422 S.E.2d 20 | Ga. Ct. App. | 1992
Appellees, husband and wife, filed a medical malpractice complaint against appellants, a hospital and three physicians, on January 7, 1991. The complaint alleged acts of malpractice which occurred during the hospitalization of appellee husband during the months of January and February 1989. A medical expert’s affidavit was not attached to the complaint; however, the complaint stated that it was filed within ten days of the running of the statute of limitation and that the affidavit would be filed within 45 days pursuant to OCGA § 9-11-9.1 (b). No affidavit was ever filed, and on March 19, 1991, the trial court granted appellants’ motion to dismiss the complaint, dismissing the complaint with prejudice. On April 8, 1991, appellees filed a motion for reconsideration with the trial court, arguing that the dismissal should have been without prejudice. While the motion for reconsideration was pending in the trial court, appellees filed a notice of appeal to this court, on April 18, 1991. Thereafter, on April 24, the trial court, without knowledge of the notice of appeal, ruled on the motion for reconsideration, by amending its prior order to change the dismissal with prejudice to a dismissal without prejudice. Appellees
1. Appellants argue that the trial court was without jurisdiction to enter its order on the motion for reconsideration after the notice of appeal had been filed. The trial court concluded in its order denying appellants’ motions for summary judgment that the first dismissal should have been without prejudice and that the court had authority to correct its judgment even after the notice of appeal had been filed. We disagree. “[T]he filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect. [Cits.]” Brown v. Wilson Chevrolet-Olds, 150 Ga. App. 525, 531 (2) (258 SE2d 139) (1979).
2. Our decision in Division 1 makes it unnecessary to address appellants’ remaining enumerations of error.
Judgment reversed.