Cherry v. HerschCherry v. Hersch
On July 14, 1986, the plaintiff-appellant Dede Cherry was assaulted, robbed, and raped by Jeffrey Russell. She and her husband, Ricky Cherry, brought an action against Nica Hersch and J. Brown Moseley, Mitchell County District Attorney; Dot Brown, Mitchell County Superior Court Clerk; and the Mitchell County Superior Court Clerk’s Office for their alleged failure to properly process a plea to a crime previously committed by Russell, who therefore was at liberty when the opportunity to attack Mrs. Cherry arose. Mr. Cherry has joined in his wife’s action and has claimed damages for loss of consortium. The appellants contend that had the guilty plea been processed as it should have been, Russell would not have been released from jail (where he was serving time for prior convictions), and therefore could not have assaulted, robbed, and raped Mrs. Cherry. The defendants-appellees asserted the defenses of prosecutorial immunity and intervening criminal act.
On April 6, 1988, Hersch and Moseley were granted summary judgment on all grounds, and on April 26 Mr. and Mrs. Cherry moved to certify this judgment as a final judgment. On June 2,1988, the trial court entered an order styled “Final Judgment,” and stating in its
Mr. & Mrs. Cherry have filed two appeals. In Case No. A89A1657 they appeal the order dismissing their July 11, 1988, notice of appeal. In Case No. A89A1658 they appeal the April 6, 1988, order granting summary judgment to Hersch and Moseley. Held:
1. The appellants assert that the June 2, 1988, “Final Judgment” order was not a final, appealable order because it lacked the exact “finality and delay” language contained in OCGA § 9-11-54 (b), and that because this order was not appealable, their July 1988 appeal was premature and void, making their current appeal proper.
Under OCGA § 5-6-34, all final judgments, except those deemed to be discretionary, are directly appealable to this court. However, in a multiple-party case, an entry of a judgment as to one or more but fewer than all of the claims or parties is a final, appealable judgment under OCGA § 9-11-54 (b)
only
upon “an express determination that there is no just reason for delay and upon an express direction for the entry of judgment” by the trial court. OCGA § 9-11-54 (b);
Culwell v. Lomas & Nettleton Co.,
In the instant case the June 2 “Final Judgment” order did not recite the exact language of OCGA § 9-11-54 (b). However, the order makes express provisions and shows by its langüage (“Final Judgment . . . [C]lerk is directed to enter final judgment in [Hersch’s and Moseley’s] favor”) a clear intent by the trial judge that the order be final, and therefore appealable as to Hersch and Moseley. See
Parks v. Atlanta Public School System,
Furthermore, it was pursuant to a request by the appellants that the order was certified as a final judgment. The appellants cannot now repudiate their earlier attempt at appeal by claiming it to have
2. Since Mr. and Mrs. Cherry failed to file a timely appeal from the “Final Judgment” order as discussed above in Division 1, this court is without jurisdiction to review the trial court’s grant of summary judgment as to appellees Hersch and Moseley.
Quarterman v. Quarterman,
Judgment affirmed in Case No. A89A1657. The appeal is dismissed in Case No. A89A1658.