O.C.G.A. § 9-11-62 (2019)

Annotations

Cross references. - Suspension of judgment by entry of appeal, § 9-12-19. U.S. Code. - For provisions of Federal Rules of Civil Procedure, Rule 62, and annotations pertaining thereto, see 28 U.S.C.

Law reviews. - For note discussing procedure for issuance and amendment of a writ of execution, see 12 Ga. L. Rev. 814 (1978).

JUDICIAL DECISIONS Judgments effective upon entry. - Absent supersedeas, judgments are effec-

tive and therefore payable upon entry, even though execution thereon may be

delayed ten days. Leventhal v. Citizens & S. Nat’l Bank, 249 Ga. 390, 291 S.E.2d 222 (1982). Clear mandate of subsection (a) of O.C.G.A. § 9-11-62 is to provide the party against whom a judgment has been entered the right to be free from execution and from proceedings for enforcement of the judgment for a period of ten days in order to determine the party’s future course of action. Bank S. v. Roswell Jeep Eagle, Inc., 200 Ga. App. 489, 408 S.E.2d 503 (1991). Trial court’s issuance of a writ of fieri facias at the time of the entry of the court’s judgment against a law client violated O.C.G.A. § 9-11-62(a) as the judgment deprived the client of the client’s right to be free from execution of the judgment for ten days in order to determine the client’s future course of conduct; however, the trial court thereafter ordered that the client could post a cash bond, which rendered the issuance of the writ harmless. Landau v. Davis Law Group, P.C., 269 Ga. App. 904, 605 S.E.2d 461 (2004). Exemption of injunction cases from automatic supersedeas. - It was the intention of the legislature in enacting Ga. L. 1966, p. 609, § 62 (see now O.C.G.A. § 9-11-62) to exempt injunction cases from the automatic supersedeas provisions of former Code 1933, § 6-1002 (see now O.C.G.A. § 5-6-46). Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); Davis v. Creative Land Dev. Corp., 230 Ga. 47, 195 S.E.2d 411 (1973). Trial court had authority to hold a property owner in contempt for failure to comply with a court order that imposed a permanent restraining order in favor of the owner’s neighbors, even though the order was on appeal, as there was no order by the court that stayed the judgment pending appeal, pursuant to O.C.G.A. § 9-11-62(a), which was an exception to the automatic supersedeas provisions of O.C.G.A. § 5-6-46. Knapp v. Cross, 279 Ga. App. 632, 632 S.E.2d 157 (2006). Because a property owner complied with an injunction without first obtaining a grant of supersedeas, the owner’s appeal from the judgment granting the injunction was dismissed as moot,

pursuant to a rule of equitable jurisprudence and appellate procedure as well as O.C.G.A. § 9-11-62(a). Babb v. Putnam County, 269 Ga. App. 431, 605 S.E.2d 33 (2004). Exemption of receivership case from automatic supersedeas. - In an action to dissolve a corporation, the filing of a notice of appeal from an order providing for either a forced sale or redesignation of a custodian as a receiver did not divest the trial court of jurisdiction to enter a final order converting the custodianship into a receivership since the final order merely implemented the earlier determination. Black v. Graham, 266 Ga. 154, 464 S.E.2d 814 (1996). Exemption of administrative decisions from automatic supersedeas. - In an action in which the school district appealed an administrative law judge’s (ALJ) decision in favor of the parents that awarded $14,875 to the parents for reimbursement of the cost of private education services provided to the child and paid for by the child’s parents, enforcement of that provision of the ALJ’s final decision was stayed pursuant to Fed. R. Civ. P. 62(f ) because in Georgia, the school district was a county agency, under O.C.G.A. § 9-11-62(d), the district would be entitled to a stay without having to post a bond. Dekalb County Sch. Dist. v. J.W.M., 445 F. Supp. 2d 1371 (N.D. Ga. 2006). Good cause for a supersedeas bond was financial difficulties. Leventhal v. Seiter, 208 Ga. App. 158, 430 S.E.2d 378 (1993). Trial court is empowered to suspend or modify an injunction after appeal is taken therefrom by requiring a bond of plaintiff or otherwise so as to insure the security of the rights of the adverse party. Stephens v. Geise, 226 Ga. 639, 176 S.E.2d 923 (1970). Under subsection (c) of O.C.G.A. § 9-11-62, the trial court was authorized to modify an earlier order to protect the rights of the parties notwithstanding a pending appeal. Etheredge v. All Am. Hummer Limousines, Inc., 269 Ga. 436, 498 S.E.2d 60 (1998). Burden rests upon appellant to obtain such order as will protect the appellant’s rights and preserve the sta-

tus quo during the pendency of the appeal. Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); Davis v. Creative Land Dev. Corp., 230 Ga. 47, 195 S.E.2d 411 (1973). To stop an action that has been ordered by trial court, supersedeas must be obtained from the trial court or from an appellate court in the event the trial court refuses to grant a supersedeas. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974). Failure to file supersedeas or notice of appeal. - Subsection (a) of O.C.G.A. § 9-11-62, by negative implication, clearly allows an execution to issue upon a judgement after the ten-day period has run, if a notice of appeal or post-trial motion acting as a supersedeas has not been filed. Bank S. v. Roswell Jeep Eagle, Inc., 200 Ga. App. 489, 408 S.E.2d 503 (1991). Once ordered action is done appeal becomes moot. - Without supersedeas, an action ordered by the trial court must be done as ordered, and once the ordered action is taken, the complaint about its being erroneously ordered becomes moot. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974); Jackson v. Bibb County Sch. Dist., 271 Ga. 18, 515 S.E.2d 151 (1999); Peters v. State, 237 Ga. App. 625, 516 S.E.2d 331 (1999). To prevent appeal of an order requiring action which may affect the rights of litigants from becoming moot, it is necessary for the appealing party to obtain a supersedeas; if supersedeas is not obtained, and the ordered action takes place as ordered, the appeal becomes moot. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974); Jackson v. Bibb County Sch. Dist., 271 Ga. 18, 515 S.E.2d 151 (1999). Vendor’s appeal from a one-year disqualification period from the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) was moot because the one-year period had expired by the time the appeal was heard; the vendor had not sought a stay or an injunction preventing the disqualification from taking place pending the appeal, pursuant to O.C.G.A. § 9-11-62. Babies Right Start v. Ga. Dep’t of Pub. Health, 293 Ga. 553, 748 S.E.2d 404 (2013). Appeals not to amount to indepen-

dent establishment of injunction. - No appeal from denial of an injunction should have the effect of establishing an injunction independently of an order of the court entered pursuant to subsection (c) of this section. Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); Davis v. Creative Land Dev. Corp., 230 Ga. 47, 195 S.E.2d 411 (1973). Mere appeal from an order denying an injunction, without further application for an interim order of supersedeas, does not impose any judicial restraint upon appellees’ activities nor prohibit execution of the matter sought to be enjoined. Clarke v. City of Atlanta, 231 Ga. 84, 200 S.E.2d 264 (1973). When judgment is entered declining to enjoin consummation of a future transaction, there is no legal impediment to prohibit the transaction from thereafter being effected; to erect such an impediment it is necessary for the losing party in the trial court to apply to such court for an injunction during the pendency of the appeal, and if the trial court denies such injunction, the losing party may then apply to the Supreme Court therefor. Citizens to Save Paulding County v. City of Atlanta, 236 Ga. 125, 223 S.E.2d 101 (1976). Appeal from denial of injunction moot once act is done. - When injunctive relief is denied at the trial level, and pending appeal such relief is not allowed by either the trial court or the Supreme Court, there is no legal prohibition against consummation of the act or transaction in question, and once such act or transaction has been consummated, appeal from the judgment that denied injunctive relief becomes moot. Citizens to Save Paulding County v. City of Atlanta, 236 Ga. 125, 223 S.E.2d 101 (1976). Appeals from restraining orders. - In action to enjoin holding of corporate stockholders meeting for the purpose of electing directors, when the trial court, after hearing, dissolves a restraining order and dismisses the complaint for failure to state a claim, and the stockholder’s meeting is then held, an appeal of the order dissolving the restraining order and dismissing the complaint must be dismissed pursuant to Ga. L. 1972, p. 624, § 1 (see now O.C.G.A. § 5-6-48).

Strickland v. Adams, 231 Ga. 729, 204 S.E.2d 294 (1974). Trial court has no authority to require county to post a supersedeas bond. Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978). Indigency does not avoid bond requirement. - O.C.G.A. § 9-11-62 contains no provision for avoiding bond by filing an indigency affidavit. Byelick v. Michel Herbelin U.S.A., Inc., 260 Ga. App. 111, 578 S.E.2d 907 (2003). Dismissal of prematurely instituted garnishment action. - Ordering that funds be paid into court and merely suspending the funds’ disbursal until such time as the judgment becomes final or until a supersedeas bond is posted is clearly not harmless when the proper action was dismissal of a prematurely instituted garnishment action. Tate v. Burns, 172 Ga. App. 688, 324 S.E.2d 485 (1984). Exempting custody provisions for the supersedeas action. - Appellate court found no error in the trial court’s inclusion in the court’s grant of a husband’s motion for supersedeas bond a provision excepting the custody provisions of the final decree from the supersedeas arising from the wife’s filing of a motion for new trial. Frazier v. Frazier, 280 Ga. 687, 631 S.E.2d 666 (2006). Motion for new trial did not act as supersedeas given court’s order to abide by child support award. - Trial court did not err in holding a spouse in contempt for failing to pay the child support that accrued while the spouse’s motion for new trial was pending; O.C.G.A. § 9-11-62(b) provided that filing a motion for new trial acted as a supersedeas unless otherwise ordered, and in this case, the trial court ordered the spouse to abide by the child support award. Franklin v. Franklin, 294 Ga. 204, 751 S.E.2d 411 (2013).

Cited in Berrie v. Baucknecht, 224 Ga. 432, 162 S.E.2d 317 (1968); Martin v. GMC, Fisher Body Div., 224 Ga. 677, 164 S.E.2d 107 (1968); Dennis v. City of Palmetto, 226 Ga. 853, 178 S.E.2d 161 (1970); Kilgore v. Buice, 229 Ga. 445, 192 S.E.2d 256 (1972); Lott v. Foskey, 230 Ga. 134, 196 S.E.2d 141 (1973); McGee v. Craig, 230 Ga. 553, 198 S.E.2d 165 (1973); Brown v. Auchmuty, 232 Ga. 879, 209 S.E.2d 209 (1974); McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975); Datry v. Metropolitan Atlanta Rapid Transit Auth., 235 Ga. 521, 221 S.E.2d 8 (1975); Georgia Ass’n of Educators v. Harris, 403 F. Supp. 961 (N.D. Ga. 1975); Adair v. Adair, 236 Ga. 443, 224 S.E.2d 21 (1976); Herring v. Herring, 138 Ga. App. 145, 225 S.E.2d 697 (1976); Killingsworth v. First Nat’l Bank, 237 Ga. 544, 228 S.E.2d 901 (1976); Anthony v. Anthony, 239 Ga. 273, 236 S.E.2d 621 (1977); Faulkner v. Georgia Power Co., 241 Ga. 618, 247 S.E.2d 80 (1978); Exum v. Long, 157 Ga. App. 592, 278 S.E.2d 13 (1981); Imperial Body Works, Inc. v. National Claims Serv., Inc., 158 Ga. App. 241, 279 S.E.2d 534 (1981); Hunnicutt v. Hunnicutt, 248 Ga. 516, 283 S.E.2d 891 (1981); Williamson v. Bank Bldg. & Equip. Corp. of Am., 162 Ga. App. 295, 291 S.E.2d 124 (1982); Radio Webs, Inc. v. Tele-Media Corp., 249 Ga. 598, 292 S.E.2d 712 (1982); Ronskowsky v. Peters, 254 Ga. 270, 327 S.E.2d 735 (1985); Jones v. Gordon, 182 Ga. App. 29, 354 S.E.2d 658 (1987); State v. Vurgess, 182 Ga. App. 544, 356 S.E.2d 273 (1987); Bell v. Bell, 247 Ga. App. 462, 543 S.E.2d 455 (2000); Goswick v. Murray County Bd. of Educ., 281 Ga. App. 442, 636 S.E.2d 133 (2006); Coleman v. Retina Consultants, P.C., 286 Ga. 317, 687 S.E.2d 457 (2009); Blackmore v. Blackmore, 311 Ga. App. 885, 717 S.E.2d 504 (2011); Higdon v. Higdon, 321 Ga. App. 260, 739 S.E.2d 498 (2013); Sherman v. Atlanta Indep. Sch. Sys., 293 Ga. 268, 744 S.E.2d 26 (2013).

RESEARCH REFERENCES Am. Jur. 2d. - 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 16 et seq. C.J.S. - 4 C.J.S., Appeal and Error,

§ 408 et seq. 33 C.J.S., Executions, § 152 et seq. 35B C.J.S., Federal Civil Procedure, § 1284 et seq. 49 C.J.S., Judgments, § 131 et seq.

ALR. - Right of state or federal court to protect litigants by enjoining proceedings in bankruptcy, 32 ALR 979. Judicial, execution, or tax sale on election day, holiday, or Sunday, 58 ALR 1273. Appeal from award of injunction as stay or supersedeas, 93 ALR 709.

Character, as direct or collateral attack, of action to set aside judgment, as affected by prayer for relief in respect of execution or other proceeding to enforce it, 140 ALR 823. Injunction pendente lite in suit for divorce or separation, 164 ALR 321.

ARTICLE 8 PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS