Cohran v. Carlin, 288 S.E.2d 81

Cohran v. Carlin

288 S.E.2d 81

Ga. Ct. App.

1981

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63237. COHRAN v. CARLIN et al.

Court of Appeals of Georgia

DECIDED DECEMBER 2, 1981

REHEARING DENIED DECEMBER 18, 1981

160 Ga. App. 762

DEEN, Presiding Judge.

attorneys unconnected with him. Code § 81A-114 dealing with third party complaints “does not allow the tender of another defendant who is or may be liable to the plaintiff.”

Balkcom v. Mull, 129 Ga. App. 277 (199 SE2d 346) (1973); . See also . From all of these facts it is clear that the order dismissing the third party defendants was in fact an order of dismissal and not the grant of a summary judgment, as contended by the appellant.

2. Having established that the order from which this appeal is made was not the grant of summary judgment, but a dismissal from this litigation of certain persons designated by appellant as third party defendants, we grant the motions to dismiss this appeal. The main case, together with the defendant‘s cross actions against the plaintiffs, is still pending in the trial court. There has been no grant by the trial judge of a 10-day certificate nor any petition for interlocutory review as required by Code § 6-701 (a) 2. We accordingly have no jurisdiction.

Lowe v. Payne, 130 Ga. App. 337 (203 SE2d 309) (1973).

Appeal dismissed. Banke and Carley, JJ., concur.

Larry Cohran, Hilton B. Dupree, Roy E. Barnes, for appellant. Steven W. Ludwick, Taylor W. Jones, M. Jerome Elmore, for appellees.

DEEN, Presiding Judge.

This contempt case arises from the litigation which was the subject of a notice of appeal in

Cohran v. Jones, 160 Ga. App. 761. The notice of appeal in that action was filed May 8, 1981 and has been dismissed by this court as the litigation is still pending in the trial court, appellant having failed to obtain permission for an interlocutory appeal as required by Code § 6-701 (a) 2. Two orders of the trial court passed the same day and requiring the defendant to answer certain interrogatories and make certain discovery were not complied with and this triggered the contempt judgment of June 15, 1981 from which this appeal was filed.

We affirm. Where, as in

Walker v. Walker, 239 Ga. 175 (236 SE2d 263) (1977) there is an appeal from a final judgment, such appeal deprives the trial court of jurisdiction to take further proceedings toward the enforcement of the judgment on appeal for the reason that Code Ann. § 6-1002 (a) provides that in civil cases a notice of appeal from such final judgment serves as a supersedeas. See also . Also, since the amendment to Code § 6-701 (a) 2 by Ga. L. 1975, pp. 757, 758 effective July 1, 1975, an order of the appellate court granting a petition for interlocutory review where the trial court had issued the required 10-day certificate that immediate review should be had, the notice of appeal timely filed thereafter “shall act as a supersedeas as provided in Section 6-1002 and the procedure thereafter shall be the same as in an appeal from a final judgment.”

Turner v. Harper, 233 Ga. 483 (211 SE2d 742) was decided on January 7, 1975, prior to the effective date of Code § 6-701 (a) 2 setting out the present procedure for interlocutory appeals. That case properly held under the law then obtaining that where an interlocutory appeal is certified for review in the appellate court (no petition for review to this court being a part of the prior procedure), “[T]he trial court retains jurisdiction with discretionary power to proceed with the trial or enter any other order in the case pending the appeal.” . It is clear that except for the right to automatic supersedeas set out in Code § 6-701 (a) 1 or 2 the trial court does in fact have jurisdiction to proceed with the case, although of course any judgment so rendered is subject to being vacated if adversely affected by the judgment in the pending appeal.

We have held in

Cohran v. Jones, supra, that the attempted appeal in that case, not being from a final judgment nor upon the grant of a petition for interlocutory review, was a nullity. The trial court accordingly retained jurisdiction with discretionary power to order the defendant to comply with certain interrogatories, subpoenas and other discovery requests, and to hold him in contempt for wilful failure to do so.

Judgment affirmed. Banke and Carley, JJ., concur.

Hilton B. Dupree, Roy E. Barnes, for appellant. Taylor W. Jones, for appellees.

ON MOTION FOR REHEARING.

The appellant‘s motion misconstrues our citation of

Turner v. Harper, 233 Ga. 483. We cited this case not as existing law but to support the proposition that supersedeas is a stay of proceedings in the trial court which can only come about legitimately when a statutory condition under which supersedeas is arrived at has been observed. Where there is no supersedeas pending appeal, the trial court has jurisdiction and may conduct further proceedings in the case.

We pointed out that the statutes provide two cases in which the appeal acts as a supersedeas. This is because Code § 6-1002 dealing with supersedeas in civil cases holds that in civil cases, “the notice of appeal filed as hereinbefore provided shall serve as a supersedeas, upon payment of all costs in the trial court by the appellant, and it shall not be necessary that a supersedeas bond be given . . .” (Emphasis supplied.)

Thus the filing of a notice of appeal “as hereinbefore provided” is a condition precedent to the grant of a supersedeas.

One of the two statutory methods of filing a notice of appeal so as to cause it to act as a supersedeas is that the notice of appeal be filed where the case is no longer pending in the trial court. Code § 6-701 (a) 1.

Cohran v. Jones, the main case and a companion case on this appeal, is still pending and its notice of appeal was obviously not from a final judgment.

The other statutory method is when the notice of appeal is filed from an otherwise unappealable order, after the trial court‘s certificate of review and this court‘s grant of an interlocutory appeal. See Code § 6-701 (a) 2, which specifically specifies that such grant acts as a supersedeas. Code § 6-701 (a) 2 (B).

In no other case does the attempt to appeal a case by the filing of a notice of appeal act as a supersedeas. This contempt arose out of a failure to comply with an interlocutory order in the main case where an appeal of the main case was attempted. However, that attempted appeal was not from a final judgment and it was not one containing either a certificate of review or a grant from this court. Neither was it one of the specially enumerated proceedings mentioned in the statute. Therefore, it was a mere nullity.

The appeal in

Cohran v. Carlin, was from disobedience of an order in the main case not invoking supersedeas in either of the ways it may presently be invoked. Thus the question of supersedeas had to be decided as though these statutes did not exist, since neither statutory method had been triggered. simply stood for the proposition that where supersedeas is not involved, the trial court has a discretionary power to proceed with the trial (but at his peril, of course, if the case is reversed on appeal).

Here there was no valid notice of appeal in the main case and the appeal was dismissed. The trial court therefore was not subject to the restrictions of a supersedeas and he did have jurisdiction to compel obedience to a further interlocutory order in the main case.

None of the cases cited in the appellant‘s motion for rehearing indicates a different result, since in each of them there was in fact a valid appeal from a non-final judgment following a certificate of review by the trial court and the grant of an interlocutory appeal by this court, none of which appears in this record.

Motion for rehearing denied.