Newton v. K. B. Property Management of Georgia, Inc.
166 Ga. App. 901
Ga. Ct. App.
1983
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CALE v. BYRDWELL

66213

Court of Appeals of Georgia

JUNE 15, 1983

166 Ga. App. 901

BIRDSONG, Judge.

BIRDSONG, Judge.

This is an attempt to appeal a contempt order in an alimony action, which by law is subject to application for discretionary appeal (OCGA § 5-6-35 (Code Ann. § 6-701.1)) to the Supreme Court (Georgia Constitution, Art. VI, Sec. II, Par. IV (Code Ann. § 2-2804)). In fact, the appellant did file application for discretionary appeal of this case to the Supreme Court, and was denied.

Appellant‘s contention on simultaneous direct appeal to this court is that the case does not involve alimony but involves “failure to transfer property arising from a jury directed property settlement.” However, the jury specifically designated this property transfer as alimony in a divorce case. The Court of Appeals does not have jurisdiction of this case (Georgia Constitution, Art. VI, Sec. II, Par. IV).

Appeal dismissed. Shulman, C. J., and McMurray, P. J., concur.

DECIDED JUNE 15, 1983.

Jon W. McClure, for appellant.

Glenda W. Hardigg, for appellee.

NEWTON et al. v. K. B. PROPERTY MANAGEMENT OF GEORGIA, INC. et al.

65691

Court of Appeals of Georgia

MAY 13, 1983

REHEARING DENIED JUNE 16, 1983.

166 Ga. App. 901

BIRDSONG, Judge.

BIRDSONG, Judge.

This appeal, as does its companion (Case No. 65720), involves a complicated set of complaints, counter-claims, third-party complaints and cross-actions, and a multitude of parties in two related lawsuits. The appeal enumerates as error the grant of summary judgment to two defendants, Barton & Ludwig and Fickling & Walker.

The record shows that summary judgments were granted in the case sub judice to Barton & Ludwig and Fickling & Walker in Fulton Civil Action No. 67346 on July 2, 1982. Summary judgment was granted in the companion case to Kosco, Inc., in Fulton Civil Action No. 71539 on August 6, 1982. The appellants in the companion case filed notice of appeal following the August 6 summary judgment to Kosco, Inc., on September 7, 1982, the Tuesday after Labor Day. But appellants in the instant case did not file notice of appeal of the July 2 summary judgments to Barton & Ludwig and Fickling & Walker in Case No. 67346 until September 15, 1982, by filing an “Amended Notice of Appeal,” thereby seeking to incorporate in the September 7 notice of appeal a notice of appeal to the July 2 judgment. The parties in both appeals have attempted to consolidate the record in the two cases and have sought to have them dealt with as a single appeal “as the issues are virtually identical.”

In their brief, appellants Newton and Kaplan state: “By agreement of the parties, there is no issue concerning timeliness of the appeal.” The appellees Barton & Ludwig and Fickling & Walker apparently agree, since they proceed to argue the correctness of the summary judgment grant in thirty-five pages of brief, covering very complicated issues.

This court has no jurisdiction to entertain an appeal filed more than 30 days after the entry of the judgment appealed from, where no proper extension of time for filing has been granted. OCGA §§ 5-6-38, 5-6-39 (Code Ann. §§ 6-803, 6-804). Jurisdiction of this court is conferred by the Constitution of this state and by statute. ; . Our jurisdiction is given by law and cannot be conferred by consent or waiver of the parties. ; . The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction of this court. . Whether the parties raise the question — or agree that none exists — it is our duty to inquire into our jurisdiction. . We have done so. Notice of appeal of the grants of summary judgment to Barton & Ludwig and Fickling & Walker was not filed until 75 days after entry of the summary judgment below. Accordingly, this appeal is dismissed.

Appeal dismissed. Shulman, C. J., and McMurray, P. J. concur.

DECIDED MAY 13, 1983 —
REHEARING DENIED JUNE 16, 1983.

Andrew R. Kirschner, for appellants.

John C. Porter, Jr., Harmon W. Caldwell, Jr., for appellees.

ON MOTION FOR REHEARING.

On motion to have this appeal reinstated, appellants Newton and Kaplan assert in essence that the July 2, 1982 summary judgment in this case was appealable 75 days later because the trial court omitted to issue an order of appealability (OCGA § 9-11-54 (b) (Code Ann. § 81A-154); ). Appellants contend that until the trial court had done so, the appellants could not or did not have to appeal the summary judgment. But it is well established that the trial court did not have to issue a certificate of appealability in this case. Where a summary judgment is granted in a case as to one or more but fewer than all the claims or parties, the losing party may without certification directly appeal within 30 days of the judgment (OCGA § 9-11-56 (h) (Code Ann. § 81A-156); ; ); or he may appeal after rendition of final judgment in the case ().

Appellants do not contend, and the record does not any where show, that they had no notice of the July 2 summary judgment (see, e. g., ). Instead, they contend they should be allowed to appeal the July 2 judgment 45 days late because they had no notice of the writ of fieri facias which was issued upon it. Upon issuance of the fi. fa. on August 12, the trial court stated there was “no reason for further delay in ordering a writ of Fieri Facias.” But without an express direction for entry of the judgment as final, it was not final and lacked res judicata effect (); and the execution of the fi. fa. upon it would be at the appellees’ peril so long as the appellants could appeal the judgment at the end of the proceedings. . A fi. fa. is not an order of final judgment tolling the time for appeal in any case. See OCGA §§ 9-11-54 (b), 5-6-34 (b) (Code Ann. §§ 81A-154, 6-701). Moreover, as regards a grant of summary judgment, the later issuance of a fi. fa., with or without notice, cannot possibly act as a “quasi” certificate of finality so as to extend the time for appeal.

Moreover, on motion for rehearing, the parties continue to insist that our jurisdiction can be conferred by consent or waiver of the parties. This cannot be done.

Motion for rehearing denied.