparte, 125 Ga. App. 512, 188 S.E.2d 119 (1972).

Best evidence of filing.

- Certificate of clerk, entered upon paper when it is filed, is best evidence of filing as required by section. Bailey v. Bonaparte, 125 Ga. App. 512, 188 S.E.2d 119 (1972).

Proof that notice was in clerk's office within time prescribed.

- When a notice of appeal is alleged to have been in the clerk's office in time but not filed by that functionary within 30-day period, such proof does not furnish satisfactory compliance with the statutory requirement of filing. Bank of Coweta v. Lee, 153 Ga. App. 33, 264 S.E.2d 526 (1980).

Section 9-11-6(b) is inapplicable to time for filing.

- Ga. L. 1967, p. 226, §§ 5, 6 (see O.C.G.A. § 9-11-6(b) does not apply to periods of time which are definitely fixed by statute, as time for filing of notice of appeal, as provided by Ga. L. 1968, p. 1072, § 7. Buckhead Doctors' Bldg., Inc. v. Oxford Fin. Cos., 116 Ga. App. 503, 157 S.E.2d 767 (1967).

Day of entry of decision.

- When trial court's denial of the appellant's motion for judgment notwithstanding the verdict was filed the same day the appellant filed the appellant's notice of appeal, an appeal was timely. Bank of Tenn. v. Rochester, 165 Ga. App. 1, 299 S.E.2d 109 (1983).

Notice timely if filed within 30 days of entry of order.

- So long as the notice of appeal is filed within 30 days following the entry of the order granting, overruling, or otherwise finally disposing of the motion for new trial, the appeal is timely. Phelps v. State, 158 Ga. App. 219, 279 S.E.2d 513 (1981).

Notice of appeal of order denying motions for directed verdict and judgment notwithstanding the verdict was timely.

- Commercial vehicle liability insurer's notice of appeal of an order denying the insurer's motion for directed verdict and judgment notwithstanding the verdict was timely under O.C.G.A. §§ 5-6-38 and9-11-50(b) because the notice of appeal was filed within 30 days of the trial court's order on the insurer's motion for judgment notwithstanding the verdict, which the insurer filed within 30 days of the entry of the judgment. Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 707 S.E.2d 885 (2011), cert. denied, No. S11C1110, 2011 Ga. LEXIS 580 (Ga. 2011).

When application unnecessarily filed pursuant to § 5-6-35. - When the custodial parent in a child custody habeas corpus proceeding unnecessarily files an application for appeal in accordance with O.C.G.A. § 5-6-35, and the Supreme Court grants the application, and a notice of appeal then is timely filed, the Supreme Court has jurisdiction of the appeal even though no notice of appeal was filed in accordance with O.C.G.A. § 5-6-38 within 30 days from entry of judgment in the trial court. Wright v. Hanson, 248 Ga. 523, 283 S.E.2d 882 (1981).

Obvious error in notice of appeal.

- As it was clear that the appellant was appealing the entry of judgment in favor of the appellee, the notice of appeal was deemed filed within 30 days of the entry of judgment, despite the fact that the notice erroneously stated that it was from the prior directed verdict. Horton v. Allstate Ins. Co., 171 Ga. App. 707, 320 S.E.2d 761 (1984), overruled on other grounds, Carter v. Banks, 254 Ga. 550, 330 S.E.2d 866 (1985).

Improper dismissal of an appeal from an order granting a motion for directed verdict occurred when, even though the notice of appeal was technically defective, final judgment had been rendered in the case and the notice of appeal was sufficient to notify the opposing party that an appeal was being taken. Steele v. Cincinnati Ins. Co., 252 Ga. 58, 311 S.E.2d 470 (1984).

Double extensions a nullity.

- Since neither the trial court nor the Court of Appeals has jurisdiction to grant more than one extension, or any extension of more than 30 days for the filing of a notice of appeal, the trial court's two extensions purporting to extend the filing time for more than 30 days were a nullity. Gibson v. State, 207 Ga. App. 491, 428 S.E.2d 421 (1993).

Pro se filings.

- Because all but three of a pro se defendant's notices of appeal were untimely, under O.C.G.A. § 5-6-38(a), the appellate court declined to consider the appeal. Owens v. State, 258 Ga. App. 647, 575 S.E.2d 14 (2002).

Defendant was not responsible for the defendant's failure to timely appeal since the trial court failed to advise the defendant of the defendant's right to counsel for purposes of filing a motion to withdraw the defendant's guilty plea or that the defendant could appeal the denial of the defendant's motion directly. Murray v. State, 265 Ga. App. 119, 592 S.E.2d 898 (2004).

Mother's challenge to deprivation order.

- Because a mother's challenge to the unappealed February 11, 2004 deprivation order was brought on April 29, 2004, as part of a timely appeal from the April 21, 2004 disposition order entered in the same deprivation proceeding; motions filed by the Department of Children and Family Services requesting that the mother's appeals be dismissed were denied. In the Interest of S.P., 282 Ga. App. 82, 637 S.E.2d 802 (2006).

Transcript production appeal was untimely.

- Defendant's appeal of the denial of the defendant's post-conviction motion requesting production of a trial transcript at government expense was dismissed as untimely. Coles v. State, 223 Ga. App. 491, 477 S.E.2d 897 (1996).

Time of appeal in mandamus action.

- Because a prisoner's early petition for judicial review of the denial of parole was treated as a petition for a writ of mandamus, and using the starting date from the second denial of parole, the prisoner's habeas petition was timely filed under 28 U.S.C. § 2244(d) in that the petition was filed within ten days of the denial of mandamus under O.C.G.A. § 5-6-38 and within the one year period. Day v. Hall, 528 F.3d 1315 (11th Cir. 2008).

Filing of judgment, not its entry on docket starts running.

- It is filing of judgment, signed by the judge, with clerk which starts running of applicable 30-day limit and not clerk's subsequent entry on docket. Lewis & Sheron Enterprises, Inc. v. Great A & P Tea Co., 136 Ga. App. 910, 222 S.E.2d 659 (1975).

Judgment must be signed and filed for notice of appeal time to begin running.

- O.C.G.A. § 5-6-31 plainly provides that the filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of the Appellate Practice Act, and as a result the 30-day limit under O.C.G.A. § 5-6-38(a) for filing a notice of appeal does not begin to run until a judgment, signed by the judge, is filed with the clerk; to the extent that Ross v. State, 259 Ga. App. 246 (2003) holds otherwise, it is hereby overruled. Rocha v. State, 287 Ga. App. 446, 651 S.E.2d 781 (2007).

Notice to party of entry of judgment is not prerequisite to commencement of 30-day period during which appeal must be filed. Alexander v. Blackmon, 129 Ga. App. 214, 199 S.E.2d 376 (1973).

Effect of notice of entry.

- Counsel are not entitled to notice of entry of judgment to start 30-day period running. Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978).

When judgment is set aside and reentered.

- When no notice of entry of judgment was sent by the trial court or by the clerk to the losing party, as required by Code 1933, §§ 24-2620, 24-2621 (see O.C.G.A. § 15-6-21), action may be brought under Ga. L. 1974, p. 1138, § 1 (see O.C.G.A. § 9-11-60(g)) to set aside earlier judgment; upon granting of such motion to set aside and reentry of judgment, 30-day period within which losing party must appeal will begin to run from date of reentry. Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980), overruled on other grounds, Wright v. Young, 297 Ga. 683, 777 S.E.2d 475 (2015); Fremichael v. Doe, 221 Ga. App. 698, 472 S.E.2d 440 (1996).

When 30th day falls on Saturday.

- When 30th day from entering of judgment fell on Saturday, under former Code 1933, § 102-102 (see O.C.G.A. § 1-3-1(d)(3)), notice of appeal could be filed on the following Monday. Thomas v. Allstate Ins. Co., 133 Ga. App. 193, 210 S.E.2d 361 (1974), rev'd on other grounds, Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978).

When a defendant voluntarily abandons the defendant's motion for a new trial and, therefore, no order was entered granting, overruling, or otherwise finally disposing of the motion, notice of appeal must still be filed within 30 days after entry of an appealable judgment. Taylor v. State, 173 Ga. App. 745, 327 S.E.2d 860 (1985).

Unconditional withdrawal of the new trial motion, by filing of a written order of the court, starts anew the running of the statutory 30-day period of subsection (a) of O.C.G.A. § 5-6-38 in which the appellant can timely file a notice of appeal. Ailion v. Wade, 190 Ga. App. 151, 378 S.E.2d 507 (1989).

Deadline not extended by motion to vacate summary judgment.

- Party's motion to vacate a grant of summary judgment for the opposing party did nothing to extend the deadline for filing a notice of appeal from the order granting the summary judgment. Thompson v. GMAC, 194 Ga. App. 526, 391 S.E.2d 2 (1990).

Nunc pro tunc entry.

- Under O.C.G.A. §§ 5-6-31 and5-6-38(a), the 30-day time period for filing a notice of appeal did not begin to run until a judgment, signed by the judge, was filed with the clerk; thus, a defendant's appeal was timely, as the 30 days did not begin to run on the nunc pro tunc date, but on the date the signed judgment was filed. Rocha v. State, 287 Ga. App. 446, 651 S.E.2d 781 (2007).

While a nunc pro tunc entry does not extend the statutory period for filing a notice of appeal, case law does not stand for the proposition that a nunc pro tunc entry can shorten the statutory period for filing a notice of appeal provided in O.C.G.A. § 5-6-38(a), which begins to run when judgment is entered in accordance with O.C.G.A. § 5-6-31. Rocha v. State, 287 Ga. App. 446, 651 S.E.2d 781 (2007).

Pro se appellant did not have time extension.

- Court could not put patient, acting pro se, on a different standard from that of the physician represented by counsel, and when the patient submitted a letter to the court, and erroneously thought the patient had been given an extension of time to file a notice of appeal (as opposed to the hearing transcript), the court properly dismissed the patient's appeal, filed well after the 30 day deadline, as untimely. Campbell v. McLarnon, 265 Ga. App. 87, 593 S.E.2d 21 (2003).

Time bar in creditor's fraudulent transfer action.

- In a creditor's fraudulent transfer action, the trial court had authority to enter dismissal orders after the creditor had filed a notice of appeal because the creditor failed to obtain a certificate of immediate review as required for interlocutory review in O.C.G.A. § 5-6-34(b), but later orders setting the dismissals aside were void as outside the term of court in which the orders had been entered. The creditor's appeal from the earlier orders was time barred under O.C.G.A. § 5-6-38(a). Brock v. RES-GA SCL, LLC, 340 Ga. App. 194, 796 S.E.2d 914 (2017).

Forfeiture order.

- In a civil forfeiture proceeding, the state's motion to dismiss a claimant's appeal was denied since the claimant's notice of appeal was timely filed within 30 days following the entry of the order of distribution. Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361 (2009), cert. denied, No. S10C0024, 2010 Ga. LEXIS 128 (Ga. 2010).

Appeal filed while motion for new trial or for judgment n.o.v. remain pending.

- Notice of appeal is prematurely filed when motion for new trial or motion for judgment n.o.v. or both motions remain undisposed of by trial court and appeal must be dismissed; this is true even when both motions are filed pursuant to Ga. L. 1967, p. 226, §§ 22, 43, 48 (see O.C.G.A. § 9-11-50(b)) and one is denied and the other remains pending. Pirkle v. Triplett, 153 Ga. App. 524, 265 S.E.2d 854 (1980).

Appeal filed while motion for directed verdict or JNOV remained pending.

- For purposes of the hospital's cross-appeal, because the trial court had not entered an order addressing and ruling upon the remaining grounds raised in the hospital's motion for a directed verdict or the hospital's motion for a judgment notwithstanding the verdict, it was improper for the appellate court to address those issues on appeal. Dempsey v. Gwinnett Hosp. Sys., 330 Ga. App. 469, 765 S.E.2d 525 (2014).

Effect of denial of new trial motion.

- Disposition of the motion for new trial obviated all need for an out-of-time appeal, since the defendant had 30 days after entry of that judgment in which to file an ordinary appeal. Nevertheless, while the denial of the new trial motion was the demise of the notice of appeal, filed earlier, as an out-of-time appeal, it served to vitalize it as a timely appeal. As a premature notice of appeal it became effective upon entry of a final judgment. Shirley v. State, 188 Ga. App. 357, 373 S.E.2d 257 (1988).

Service of notice by mail prior to filing of original.

- It is no ground for dismissal of appeal that service of notice of appeal was made by mail three days before original was filed, or that order was in first instance erroneously dated. Fidelity & Cas. Co. v. Whitehead, 117 Ga. App. 200, 160 S.E.2d 241 (1968).

Premature notice of appeal when no prejudice will result.

- If notice of appeal is sufficient to advise opposing party that appeal is being taken from specific judgment, and if no prejudice will result to appellee in allowing appeal, then an appeal should not be dismissed merely because the notice is premature. Kenerly v. Yancey, 144 Ga. App. 295, 241 S.E.2d 28 (1977).

When premature notice of appeal not dismissed, subsequent notice will be dismissed.

- When premature notice of appeal, which was filed before judgment was entered, was not subject to dismissal, subsequently filed notice of appeal was dismissed as redundant. Elwell v. Nesmith, 246 Ga. 430, 271 S.E.2d 827 (1980).

Withdrawal of initial notice of appeal until disposition of codefendant's new-trial motion.

- Defendant did not act improperly when the defendant withdrew the defendant's initial notice of appeal and did not file another until after the disposition of the codefendant tortfeasor's motion for new trial; defendant's notice of appeal, filed within 30 days of the denial of her codefendant's motion for new trial, was therefore timely. Denson v. Kloack, 177 Ga. App. 483, 339 S.E.2d 761 (1986).

Notice filed 31 days after rendition of judgment is too late.

- When judgment appealed from is final, notice of appeal filed 31 days after rendition of judgment is too late and the Court of Appeals is without jurisdiction to entertain appeal. Hull v. Campbell, 130 Ga. App. 637, 204 S.E.2d 312 (1974).

When notice of appeal was filed only one day late, court was powerless to deny motion to dismiss filed by appellee. Associated Bldrs. Supply v. Georgia-Pacific Corp., 123 Ga. App. 222, 180 S.E.2d 273 (1971).

When an order was entered on January 13 and a notice of appeal was filed on February 13, the notice of appeal was not timely as there was no proper extension of time. Patel v. Georgia Power Co., 234 Ga. App. 141, 505 S.E.2d 787 (1998).

Notice of appeal filed after expiration of 30-day filing requirement.

- When the defendant's notice of appeal (from an order entered in the county superior court on October 12, 1988) although dated November 9, 1988, was not filed with the clerk of the county superior court until November 21, the appeal is therefore untimely and must be dismissed. Howard v. Wilkes, 191 Ga. App. 239, 382 S.E.2d 434 (1989).

Notice of appeal filed within 30 days of the filing of an order allowing an out-of-time appeal is timely. Davis v. State, 192 Ga. App. 47, 383 S.E.2d 615 (1989).

Notice not amendable in appellate court nor in trial court after expiration of time for filing.

- Notice is not amendable in Court of Appeals nor is the notice amendable in the trial court after expiration of the time for filing prescribed by section. Teppenpaw v. Blalock, 121 Ga. App. 320, 173 S.E.2d 442, aff'd, 226 Ga. 619, 176 S.E.2d 711 (1970).

Application for extension must be within 30-day period.

- Trial court has no jurisdiction to grant extension of time for filing notice of appeal when application for an extension is not made before expiration of 30-day period prescribed by section. Morris v. State, 115 Ga. App. 715, 155 S.E.2d 735 (1967).

Out of time appeal rejected.

- Trial court order rejecting the defendant's amended motion for an out of time appeal was affirmed because the defendant's attempt to amend the already adjudicated motion for an out-of-time appeal was untimely and jurisdictionally improper before the trial court. Moore v. State, 303 Ga. 743, 814 S.E.2d 676 (2018).

Effect of vacating order denying motion for new trial.

- Although the case became ripe for appeal when the trial court denied the motion for new trial, an appeal was timely when the trial court vacated the court's order denying the motion for new trial. Animashaun v. State, 216 Ga. App. 104, 453 S.E.2d 126 (1995).

Vacating judgment and entering new one to give appellant additional time.

- After appeal is dismissed for untimely filing of notice of appeal, although allegedly caused by repeated misstatements of clerk, the trial court may not vacate the court's original judgment and enter a new one in order to give the appellant an opportunity to enter a fresh appeal. Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978).

Effect of voluntary dismissal after 30-day period.

- Trial court cannot reinstate notice of appeal after plaintiffs have voluntarily dismissed appeal after 30-day period during which appeal is allowed by this section. Albert v. Bryan, 150 Ga. App. 649, 258 S.E.2d 300 (1979).

Grant of out-of-time appeals in criminal cases.

- Out-of-time appeals are granted when the defendant in a criminal case is not advised of the right of appeal or defense counsel fails to appeal. Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276 (1980), cert. denied, 449 U.S. 855, 101 S. Ct. 150, 66 L. Ed. 2d 68 (1980).

State of Georgia recognizes the right to effective assistance of counsel at trial and on first appeal as of right and has provided for ameliorative relief in the form of an out-of-time appeal. An appellant who is denied effective assistance of counsel in attempting to appeal the appellant's conviction shall be allowed, if the appellant so desires, to file an out of time appeal to the proper appellate court. Brantley v. State, 190 Ga. App. 642, 379 S.E.2d 627 (1989).

When dismissal of a represented criminal defendant's appeal was appropriate and constitutionally permissible, because it was not timely filed by counsel, the defendant would be entitled to make application for an out-of-time appeal. Rowland v. State, 264 Ga. 872, 452 S.E.2d 756 (1995).

Defendant's motion for an out of time appeal was the functional equivalent of a timely notice of appeal and was treated as such when the document: (1) was filed within the 30-day time limit of O.C.G.A. § 5-6-38 for filing a notice of appeal since the notice was filed within 30 days of the filing date of the order which denied the defendant's motion for a new trial; (2) was served upon the state; and (3) undeniably evinced the defendant's intention to seek appellate review of the denial of the motion for a new trial and gave notice to the state of that intent. Cain v. State, 275 Ga. 784, 573 S.E.2d 46 (2002).

Out-of-time appeal is occasionally appropriate when, due to ineffective assistance of counsel, no appeal has been taken. But an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Smith v. State, 268 Ga. App. 748, 602 S.E.2d 839 (2004).

While the Court of Appeals of Georgia initially stated that the defendant's appeal was subject to dismissal based on a failure to timely file a notice of appeal from the trial court's order denying an out-of-time motion for a new trial and for other relief, as required by O.C.G.A. § 5-6-38, the Appeals Court proceeded to address the defendant's claims in the interest of finality and to avert a claim of ineffective assistance of counsel because the court granted the defendant's application for a discretionary appeal. Segura v. State, 280 Ga. App. 685, 634 S.E.2d 858 (2006).

Defendant's reliance upon O.C.G.A. § 17-10-1(f) and a claim of ineffective assistance of counsel were unavailing as a basis for an out-of-time appeal under O.C.G.A. § 5-6-38(a) because the defendant failed to show entitlement to a hearing on the defendant's motion for reconsideration, and no order correcting, reducing, or modifying any sentence imposed upon the defendant had been entered. LaBrew v. State, 315 Ga. App. 865, 729 S.E.2d 33 (2012).

Motion to review or reconsider filed after 30 days.

- When the appellant does not file a motion to review or reconsider until well after the 30 days allowed for notice of appeal, the appeal is not properly and timely filed so as to invoke the jurisdiction of the appellate court, and the appeal must be dismissed. Stonecypher v. State, 168 Ga. App. 507, 308 S.E.2d 639 (1983).

Dismissal for late filing.

- Defendant's pro se motion appealing the denial of the defendant's motion for an out-of-time appeal and/or extraordinary motion for new trial was properly dismissed for untimeliness when the defendant waited until three months after the defendant's conviction to appeal, the defendant's appeal was not properly designated, and failed to enumerate any error relating to the trial. Davis v. State, 233 Ga. App. 825, 505 S.E.2d 801 (1998).

Judgment complained of by parents was a trial court's finding that the parents' children were deprived pursuant to O.C.G.A. § 15-11-2(8)(A), and not a later order ruling that the case was closed; the parents' notice of appeal filed more than three months after the order finding deprivation was untimely, and the appeal was dismissed. In the Interest of I.S., 265 Ga. App. 759, 595 S.E.2d 528 (2004).

Because a lessee's notice of appeal was filed nearly a year after a superior court's order was entered, it was untimely and thus dismissed. Masters v. Clark, 269 Ga. App. 537, 604 S.E.2d 556 (2004), appeal dismissed, Clark v. Masters, 297 Ga. App. 794, 678 S.E.2d 538 (2009).

Because a litigant's appeal was untimely filed, despite evidence of mistaken delivery beyond the litigant's control, the superior court properly held that the court lacked discretion to find otherwise; thus, the court did not err in dismissing the appeal. Register v. Elliott, 285 Ga. App. 741, 647 S.E.2d 406 (2007).

Motion to dismiss an appeal on grounds that the appealing party failed to timely appeal an order granting summary judgment pursuant to O.C.G.A. § 5-6-38(a) was granted; moreover, the appeal was not taken from the final judgment entered in the case. Patterson v. Bristol Timber Co., 286 Ga. App. 423, 649 S.E.2d 795 (2007).

In a breach of contract action, a corporation's appeal of a default judgment entered against the corporation was dismissed as untimely as the notice of appeal was to have been filed within 30 days of the entry of the default judgment, but the corporation did not file an appeal until seven months later. GMC Group, Inc. v. Harsco Corp., 293 Ga. App. 707, 667 S.E.2d 916 (2008).

Defendant's motion for new trial filed more than 30 days after the entry of judgment was untimely under O.C.G.A. § 5-5-40(a), void, and did not toll the 30-day time to file a notice of appeal provided by O.C.G.A. § 5-6-38(a). Because the defendant failed to show good cause for the untimely motion, it could not be construed as an extraordinary motion under O.C.G.A. § 5-5-41(b), and even if it were so construed, the defendant did not follow the discretionary appeal procedure of O.C.G.A. § 5-6-35. Davis v. State, 330 Ga. App. 711, 769 S.E.2d 133 (2015).

Time for filing expired.

- It was not an abuse of discretion to deny the defendant's motion for a new trial, requested to facilitate the defendant's efforts to become a naturalized citizen, because the trial court considered that the defendant's sentence for giving a false name to an officer had long since been served, that six years had passed since sentencing, and that the sentence was within the statutory guidelines for misdemeanors; claims the defendant's guilty plea was not voluntary were of no avail as the defendant failed to move to withdraw the plea or to appeal and the times for doing so had expired. Elias v. State, 272 Ga. App. 506, 613 S.E.2d 157 (2005).

Failure of state to file cross-appeal.

- When an inmate appealed a habeas court's original order granting the inmate a new appeal in the inmate's criminal case, and the state failed to file a cross-appeal from that original order, the state was not allowed to pursue an appeal of the habeas court's later order on remand granting the inmate a new trial; the merits of the issue were reached and resolved in the habeas court's earlier final order, and the state's attempt to challenge those merits in the instant appeal was untimely. Stewart v. Milliken, 277 Ga. 659, 593 S.E.2d 344 (2004).

Ineffective assistance of counsel.

- Out-of-time appeal was appropriate when, as the result of ineffective assistance of counsel, a timely direct appeal was not taken, and the movant for an out-of-time appeal needed to establish a good and sufficient reason entitling the movant to such an appeal; the defendant's motion for an out-of-time appeal was properly denied when the defendant claimed that the defendant's trial counsel did not provide the defendant with a copy of the plea hearing transcript, but also stated that the defendant first tried to obtain a copy of the transcript nearly eight months after the defendant's guilty plea and conviction, well after the time for a direct appeal had passed. Pearson v. State, 265 Ga. App. 574, 594 S.E.2d 769 (2004).

Motion for out-of-time appeal denied.

- Denial of the defendant's motion for an out-of-time appeal from the defendant's conviction and sentence after the entry of a guilty plea was not an abuse of discretion. Defendant's claims that the defendant received ineffective assistance of counsel did not show that defense counsel's conduct frustrated the defendant's right to appeal, the defendant did not have an unqualified right to appeal after the entry of a guilty plea, defendant failed to show how the trial court deviated from the negotiated plea as the record showed that the sentence matched the recommendation, and the defendant was not entitled to expand the record in an attempt to meet the defendant's burden for an out-of-time appeal. Jackson v. State, 266 Ga. App. 461, 597 S.E.2d 535 (2004).

Trial court properly denied a defendant's motion for an out-of-time direct appeal after the defendant plead guilty. The defendant had not shown that the issues raised could be decided upon facts appearing in the record and did not contend that ineffectiveness of counsel frustrated the defendant's right to file a timely direct appeal; rather, the defendant asserted that counsel failed to investigate, failed to object to the sufficiency of the accusation, failed to personally negotiate the plea agreement, and failed to file a material document. Smith v. State, 291 Ga. App. 459, 662 S.E.2d 253 (2008).

Defendant's pro se motion for an out-of-time direct appeal was properly denied because the defendant's claims were meritless. A plea petition and a transcript showed that the defendant's guilty plea was knowing, intelligent, and voluntary, and by not objecting to the failure to be placed under oath at the guilty plea hearing, the defendant waived the requirement of an oath. Sweeting v. State, 291 Ga. App. 693, 662 S.E.2d 785 (2008).

Trial court properly denied a defendant's motion for an out-of-time appeal. Based on a plea acknowledgment form, counsel's certification, and the plea colloquy, there was no merit to the defendant's claims that the defendant had not been informed of the nature of the charges and that the trial court failed to establish a factual basis for the defendant's guilty plea. Colbert v. State, 284 Ga. 81, 663 S.E.2d 158 (2008).

Trial court properly denied a defendant's motion for an out-of-time appeal. The defendant clearly stated the defendant's desire to discontinue the services of trial counsel and accept punishment; in addition, although counsel informed the defendant of the appeal deadline after giving the defendant notice of counsel's intent to withdraw, the defendant waited 18 years before seeking an out-of-time appeal. Duncan v. State, 297 Ga. App. 499, 677 S.E.2d 691 (2009).

Defendant failed to show an abuse of discretion in the trial court's denial of the defendant's motion for an out-of-time appeal because the defendant failed to demonstrate in the current appeal that the defendant's direct appeal of right of the defendant's convictions and sentences was lost due to the professional deficiency of any attorney as the record showed that the defendant's attempted pro se direct appeal was properly dismissed as untimely. Waller v. State, 299 Ga. 619, 791 S.E.2d 67 (2016).

Notice of appeal filed within 30 days of order of distribution of damages, which is incidental to and does not affect the validity of the prior judgment, but beyond 30 days after the entry of judgment, cannot invoke the jurisdiction of this court and therefore must be dismissed. Duke v. Metropolitan Atlanta Rapid Transit Auth., 166 Ga. App. 773, 305 S.E.2d 404 (1983).

Momentary incapacity of attorney.

- Contention that the defendant was denied effective assistance of counsel when the defendant entered the defendant's guilty plea because the defendant's attorney suffered from laryngitis was not a sufficient reason for granting an out-of-time appeal, there being no claim of substantive or technical ineffectiveness on the part of counsel. Holbrook v. State, 171 Ga. App. 449, 320 S.E.2d 637 (1984).

Effect of attorney's incompetency in filing.

- Although the defendant alleged in the defendant's motion for an out-of-time appeal that the defendant asked trial counsel to file an appeal from the defendant's criminal convictions and the defendant's trial counsel performed inadequately by failing to do so, the trial court did not err in denying the defendant's motion as the defendant was also required to allege, but did not allege, the issues that the defendant would have raised if the out-of-time appeal were granted and that those issues could be resolved by reference to the facts in the record. White v. State, 261 Ga. App. 866, 584 S.E.2d 5 (2003).

Opposing counsel's consent to late filing.

- Without proper and timely filing of notice of appeal, dismissal is required in spite of the fact of consent given by opposing counsel to the late appeal, as parties may not give jurisdiction to a court by consent, express or implied, as to the person or subject matter of an action. Clark v. State, 182 Ga. App. 752, 357 S.E.2d 109 (1987).

Motion in arrest of judgment did not toll appeal time.

- Defendant's motion in arrest of judgment did not toll the time for filing an appeal of the defendant's conviction under O.C.G.A. § 5-6-38(a) as the appeal was filed after the term of the trial court in which the defendant was convicted and was untimely under O.C.G.A. § 17-9-61(b); the fact that the trial court was late in sending the defendant written notice of its ruling on the motion in arrest of judgment did not deny the defendant the right to appeal the conviction, which was lost years earlier when the motion in arrest of judgment was untimely filed. Smith v. State, 263 Ga. App. 414, 587 S.E.2d 787 (2003).

Court reporter delayed filing transcript.

- Appeal was timely as the notice of appeal was filed within 30 days after entry of an appealable judgment as required by O.C.G.A. § 5-6-38(a); although the court reporter inexplicably did not file the transcript with the court until two years later, the defendant did not cause an unreasonable and inexcusable delay in filing the appeal. Johnson v. State, 259 Ga. App. 452, 576 S.E.2d 911 (2003).

State prisoner should have been aware of alleged civil rights claims against a court reporter and clerk prior to the dismissal of untimely habeas petition because the prisoner had one year and 30 days from the time the conviction became final under O.C.G.A. § 5-6-38(a) and 28 U.S.C. § 2244(d)(1) to file a habeas petition and the prisoner should have known sometime within the three years until the court received the record that the prisoner's right to file a habeas petition had been compromised. Further, the prisoner waited more than two years after the court received the record to file the civil rights claims. Salas v. Pierce, F.3d (11th Cir. Oct. 23, 2008)(Unpublished).

No automatic extension except as specifically provided.

- Date for filing notice of appeal is not automatically extended by proceedings following final judgment except in those instances specifically set forth. This section contains no provision which would permit time for filing notice of appeal to be extended further by filing motion for rehearing after motion for new trial has been overruled when judgment overruling motion is not vacated. Hogan v. State, 118 Ga. App. 398, 163 S.E.2d 889 (1968). (But see Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976)).

Appeal is not timely when motion on which the appeal is based is not included among motions enumerated in this section, which automatically extend filing date for notice of appeal. Robinson v. Carswell, 147 Ga. App. 521, 249 S.E.2d 331 (1978). (But see Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976)).

"Has been filed," regarding a delaying motion, means filed within 30 days after entry of judgment. Smith v. Forrester, 145 Ga. App. 281, 243 S.E.2d 575 (1978); Mayo v. State, 148 Ga. App. 213, 251 S.E.2d 80 (1978).

Reaffirmance of dismissal of counterclaims does not extend time for filing.

- When the time for filing the notice of appeal runs from the date of the voluntary dismissal of the appellees' counterclaims, the trial court is powerless to extend the time by entering a subsequent order reaffirming the dismissal of the complaint, even had the court intended to do so. Caswell v. Caswell, 157 Ga. App. 710, 278 S.E.2d 452 (1981).

Motion to set aside judgment.

- There is at least one motion not enumerated in subsection (a) which has effect of extending time for filing notice of appeal, to wit: a motion to set aside judgment. Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976). (But see MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995)).

Motion to set aside, even though based on a nonamendable defect and/or lack of jurisdiction, cannot extend the time for filing a notice of appeal. MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).

Pendency of motion for new trial extends time for filing a notice of appeal. Hughes v. Newell, 152 Ga. App. 618, 263 S.E.2d 505 (1979).

Motion to dismiss appeal on ground that notice of appeal was filed more than 30 days after judgment of conviction was without merit, when intervening time was tolled by motion for new trial, the judgment denying which was filed 29 days prior to filing of notice of appeal. Reed v. State, 163 Ga. App. 364, 295 S.E.2d 108 (1982).

Motion for new trial must be timely filed to toll time.

- When purported motion for new trial was not filed within 30 days as required by former Code 1933, § 70-301 (see O.C.G.A. § 5-5-40), it was thus void and of no effect, and therefore did not toll time for filing notice of appeal under Ga. L. 1968, p. 1072, § 7. Johnson v. State, 227 Ga. 219, 180 S.E.2d 94 (1971).

An untimely motion for new trial is void and does not operate to toll the time for filing of the notice of appeal. Wright v. Rhodes, 198 Ga. App. 269, 401 S.E.2d 35 (1990).

Motions for modification of sentence and to correct a void and illegal sentence did not toll or extend the time for appeal. Syms v. State, 232 Ga. App. 724, 502 S.E.2d 741 (1998).

Appealling denial of exoneration and discharge as void.

- Trial court's 1998 sentencing order denying the defendant exoneration and discharge was void as a matter of law because the state never filed a motion for revocation; thus, exoneration and discharge was automatic under the First Offender Act, O.C.G.A. § 42-8-60(e), (g), and (h), and the defendant's motion to correct a void sentence was improperly denied. Collins v. State, 338 Ga. App. 886, 792 S.E.2d 134 (2016).

Application for new trial is made only by filing motion for new trial. Smith v. Forrester, 145 Ga. App. 281, 243 S.E.2d 575, cert. denied, 439 U.S. 863, 99 S. Ct. 185, 58 L. Ed. 2d 172 (1978).

"Arrest of judgment" refers to criminal appeals.

- Exclusive method by which civil judgments may be attacked is set forth in O.C.G.A. § 9-11-60 and an arrest of judgment is not enumerated therein. Thus, even though O.C.G.A. § 5-6-38 lists "arrest of judgment" as one of the motions which extends the time for filing a notice of appeal, it apparently refers to criminal appeals. Daniels v. McRae, 180 Ga. App. 732, 350 S.E.2d 317 (1986).

Motion to amend findings of fact and conclusions of law is not a motion which extends the time for filing a notice of appeal in a civil case. American Flat Glass Distribs., Inc. v. Michael, 260 Ga. 312, 392 S.E.2d 855 (1990).

Petition to set aside probate court determination.

- Claimant's "petition to set aside" a probate court determination that she was not the widow of the decedent was properly treated as a motion for new trial, which tolled the time for appeal to the superior court. Reid v. Reid, 201 Ga. App. 530, 411 S.E.2d 754 (1991).

Motion for reconsideration was treated as motion for new trial.

- Buyer's pending motion for reconsideration in a state court suit was construed as a motion for a new trial since nomenclature did not control and the motion raised both factual and legal issues by claiming that the evidence did not show fraud by the buyer because the brokerage agreement with a real estate broker had expired when the buyer purchased the property; since the motion for reconsideration was a motion for a new trial, the motion tolled the time for filing an appeal and the judgment in the state court suit was not final under Georgia law for collateral estoppel purposes in an adversary proceeding in a bankruptcy court. Homeland Group, LLC v. Lawson (In re Credolawson), 546 Bankr. 888 (Bankr. N.D. Ga. 2016).

Motion to amend judgment.

- Appeal from a motion to amend judgment of a probate court is not a final judgment and thus, is not an appealable decision within the meaning of O.C.G.A. § 5-3-2(a). Nor will such a motion extend the date for filing a notice of appeal under the plain and literal language of O.C.G.A. § 5-3-20(a). Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).

Motion to withdraw findings of fact and conclusions of law.

- W.T.A. Assocs. v. Beamon, 141 Ga. App. 25, 232 S.E.2d 373 (1977).

Motion for a new trial as to grant of summary judgment.

- Motion for new trial is not proper vehicle for obtaining re-examination of grant of summary judgment and motion so filed has no validity and will not extend filing date of notice of appeal. Shine v. Sportservice Corp., 140 Ga. App. 355, 231 S.E.2d 130 (1976); Moore v. First Nat'l Bank, 148 Ga. App. 631, 252 S.E.2d 60 (1979).

Time not extended when motion for new trial not proper.

- When new-trial motion is not proper vehicle for review of the trial court's action, the motion has no validity and will not extend the time for filing the notice of appeal. Pillow v. Seymour, 255 Ga. 683, 341 S.E.2d 447 (1986).

Parent's appeal from the imposition of attorney's fees against the parent in a contempt finding was dismissed as untimely under O.C.G.A. § 5-6-38(a); the parent's motion for new trial was not the proper vehicle for a purely legal challenge to the judgment and, therefore, the motion did not toll the time for filing the appeal. Parker v. Robinson, 337 Ga. App. 362, 787 S.E.2d 317 (2016).

Motion for new trial.

- When new-trial motion is not proper vehicle for review of the trial court's action, the motion has no validity and will not extend the time for filing the notice of appeal. Pillow v. Seymour, 255 Ga. 683, 341 S.E.2d 447 (1986).

Motion for new trial that was not filed within 30 days as required by O.C.G.A. § 5-5-40 was void, had no effect and did not toll the time for filing a notice of appeal under O.C.G.A. § 5-6-38. Peters v. State, 237 Ga. App. 625, 516 S.E.2d 331 (1999).

O.C.G.A. § 5-6-38 requires a trial court order granting, denying, or otherwise finally disposing of a party's motion for new trial in order to extend the time for filing a notice of appeal more than 30 days after the entry of judgment; a party's voluntary withdrawal of the party's motion for new trial, standing alone, is not the statutorily required court order finally disposing of the motion for new trial. Heard v. State, 274 Ga. 196, 552 S.E.2d 818 (2001).

Second application for appeal untimely.

- Because plaintiff filed a second application for discretionary appeal on June 28, 2010, after withdrawing the plaintiff's motion for new trial, the motion was untimely as the motion was filed 61 days after the entry of the judgment on April 28, 2010; pursuant to O.C.G.A. § 5-6-38, the trial court had to dispose of the motion for new trial to extend the time for filing a notice of appeal. Cooper v. Spotts, 309 Ga. App. 361, 710 S.E.2d 159 (2011).

Improper motion for new trial.

- Alleged motion for new trial which did not contest factual issues or errors contributing to the verdict, but instead challenged only the trial court's legal conclusions and judgment, was not a proper motion for new trial and did not entitle party an automatic stay in filing the party's notice of appeal. Bank S. Mtg., Inc. v. Starr, 208 Ga. App. 19, 429 S.E.2d 700 (1993).

Nunc pro tunc entry does not extend the statutory period for filing a notice of appeal. Bowen v. Clayton County Hosp. Auth., 160 Ga. App. 809, 288 S.E.2d 232 (1982).

Motion to set aside.

- Although the denial of a motion to set aside is final and appealable, such a motion is not one which will automatically extend the time for a filing notice of appeal on the underlying judgment. Dutton v. Dykes, 159 Ga. App. 48, 283 S.E.2d 28 (1981). (But see Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976)).

When the defendant chose to denominate the defendant's motion as one to vacate and set aside the summary judgment, but the motion was nothing more than a request for a reconsideration of the trial court's summary judgment award, the motion did not extend the time for the filing of a notice of appeal, and therefore the notice of appeal was not timely filed. Perryman v. Georgia Power Co., 180 Ga. App. 259, 348 S.E.2d 762 (1986), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).

Motion to set aside the judgment, which was not predicated upon a nonamendable defect or a lack of jurisdiction, did not extend the time for the filing of a notice of appeal. Rockdale County v. Water Rights Comm., Inc., 189 Ga. App. 873, 377 S.E.2d 730 (1989).

Motion to reinstate an action dismissed as a sanction for failure to comply with the trial court's order to answer interrogatories timely cannot be considered as one of the three types of motions which toll the running of the time for appeal from the judgment of dismissal. Daniels v. McRae, 180 Ga. App. 732, 350 S.E.2d 317 (1986).

Motion for rehearing order denying motion coram nobis.

- Motion for a rehearing of order denying motion coram nobis and other motions of this type is not one of the three motions which automatically toll 30-day filing period. Allanson v. State, 239 Ga. 154, 236 S.E.2d 348 (1977).

Modification of summary judgment order.

- Granting of summary judgment is an appealable order under Ga. L. 1975, p. 757, § 3 (see O.C.G.A. § 9-11-56(h)) and a modification of that order does not automatically extend filing date for notice of appeal under Ga. L. 1968, p. 1072, § 7. Wilson v. Coite Somers Co., 138 Ga. App. 455, 226 S.E.2d 277 (1976).

Demand for jury trial subsequent to judgment of trial court in suit to quiet title cannot be regarded as one of the enumerated ways specified in section to toll 30-day period in which notice of appeal must be filed from final judgment. Thornton v. Reb Properties, Inc., 237 Ga. 59, 226 S.E.2d 741 (1976).

Motion to vacate and set aside final judgment is not a motion included among those motions enumerated in this section. Williams v. Keebler, 222 Ga. 437, 150 S.E.2d 674, answer conformed to, 114 Ga. App. 332, 151 S.E.2d 483 (1966); Shannon Co. v. Heneveld, 135 Ga. App. 252, 217 S.E.2d 424, rev'd on other grounds, 238 Ga. 635, 221 S.E.2d 200 (1975); Lawler v. Georgia Mut. Ins. Co., 156 Ga. App. 265, 276 S.E.2d 646 (1980).

Motion to vacate and set aside final judgment does not extend the time for filing a notice of appeal. Law Offices of Johnson & Robinson v. Fortson, 175 Ga. App. 706, 334 S.E.2d 33 (1985), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).

Motion to strike a portion of the jury verdict and the judgment is not one of the three statutory motions which extend the time for filing a notice of appeal, and the appellant's failure to follow the procedures for discretionary appeal require the appeal's dismissal. Jones v. Robertson, 191 Ga. App. 537, 382 S.E.2d 382 (1989).

Motion to vacate and/or amend an order of dismissal is not one of the three statutory motions which extend the time of filing of the notice of appeal. Mathis v. Hegwood, 169 Ga. App. 547, 314 S.E.2d 122, cert. denied, 469 U.S. 830, 105 S. Ct. 115, 83 L. Ed. 2d 58 (1984), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).

Attempt to amend notice of appeal, which was timely as to summary judgment in one case, to incorporate previously unfiled notice of appeal in a companion case was untimely when summary judgment in companion case had been granted 75 days earlier. Newton v. K.B. Property Mgt. of Ga., Inc., 166 Ga. App. 901, 306 S.E.2d 5 (1983).

Lack of notice of entry of judgment does not extend time for filing a notice of appeal. Atlantic-Canadian Corp. v. Hammer, Siler, George Assocs., 167 Ga. App. 257, 306 S.E.2d 22 (1983).

Supersedeas is not among exceptions which automatically extend filing date for notices of appeal. Wilson v. McQueen, 224 Ga. 420, 162 S.E.2d 313 (1968), overruled on other grounds, Austin v. Carter, 248 Ga. 776, 285 S.E.2d 542 (1982).

Jurisdiction of probate court in county without more than 100,000 persons.

- Probate court of county that did not have a population of more than 100,000 persons according to either the 1980 or 1990 decennial census lacked authority to entertain a motion for new trial, and any such motion therefore being without legal force and effect before the county probate court, would not serve to extend the time for filing a notice of appeal under either subsection (a) of O.C.G.A. § 5-6-38 or O.C.G.A. § 5-3-20. Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).

Construction of "holidays."

- Because the plain language of O.C.G.A. § 1-3-1(a) and § 5-6-38(a) make no provisions for extending the filing time for notices of appeal to compensate for county declared holidays and O.C.G.A. § 1-4-2 limits religious holidays to Sundays, Good Friday did not constitute a holiday for purposes of extending the filing date. In re Estate of Dasher, 259 Ga. App. 201, 575 S.E.2d 921 (2002).

Cross appeal not required.

- Ruling that becomes material to an enumeration of error urged by an appellant may be considered by the appellate court without the necessity of a cross-appeal. Dunn v. Five Star Dodge-Jeep-Eagle-Mazda, Inc., 245 Ga. App. 378, 537 S.E.2d 782 (2000).

Because the trial court had entered an order denying several of the appellee's motions, including summary judgment motions, after the appellants filed their notice of appeal from a contempt order, the appellate court had jurisdiction to consider the appellee's cross-appeal pursuant to O.C.G.A. § 5-6-38(a); the appellee's cross-appeal was preceded by the trial court's denial order and, therefore, it could be considered on appeal. Rhone v. Bolden, 270 Ga. App. 712, 608 S.E.2d 22 (2004).

By appellee.

- Appellee may institute a cross-appeal against a party other than an appellant. Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317, 380 S.E.2d 704 (1989).

Cross appeal need not be grounded upon same ruling as main appeal.

- Section expressly declares that appellee may raise all errors or rulings on cross appeal, and it need not be grounded upon same ruling as main appeal. Nager v. Lad'n Dad Slacks, 148 Ga. App. 401, 251 S.E.2d 330 (1978).

Valid appeal must be perfected before cross appeal can be perfected.

- Valid appeal from judgment must be perfected in accordance with this article so as to give appellate court jurisdiction, before cross appeal by any other party to case can be perfected so as to give appellate court jurisdiction of cross appeal. Wood v. Atkinson, 229 Ga. 179, 190 S.E.2d 46 (1972); Ewing Holding Corp. v. Egan-Stanley Invs., Inc., 154 Ga. App. 493, 268 S.E.2d 733 (1980).

Cross-appeal to appealable order.

- Appeal which, standing alone, would be subject to discretionary appeal procedures, is appealable as a matter of right if the appeal is classifiable as a cross-appeal to an appealable order. Buschel v. Kysor/Warren, 213 Ga. App. 91, 444 S.E.2d 105 (1994).

Independent appeal authorized by O.C.G.A. § 5-6-38 was not the direct appeal to a discovery ruling attempted by a codefendant in a breach of contract action, but was an application for discretionary review of a timely certified interlocutory discovery order, and failure to properly perfect this appeal resulted in dismissal of the appeal. Reliance Ins. Co. v. Cobb County, 235 Ga. App. 685, 510 S.E.2d 129 (1998).

Cross appeal from nonfinal judgment permissible though main appeal is from judgment disposing of only one party and case remains pending in court below. Garrett v. Heisler, 149 Ga. App. 240, 253 S.E.2d 863 (1979).

Codefendant in a breach of contract action was an "appellee" within the meaning of O.C.G.A. § 5-6-38, and was entitled to file a notice of cross-appeal within 15 days from service of the notice of appeal of a pre-final judgment discovery ruling by the other codefendant. Reliance Ins. Co. v. Cobb County, 235 Ga. App. 685, 510 S.E.2d 129 (1998).

Cross appeal may concern motion to dismiss while main appeal concerns judgment dismissing party.

- Ga. L. 1968, p. 1072, § 7 and Ga. L. 1973, p. 303, § 1 (see O.C.G.A. §§ 5-6-37 and5-6-38) allow appellee to file, as a matter of right, a cross appeal as to the trial court's judgment denying the appellee's motion to dismiss when the appellant appeals the trial court's judgment dismissing another party from the case. Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676 (1978).

Because challengers who opposed a decision of the Coastal Marshlands Protection Committee granting a permit to a developer failed to comply with O.C.G.A. § 50-13-19(b), the trial court lacked jurisdiction to consider their untimely petition; nevertheless, because the committee and the developer filed timely petitions for review in the trial court, and then appealed to the court of appeals, the challengers' appeals were properly before the court of appeals as cross-appeals filed pursuant to O.C.G.A. § 5-6-38(a). Coastal Marshlands Prot. Comm. v. Ctr. for a Sustainable Coast, 286 Ga. App. 518, 649 S.E.2d 619 (2007), aff'd, 284 Ga. 736, 670 S.E.2d 429 (2008).

Cross-appeal to a cross-appeal is not contemplated by O.C.G.A. § 5-6-38(a). Jones v. White, 311 Ga. App. 822, 717 S.E.2d 322 (2011).

Although entitled a "cross-appeal," when defendant's appeal was actually an attempted independent appeal from the trial court's subsequent award of post-judgment interest to the plaintiff, the defendant's appeal was not subject to dismissal under O.C.G.A. § 5-6-38 for not having been filed within 15 days of service of plaintiff's notice of appeal. Beavers v. Gilstrap, 210 Ga. App. 46, 435 S.E.2d 267 (1993).

Notice of cross appeal required.

- Appellee may not present enumerations of error concerning rulings adverse to it without filing a notice of cross appeal. Chester v. Georgia Mut. Ins. Co., 165 Ga. App. 783, 302 S.E.2d 594 (1983).

When the appellee has filed briefs in the appellate court in support of a cross appeal attacking the grant of summary judgment to appellants but no such cross appeal has been docketed in the appellate court, the correctness of the trial court's grant of summary judgment to appellants is not before the appellate court and will not be considered. Chester v. Georgia Mut. Ins. Co., 165 Ga. App. 783, 302 S.E.2d 594 (1983).

Notice held untimely.

- When cross-appellants contended that because appellant in August 1986 successfully moved the trial court to allow the appellant to amend the appellant's notice of appeal merely to change the designated parts of the record necessary to the appellant's appeal and thus to delete certain portions of the record, this constituted a novation or extension of the appellant's original notice of appeal of April 11, 1986, it was held that the filing of the cross appeal in the Supreme Court on August 25 must be related to the original notice of appeal filed by appellant April 11 and could draw life from a mere modification of the notice of appeal reducing the amount of record as originally noticed in the original appeal. It followed that the filing of the notice of cross appeal on August 25, 1986, was far beyond the 15 days allowed for the filing of such a cross appeal. Mobley v. Coast House, Ltd., 182 Ga. App. 305, 355 S.E.2d 686 (1987).

When a habeas corpus petitioner cross-appealed the trial court's decision after the warden appealed the decisiont, the petitioner's cross-appeal was timely because the cross-appeal was filed within the 15 days allowed by O.C.G.A. § 5-6-38(a) plus the 3-day extension provided in O.C.G.A. § 9-11-6(e) as the warden's notice of appeal was mailed to the petitioner. Head v. Thomason, 276 Ga. 434, 578 S.E.2d 426, cert. denied, 540 U.S. 957, 124 S. Ct. 409, 157 L. Ed. 2d 294 (2003).

Failure to file notice of cross appeal makes review of brief unnecessary.

- When appellee denominates one section of the appellee's brief a "cross appeal," but the record reveals that no notice of cross appeal was ever filed, the Court of Appeals need not address this contention in view of subsections (a) and (b) of O.C.G.A. § 5-6-38. Life Ins. Co. v. Helmuth, 182 Ga. App. 750, 357 S.E.2d 107, cert. denied, 182 Ga. App. 910, 357 S.E.2d 107 (1987).

When appellee asserted in a pro se responsive brief that the trial court erred in finding that the appellee was indebted to the appellant for post-acceleration interest on the accelerated balance, the court of appeals was unable to address this assertion since no cross-appeal had been filed. Karr v. Ryback, 186 Ga. App. 842, 368 S.E.2d 799 (1988).

Motion to have costs of preparing transcript and record for appeal divided equally between the plaintiff and the defendant deals with costs incurred in the trial court and should be addressed to that court subject to review on appeal. Van Geter v. Housing Auth., 167 Ga. App. 432, 306 S.E.2d 707 (1983), aff'd, 252 Ga. 196, 312 S.E.2d 309 (1984).

Cross appeal permitted after interlocutory appeal granted.

- Because the Court of Appeals of Georgia granted an application for interlocutory appeal to the Department of Transportation in a slip and fall case, a city's cross-appeal was properly before the court. Ga. DOT v. Strickland, 279 Ga. App. 753, 632 S.E.2d 416 (2006).

Criminal defendants cannot cross appeal suits brought by state.

- Despite resultant justice and judicial economy, the court will not allow criminal defendants to cross appeal suits brought before the court by the state pursuant to O.C.G.A. § 5-7-1; O.C.G.A. § 5-6-38 limits that right to civil parties and the court will not encroach upon the legislature's prerogative by extending that right. State v. Crapse, 173 Ga. App. 100, 325 S.E.2d 620 (1984), overruled on other grounds, Hubbard v. State, 176 Ga. App. 622, 337 S.E.2d 60 (1985).

Cross-appeal of claims not ruled upon.

- Prisoner's ineffective- assistance-of-counsel claim under 28 U.S.C. § 2254 was improperly found procedurally barred because it was not firmly established under O.C.G.A. § 9-14-52 or O.C.G.A. § 5-6-38 and was not a regularly followed state practice for a prisoner to cross appeal claims upon which a state habeas court did not rule when the prisoner was successful on the prisoner's other state habeas claim. Mancill v. Hall, 545 F.3d 935 (11th Cir. 2008).

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 252 et seq.

2 Am. Jur. Pleading and Practice Forms, Appeal and Error, § 69.

C.J.S.

- 4 C.J.S., Appeal and Error, §§ 361 et seq., 494.

ALR.

- Lower court's consideration, on the merits, of unseasonable application for new trial, rehearing, or other re-examination, as affecting time in which to apply for appellate review, 148 A.L.R. 795.

Amendment of judgment as affecting time for taking or prosecuting appellate review proceedings, 21 A.L.R.2d 285.

Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 A.L.R.2d 482.

Participation in, acceptance of, or submission to new trial as precluding appellate review of order granting it or of issue determined in first trial, 67 A.L.R.2d 191.

Retroactive effect on appeal from judgment previously entered of statute shortening time allowed for appellate review, 81 A.L.R.2d 417.

Right to perfect appeal, against party who has not appealed, by cross appeal filed after time for direct appeal has passed, 32 A.L.R.3d 1290.

Filing of notice of appeal as affecting jurisdiction of state trial court to consider motion to vacate judgment, 5 A.L.R.5th 422.

Effect of escape by, or fugitive status of, state criminal defendant on availability of appeal or other post-verdict or post-conviction relief - State cases, 105 A.L.R.5th 529.