Selfridge v

Morrison Cafeteria Co., 192 Ga. App. 469, 385 S.E.2d 137, cert. denied, 192 Ga. App. 903, 385 S.E.2d 137 (1989). Notice of cross-appeal properly filed. — In a tenant’s action against the leasing agent of an apartment complex alleging that soot from an apartment heating system caused the tenant to suffer respiratory and lymph node problems, the agent’s jurisdictional challenge to the tenant’s cross-appeal from a trial court ruling that granted the agent’s motion for a directed verdict on the tenant’s claim for punitive damages was unsuccessful; within 15 days of being served with the tenant’s notice of appeal, the tenant filed a notice of cross-appeal stating that the tenant was appealing from the grant of a directed verdict in favor of the agent on the punitive damages issue, and that was the tenant’s sole claim of error on the cross-appeal. Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 640 S.E.2d 620 (2006). Filing 1. In General Filing of notice of appeal serves to supersede judgment, and while on appeal, the trial court is without authority to modify such judgment. Dalton Am. Truck Stop, Inc. v. ADBE Distrib. Co., 146 Ga. App. 8, 245 S.E.2d 346 (1978). Burden is on party desiring to take appeal. — Burden is on party desiring to take appeal to determine when judgment Date: 06/14/13 Time: 12:50:43 5-6-38 is filed in trial court, and to file the party’s notice of appeal within the 30-day period or within the duly authorized extension of the 30-day period. Jordan v. Caldwell, 229 Ga. 343, 191 S.E.2d 530 (1972); Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978). Burden is upon party taking appeal to file within required 30 day period. Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695, 293 S.E.2d 352 (1982). Burden is not satisfied by relying on postal delivery but may be satisfied only by depositing notice of appeal with clerk within appropriate time frame. Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695, 293 S.E.2d 352 (1982). Burden is on appellant to ascertain whether clerk’s office is open for filing of notice of appeal on specific date. Camp v. Hamrick, 139 Ga. App. 61, 228 S.E.2d 288 (1976); Blumenau v. Citizens & S. Nat’l Bank, 139 Ga. App. 188, 228 S.E.2d 302 (1976). Judgment cannot be considered appealable until judgment is actually entered; therefore, when a notice of appeal is filed before entry of judgment, the appeal must be dismissed. Cunningham v. State, 131 Ga. App. 133, 205 S.E.2d 899, rev’d on other grounds, 232 Ga. 416, 207 S.E.2d 48 (1974). Filing of notice of appeal constitutes entry of appeal. — Although notice of appeal is dated prior to entry of judgment intended to be appealed from, it is filing of notice of appeal which constitutes entering an appeal. Anthony v. Anthony, 120 Ga. App. 261, 170 S.E.2d 273 (1969). Second notice of appeal was a nullity when the defendant had already filed a notice of appeal and the initial appeal was pending. Elrod v. State, 222 Ga. App. 704, 475 S.E.2d 710 (1996). What constitutes filing within meaning of section. — Bailey v. Bonaparte, 125 Ga. App. 512, 188 S.E.2d 119 (1972). Best evidence of filing. — Certificate of clerk, entered upon paper when it is filed, is best evidence of filing as required by section. Bailey v. Bonaparte, 125 Ga. App. 512, 188 S.E.2d 119 (1972). 632 Page: 633 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-38 Date: 06/14/13 Time: 12:50:43 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS Proof that notice was in clerk’s office within time prescribed. — When a notice of appeal is alleged to have been in the clerk’s office in time but not filed by that functionary within 30-day period, such proof does not furnish satisfactory compliance with the statutory requirement of filing. Bank of Coweta v. Lee, 153 Ga. App. 33, 264 S.E.2d 526 (1980). Section 9-11-6(b) is inapplicable to time for filing. — Ga. L. 1967, p. 226, §§ 5, 6 (see O.C.G.A. § 9-11-6(b) does not apply to periods of time which are definitely fixed by statute, as time for filing of notice of appeal, as provided by Ga. L. 1968, p. 1072, § 7. Buckhead Doctors’ Bldg., Inc. v. Oxford Fin. Cos., 116 Ga. App. 503, 157 S.E.2d 767 (1967). Day of entry of decision. — When trial court’s denial of the appellant’s motion for judgment notwithstanding the verdict was filed the same day the appellant filed the appellant’s notice of appeal, an appeal was timely. Bank of Tenn. v. Rochester, 165 Ga. App. 1, 299 S.E.2d 109 (1983). Notice timely if filed within 30 days of entry of order. — So long as the notice of appeal is filed within 30 days following the entry of the order granting, overruling, or otherwise finally disposing of the motion for new trial, the appeal is timely. Phelps v. State, 158 Ga. App. 219, 279 S.E.2d 513 (1981); Jessup v. Newman, 191 Ga. App. 772, 383 S.E.2d 136, cert. denied, 191 Ga. App. 922, 383 S.E.2d 136 (1989). Notice of appeal of order denying motions for directed verdict and judgment notwithstanding the verdict was timely. — Commercial vehicle liability insurer’s notice of appeal of an order denying the insurer’s motion for directed verdict and judgment notwithstanding the verdict was timely under O.C.G.A. §§ 5-6-38 and 9-11-50(b) because the notice of appeal was filed within 30 days of the trial court’s order on the insurer’s motion for judgment notwithstanding the verdict, which the insurer filed within 30 days of the entry of the judgment. Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 707 S.E.2d 885 (2011), cert. denied, No. S11C1110, 2011 Ga. LEXIS 580 (Ga. 2011). When application unnecessarily filed pursuant to § 5-6-35. — When the 5-6-38 custodial parent in a child custody habeas corpus proceeding unnecessarily files an application for appeal in accordance with O.C.G.A. § 5-6-35, and the Supreme Court grants the application, and a notice of appeal then is timely filed, the Supreme Court has jurisdiction of the appeal even though no notice of appeal was filed in accordance with O.C.G.A. § 5-6-38 within 30 days from entry of judgment in the trial court. Wright v. Hanson, 248 Ga. 523, 283 S.E.2d 882 (1981). Obvious error in notice of appeal. — As it was clear that the appellant was appealing the entry of judgment in favor of the appellee, the notice of appeal was deemed filed within 30 days of the entry of judgment, despite the fact that the notice erroneously stated that it was from the prior directed verdict. Horton v. Allstate Ins. Co., 171 Ga. App. 707, 320 S.E.2d 761 (1984), overruled on other grounds, Carter v. Banks, 254 Ga. 550, 330 S.E.2d 866 (1985). Improper dismissal of an appeal from an order granting a motion for directed verdict occurred when, even though the notice of appeal was technically defective, final judgment had been rendered in the case and the notice of appeal was sufficient to notify the opposing party that an appeal was being taken. Steele v. Cincinnati Ins. Co., 252 Ga. 58, 311 S.E.2d 470 (1984). Double extensions a nullity. — Since neither the trial court nor the Court of Appeals has jurisdiction to grant more than one extension, or any extension of more than 30 days for the filing of a notice of appeal, the trial court’s two extensions purporting to extend the filing time for more than 30 days were a nullity. Gibson v. State, 207 Ga. App. 491, 428 S.E.2d 421 (1993). Pro se filings. — Because all but three of a pro se defendant’s notices of appeal were untimely, under O.C.G.A. § 5-6-38(a), the appellate court declined to consider the appeal. Owens v. State, 258 Ga. App. 647, 575 S.E.2d 14 (2002). Defendant was not responsible for the defendant’s failure to timely appeal since the trial court failed to advise the defendant of the defendant’s right to counsel for purposes of filing a motion to withdraw 633 Page: 634 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Filing (Cont’d) 1. In General (Cont’d) the defendant’s guilty plea or that the defendant could appeal the denial of the defendant’s motion directly. Murray v. State, 265 Ga. App. 119, 592 S.E.2d 898 (2004). Mother’s challenge to deprivation order. — Because a mother’s challenge to the unappealed February 11, 2004 deprivation order was brought on April 29, 2004, as part of a timely appeal from the April 21, 2004 disposition order entered in the same deprivation proceeding; motions filed by the Department of Children and Family Services requesting that the mother’s appeals be dismissed were denied. In the Interest of S.P., 282 Ga. App. 82, 637 S.E.2d 802 (2006). Transcript production appeal was untimely. — Defendant’s appeal of the denial of the defendant’s post-conviction motion requesting production of a trial transcript at government expense was dismissed as untimely. Coles v. State, 223 Ga. App. 491, 477 S.E.2d 897 (1996). Time of appeal in mandamus action. — Because a prisoner’s early petition for judicial review of the denial of parole was treated as a petition for a writ of mandamus, and using the starting date from the second denial of parole, the prisoner’s habeas petition was timely filed under 28 U.S.C. § 2244(d) in that the petition was filed within ten days of the denial of mandamus under O.C.G.A. § 5-6-38 and within the one year period. Day v. Hall, 528 F.3d 1315 (11th Cir. 2008). 2. Running of Time for Filing Filing of judgment, not its entry on docket starts running. — It is filing of judgment, signed by the judge, with clerk which starts running of applicable 30-day limit and not clerk’s subsequent entry on docket. Lewis & Sheron Enterprises, Inc. v. Great A & P Tea Co., 136 Ga. App. 910, 222 S.E.2d 659 (1975). Judgment must be signed and filed for notice of appeal time to begin running. — O.C.G.A. § 5-6-31 plainly provides that the filing with the clerk of a judgment, signed by the judge, constitutes Date: 06/14/13 Time: 12:50:43 5-6-38 the entry of a judgment within the meaning of the Appellate Practice Act, and as a result the 30-day limit under O.C.G.A. § 5-6-38(a) for filing a notice of appeal does not begin to run until a judgment, signed by the judge, is filed with the clerk; to the extent that Ross v. State, 259 Ga. App. 246 (2003) holds otherwise, it is hereby overruled. Rocha v. State, 287 Ga. App. 446, 651 S.E.2d 781 (2007). Notice to party of entry of judgment is not prerequisite to commencement of 30-day period during which appeal must be filed. Alexander v. Blackmon, 129 Ga. App. 214, 199 S.E.2d 376 (1973). Effect of notice of entry. — Counsel are not entitled to notice of entry of judgment to start 30-day period running. Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978). When judgment is set aside and reentered. — When no notice of entry of judgment was sent by the trial court or by the clerk to the losing party, as required by Code 1933, §§ 24-2620, 24-2621 (see O.C.G.A. § 15-6-21), action may be brought under Ga. L. 1974, p. 1138, § 1 (see O.C.G.A. § 9-11-60(g)) to set aside earlier judgment; upon granting of such motion to set aside and reentry of judgment, 30-day period within which losing party must appeal will begin to run from date of reentry. Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980); Fremichael v. Doe, 221 Ga. App. 698, 472 S.E.2d 440 (1996). When 30th day falls on Saturday. — When 30th day from entering of judgment fell on Saturday, under former Code 1933, § 102-102 (see O.C.G.A. § 1-3-1(d)(3)), notice of appeal could be filed on the following Monday. Thomas v. Allstate Ins. Co., 133 Ga. App. 193, 210 S.E.2d 361 (1974), rev’d on other grounds, Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978). When a defendant voluntarily abandons the defendant’s motion for a new trial and, therefore, no order was entered granting, overruling, or otherwise finally disposing of the motion, notice of appeal must still be filed within 30 days after entry of an appealable judgment. Taylor v. State, 173 Ga. App. 745, 327 S.E.2d 860 (1985). 634 Page: 635 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-38 Date: 06/14/13 Time: 12:50:43 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS Unconditional withdrawal of the new trial motion, by filing of a written order of the court, starts anew the running of the statutory 30-day period of subsection (a) of O.C.G.A. § 5-6-38 in which the appellant can timely file a notice of appeal. Ailion v. Wade, 190 Ga. App. 151, 378 S.E.2d 507 (1989). Deadline not extended by motion to vacate summary judgment. — Party’s motion to vacate a grant of summary judgment for the opposing party did nothing to extend the deadline for filing a notice of appeal from the order granting the summary judgment. Thompson v. GMAC, 194 Ga. App. 526, 391 S.E.2d 2 (1990). Nunc pro tunc entry. — Under O.C.G.A. §§ 5-6-31 and 5-6-38(a), the 30-day time period for filing a notice of appeal did not begin to run until a judgment, signed by the judge, was filed with the clerk; thus, a defendant’s appeal was timely, as the 30 days did not begin to run on the nunc pro tunc date, but on the date the signed judgment was filed. Rocha v. State, 287 Ga. App. 446, 651 S.E.2d 781 (2007). While a nunc pro tunc entry does not extend the statutory period for filing a notice of appeal, case law does not stand for the proposition that a nunc pro tunc entry can shorten the statutory period for filing a notice of appeal provided in O.C.G.A. § 5-6-38(a), which begins to run when judgment is entered in accordance with O.C.G.A. § 5-6-31. Rocha v. State, 287 Ga. App. 446, 651 S.E.2d 781 (2007). Pro se appellant did not have time extension. — Court could not put patient, acting pro se, on a different standard from that of the physician represented by counsel, and when the patient submitted a letter to the court, and erroneously thought the patient had been given an extension of time to file a notice of appeal (as opposed to the hearing transcript), the court properly dismissed the patient’s appeal, filed well after the 30 day deadline, as untimely. Campbell v. McLarnon, 265 Ga. App. 87, 593 S.E.2d 21 (2003). Forfeiture order. — In a civil forfeiture proceeding, the state’s motion to dismiss a claimant’s appeal was denied since 5-6-38 the claimant’s notice of appeal was timely filed within 30 days following the entry of the order of distribution. Weaver v. State, 299 Ga. App. 718, 683 S.E.2d 361 (2009), cert. denied, No. S10C0024, 2010 Ga. LEXIS 128 (Ga. 2010). 3. Premature Filing Appeal from judgment while case is pending on motion for new trial is premature and will be dismissed. Smith v. Smith, 128 Ga. App. 29, 195 S.E.2d 269 (1973). Notice of appeal from judgment filed while motion for new trial is pending is premature and of no validity. Moody v. Moody, 141 Ga. App. 185, 233 S.E.2d 385 (1977); Strauss v. Peachtree Assocs., 156 Ga. App. 536, 275 S.E.2d 90 (1980). Premature filing of a notice of appeal from denial of a motion for a new trial was treated as effectively filed upon entry of the order denying the motion; overruling Staton v. State, 219 Ga. App. 316, 464 S.E.2d 888 (1995). Livingston v. State, 221 Ga. App. 563, 472 S.E.2d 317 (1996). Appeal filed while motion for new trial or for judgment n.o.v. remain pending. — Notice of appeal is prematurely filed when motion for new trial or motion for judgment n.o.v. or both motions remain undisposed of by trial court and appeal must be dismissed; this is true even when both motions are filed pursuant to Ga. L. 1967, p. 226, §§ 22, 43, 48 (see O.C.G.A. § 9-11-50(b)) and one is denied and the other remains pending. Pirkle v. Triplett, 153 Ga. App. 524, 265 S.E.2d 854 (1980). Effect of denial of new trial motion. — Disposition of the motion for new trial obviated all need for an out-of-time appeal, since the defendant had 30 days after entry of that judgment in which to file an ordinary appeal. Nevertheless, while the denial of the new trial motion was the demise of the notice of appeal, filed earlier, as an out-of-time appeal, it served to vitalize it as a timely appeal. As a premature notice of appeal it became effective upon entry of a final judgment. Shirley v. State, 188 Ga. App. 357, 373 S.E.2d 257 (1988). Service of notice by mail prior to filing of original. — It is no ground for 635 Page: 636 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Filing (Cont’d) 3. Premature Filing (Cont’d) dismissal of appeal that service of notice of appeal was made by mail three days before original was filed, or that order was in first instance erroneously dated. Fidelity & Cas. Co. v. Whitehead, 117 Ga. App. 200, 160 S.E.2d 241 (1968). Premature notice of appeal when no prejudice will result. — If notice of appeal is sufficient to advise opposing party that appeal is being taken from specific judgment, and if no prejudice will result to appellee in allowing appeal, then an appeal should not be dismissed merely because the notice is premature. Kenerly v. Yancey, 144 Ga. App. 295, 241 S.E.2d 28 (1977). When premature notice of appeal not dismissed, subsequent notice will be dismissed. — When premature notice of appeal, which was filed before judgment was entered, was not subject to dismissal, subsequently filed notice of appeal was dismissed as redundant. Elwell v. Nesmith, 246 Ga. 430, 271 S.E.2d 827 (1980). Withdrawal of initial notice of appeal until disposition of codefendant’s new-trial motion. — Defendant did not act improperly when the defendant withdrew the defendant’s initial notice of appeal and did not file another until after the disposition of the codefendant tortfeasor’s motion for new trial; defendant’s notice of appeal, filed within 30 days of the denial of her codefendant’s motion for new trial, was therefore timely. Denson v. Kloack, 177 Ga. App. 483, 339 S.E.2d 761 (1986). 4. Late Filing Notice filed 31 days after rendition of judgment is too late. — When judgment appealed from is final, notice of appeal filed 31 days after rendition of judgment is too late and the Court of Appeals is without jurisdiction to entertain appeal. Hull v. Campbell, 130 Ga. App. 637, 204 S.E.2d 312 (1974). When notice of appeal was filed only one day late, court was powerless to deny motion to dismiss filed by appellee. Associated Bldrs. Supply v. Georgia-Pacific Date: 06/14/13 Time: 12:50:43 5-6-38 Corp., 123 Ga. App. 222, 180 S.E.2d 273 (1971). When an order was entered on January 13 and a notice of appeal was filed on February 13, the notice of appeal was not timely as there was no proper extension of time. Patel v. Georgia Power Co., 234 Ga. App. 141, 505 S.E.2d 787 (1998). Notice of appeal filed after expiration of 30-day filing requirement. — When the defendant’s notice of appeal (from an order entered in the county superior court on October 12, 1988) although dated November 9, 1988, was not filed with the clerk of the county superior court until November 21, the appeal is therefore untimely and must be dismissed. Howard v. Wilkes, 191 Ga. App. 239, 382 S.E.2d 434 (1989). Notice of appeal filed within 30 days of the filing of an order allowing an out-of-time appeal is timely. Davis v. State, 192 Ga. App. 47, 383 S.E.2d 615 (1989). Notice not amendable in appellate court nor in trial court after expiration of time for filing. — Notice is not amendable in Court of Appeals nor is the notice amendable in the trial court after expiration of the time for filing prescribed by section. Teppenpaw v. Blalock, 121 Ga. App. 320, 173 S.E.2d 442, aff ’d, 226 Ga. 619, 176 S.E.2d 711 (1970). Application for extension must be within 30-day period. — Trial court has no jurisdiction to grant extension of time for filing notice of appeal when application for an extension is not made before expiration of 30-day period prescribed by section. Morris v. State, 115 Ga. App. 715, 155 S.E.2d 735 (1967). Effect of vacating order denying motion for new trial. — Although the case became ripe for appeal when the trial court denied the motion for new trial, an appeal was timely when the trial court vacated the court’s order denying the motion for new trial. Animashaun v. State, 216 Ga. App. 104, 453 S.E.2d 126 (1995). Vacating judgment and entering new one to give appellant additional time. — After appeal is dismissed for untimely filing of notice of appeal, although allegedly caused by repeated misstatements of clerk, the trial court may 636 Page: 637 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-38 Date: 06/14/13 Time: 12:50:43 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS not vacate the court’s original judgment and enter a new one in order to give the appellant an opportunity to enter a fresh appeal. Cranman Ins. Agency, Inc. v. Wilson Marine Sales & Serv., Inc., 147 Ga. App. 590, 249 S.E.2d 631 (1978). Effect of voluntary dismissal after 30-day period. — Trial court cannot reinstate notice of appeal after plaintiffs have voluntarily dismissed appeal after 30-day period during which appeal is allowed by this section. Albert v. Bryan, 150 Ga. App. 649, 258 S.E.2d 300 (1979). Grant of out-of-time appeals in criminal cases. — Out-of-time appeals are granted when the defendant in a criminal case is not advised of the right of appeal or defense counsel fails to appeal. Birt v. Hopper, 245 Ga. 221, 265 S.E.2d 276 (1980), cert. denied, 449 U.S. 855, 101 S. Ct. 150, 66 L. Ed. 2d 68 (1980). State of Georgia recognizes the right to effective assistance of counsel at trial and on first appeal as of right and has provided for ameliorative relief in the form of an out-of-time appeal. An appellant who is denied effective assistance of counsel in attempting to appeal the appellant’s conviction shall be allowed, if the appellant so desires, to file an out of time appeal to the proper appellate court. Brantley v. State, 190 Ga. App. 642, 379 S.E.2d 627 (1989). When dismissal of a represented criminal defendant’s appeal was appropriate and constitutionally permissible, because it was not timely filed by counsel, the defendant would be entitled to make application for an out-of-time appeal. Rowland v. State, 264 Ga. 872, 452 S.E.2d 756 (1995). Defendant’s motion for an out of time appeal was the functional equivalent of a timely notice of appeal and was treated as such when the document: (1) was filed within the 30-day time limit of O.C.G.A. § 5-6-38 for filing a notice of appeal since the notice was filed within 30 days of the filing date of the order which denied the defendant’s motion for a new trial; (2) was served upon the state; and (3) undeniably evinced the defendant’s intention to seek appellate review of the denial of the motion for a new trial and gave notice to the state of that intent. Cain v. State, 275 Ga. 784, 573 S.E.2d 46 (2002). 5-6-38 Out-of-time appeal is occasionally appropriate when, due to ineffective assistance of counsel, no appeal has been taken. But an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Smith v. State, 268 Ga. App. 748, 602 S.E.2d 839 (2004). While the Court of Appeals of Georgia initially stated that the defendant’s appeal was subject to dismissal based on a failure to timely file a notice of appeal from the trial court’s order denying an out-of-time motion for a new trial and for other relief, as required by O.C.G.A. § 5-6-38, the Appeals Court proceeded to address the defendant’s claims in the interest of finality and to avert a claim of ineffective assistance of counsel because the court granted the defendant’s application for a discretionary appeal. Segura v. State, 280 Ga. App. 685, 634 S.E.2d 858 (2006). Defendant’s reliance upon O.C.G.A. § 17-10-1(f ) and a claim of ineffective assistance of counsel were unavailing as a basis for an out-of-time appeal under O.C.G.A. § 5-6-38(a) because the defendant failed to show entitlement to a hearing on the defendant’s motion for reconsideration, and no order correcting, reducing, or modifying any sentence imposed upon the defendant had been entered. LaBrew v. State, 315 Ga. App. 865, 729 S.E.2d 33 (2012). Motion to review or reconsider filed after 30 days. — When the appellant does not file a motion to review or reconsider until well after the 30 days allowed for notice of appeal, the appeal is not properly and timely filed so as to invoke the jurisdiction of the appellate court, and the appeal must be dismissed. Stonecypher v. State, 168 Ga. App. 507, 308 S.E.2d 639 (1983). Dismissal for late filing. — Defendant’s pro se motion appealing the denial of the defendant’s motion for an out-of-time appeal and/or extraordinary motion for new trial was properly dismissed for untimeliness when the defendant waited until three months after the defendant’s conviction to appeal, the defendant’s appeal was not properly designated, and failed to enumerate any error 637 Page: 638 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Filing (Cont’d) 4. Late Filing (Cont’d) relating to the trial. Davis v. State, 233 Ga. App. 825, 505 S.E.2d 801 (1998). Judgment complained of by parents was a trial court’s finding that the parents’ children were deprived pursuant to O.C.G.A. § 15-11-2(8)(A), and not a later order ruling that the case was closed; the parents’ notice of appeal filed more than three months after the order finding deprivation was untimely, and the appeal was dismissed. In the Interest of I.S., 265 Ga. App. 759, 595 S.E.2d 528 (2004). Because a lessee’s notice of appeal was filed nearly a year after a superior court’s order was entered, it was untimely and thus dismissed. Masters v. Clark, 269 Ga. App. 537, 604 S.E.2d 556 (2004), appeal dismissed, Clark v. Masters, 297 Ga. App. 794, 678 S.E.2d 538 (2009). Because a litigant’s appeal was untimely filed, despite evidence of mistaken delivery beyond the litigant’s control, the superior court properly held that the court lacked discretion to find otherwise; thus, the court did not err in dismissing the appeal. Register v. Elliott, 285 Ga. App. 741, 647 S.E.2d 406 (2007). Motion to dismiss an appeal on grounds that the appealing party failed to timely appeal an order granting summary judgment pursuant to O.C.G.A. § 5-6-38(a) was granted; moreover, the appeal was not taken from the final judgment entered in the case. Patterson v. Bristol Timber Co., 286 Ga. App. 423, 649 S.E.2d 795 (2007). In a breach of contract action, a corporation’s appeal of a default judgment entered against the corporation was dismissed as untimely as the notice of appeal was to have been filed within 30 days of the entry of the default judgment, but the corporation did not file an appeal until seven months later. GMC Group, Inc. v. Harsco Corp., 293 Ga. App. 707, 667 S.E.2d 916 (2008). Time for filing expired. — It was not an abuse of discretion to deny the defendant’s motion for a new trial, requested to facilitate the defendant’s efforts to become a naturalized citizen, because the trial court considered that the defendant’s sen- Date: 06/14/13 Time: 12:50:43 5-6-38 tence for giving a false name to an officer had long since been served, that six years had passed since sentencing, and that the sentence was within the statutory guidelines for misdemeanors; claims the defendant’s guilty plea was not voluntary were of no avail as the defendant failed to move to withdraw the plea or to appeal and the times for doing so had expired. Elias v. State, 272 Ga. App. 506, 613 S.E.2d 157 (2005). Failure of state to file cross-appeal. — When an inmate appealed a habeas court’s original order granting the inmate a new appeal in the inmate’s criminal case, and the state failed to file a cross-appeal from that original order, the state was not allowed to pursue an appeal of the habeas court’s later order on remand granting the inmate a new trial; the merits of the issue were reached and resolved in the habeas court’s earlier final order, and the state’s attempt to challenge those merits in the instant appeal was untimely. Stewart v. Milliken, 277 Ga. 659, 593 S.E.2d 344 (2004). Ineffective assistance of counsel. — Out-of-time appeal was appropriate when, as the result of ineffective assistance of counsel, a timely direct appeal was not taken, and the movant for an out-of-time appeal needed to establish a good and sufficient reason entitling the movant to such an appeal; the defendant’s motion for an out-of-time appeal was properly denied when the defendant claimed that the defendant’s trial counsel did not provide the defendant with a copy of the plea hearing transcript, but also stated that the defendant first tried to obtain a copy of the transcript nearly eight months after the defendant’s guilty plea and conviction, well after the time for a direct appeal had passed. Pearson v. State, 265 Ga. App. 574, 594 S.E.2d 769 (2004). Motion for out-of-time appeal denied. — Denial of the defendant’s motion for an out-of-time appeal from the defendant’s conviction and sentence after the entry of a guilty plea was not an abuse of discretion. Defendant’s claims that the defendant received ineffective assistance of counsel did not show that defense counsel’s conduct frustrated the defendant’s right to appeal, the defendant did not 638 Page: 639 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-38 Date: 06/14/13 Time: 12:50:43 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS have an unqualified right to appeal after the entry of a guilty plea, defendant failed to show how the trial court deviated from the negotiated plea as the record showed that the sentence matched the recommendation, and the defendant was not entitled to expand the record in an attempt to meet the defendant’s burden for an out-of-time appeal. Jackson v. State, 266 Ga. App. 461, 597 S.E.2d 535 (2004). Trial court properly denied a defendant’s motion for an out-of-time direct appeal after the defendant plead guilty. The defendant had not shown that the issues raised could be decided upon facts appearing in the record and did not contend that ineffectiveness of counsel frustrated the defendant’s right to file a timely direct appeal; rather, the defendant asserted that counsel failed to investigate, failed to object to the sufficiency of the accusation, failed to personally negotiate the plea agreement, and failed to file a material document. Smith v. State, 291 Ga. App. 459, 662 S.E.2d 253 (2008). Defendant’s pro se motion for an out-of-time direct appeal was properly denied because the defendant’s claims were meritless. A plea petition and a transcript showed that the defendant’s guilty plea was knowing, intelligent, and voluntary, and by not objecting to the failure to be placed under oath at the guilty plea hearing, the defendant waived the requirement of an oath. Sweeting v. State, 291 Ga. App. 693, 662 S.E.2d 785 (2008). Trial court properly denied a defendant’s motion for an out-of-time appeal. Based on a plea acknowledgment form, counsel’s certification, and the plea colloquy, there was no merit to the defendant’s claims that the defendant had not been informed of the nature of the charges and that the trial court failed to establish a factual basis for the defendant’s guilty plea. Colbert v. State, 284 Ga. 81, 663 S.E.2d 158 (2008). Trial court properly denied a defendant’s motion for an out-of-time appeal. The defendant clearly stated the defendant’s desire to discontinue the services of trial counsel and accept punishment; in addition, although counsel informed the defendant of the appeal deadline after giving the defendant notice of counsel’s 5-6-38 intent to withdraw, the defendant waited 18 years before seeking an out-of-time appeal. Duncan v. State, 297 Ga. App. 499, 677 S.E.2d 691 (2009). Notice of appeal filed within 30 days of order of distribution of damages, which is incidental to and does not affect the validity of the prior judgment, but beyond 30 days after the entry of judgment, cannot invoke the jurisdiction of this court and therefore must be dismissed. Duke v. Metropolitan Atlanta Rapid Transit Auth., 166 Ga. App. 773, 305 S.E.2d 404 (1983). Momentary incapacity of attorney. — Contention that the defendant was denied effective assistance of counsel when the defendant entered the defendant’s guilty plea because the defendant’s attorney suffered from laryngitis was not a sufficient reason for granting an out-of-time appeal, there being no claim of substantive or technical ineffectiveness on the part of counsel. Holbrook v. State, 171 Ga. App. 449, 320 S.E.2d 637 (1984). Effect of attorney’s incompetency in filing. — Although the defendant alleged in the defendant’s motion for an out-of-time appeal that the defendant asked trial counsel to file an appeal from the defendant’s criminal convictions and the defendant’s trial counsel performed inadequately by failing to do so, the trial court did not err in denying the defendant’s motion as the defendant was also required to allege, but did not allege, the issues that the defendant would have raised if the out-of-time appeal were granted and that those issues could be resolved by reference to the facts in the record. White v. State, 261 Ga. App. 866, 584 S.E.2d 5 (2003). Opposing counsel’s consent to late filing. — Without proper and timely filing of notice of appeal, dismissal is required in spite of the fact of consent given by opposing counsel to the late appeal, as parties may not give jurisdiction to a court by consent, express or implied, as to the person or subject matter of an action. Clark v. State, 182 Ga. App. 752, 357 S.E.2d 109 (1987). Motion in arrest of judgment did not toll appeal time. — Defendant’s motion in arrest of judgment did not toll 639 Page: 640 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Filing (Cont’d) 4. Late Filing (Cont’d) the time for filing an appeal of the defendant’s conviction under O.C.G.A. § 5-6-38(a) as the appeal was filed after the term of the trial court in which the defendant was convicted and was untimely under O.C.G.A. § 17-9-61(b); the fact that the trial court was late in sending the defendant written notice of its ruling on the motion in arrest of judgment did not deny the defendant the right to appeal the conviction, which was lost years earlier when the motion in arrest of judgment was untimely filed. Smith v. State, 263 Ga. App. 414, 587 S.E.2d 787 (2003). Court reporter delayed filing transcript. — Appeal was timely as the notice of appeal was filed within 30 days after entry of an appealable judgment as required by O.C.G.A. § 5-6-38(a); although the court reporter inexplicably did not file the transcript with the court until two years later, the defendant did not cause an unreasonable and inexcusable delay in filing the appeal. Johnson v. State, 259 Ga. App. 452, 576 S.E.2d 911 (2003). State prisoner should have been aware of alleged civil rights claims against a court reporter and clerk prior to the dismissal of untimely habeas petition because the prisoner had one year and 30 days from the time the conviction became final under O.C.G.A. § 5-6-38(a) and 28 U.S.C. § 2244(d)(1) to file a habeas petition and the prisoner should have known sometime within the three years until the court received the record that the prisoner’s right to file a habeas petition had been compromised. Further, the prisoner waited more than two years after the court received the record to file the civil rights claims. Salas v. Pierce, No. 08-11129, 2008 U.S. App. LEXIS 22075 (11th Cir. Oct. 23, 2008) (Unpublished). Automatic Extension of Time for Filing 1. In General Section limits motions that extend filing date for notice of appeal to motions for new trial, motions in arrest of Date: 06/14/13 Time: 12:50:43 5-6-38 judgment, or motions notwithstanding verdict. Donnelly v. Stynchcombe, 246 Ga. 118, 269 S.E.2d 10 (1980); Parker v. State, 156 Ga. App. 299, 274 S.E.2d 694 (1980). No automatic extension except as specifically provided. — Date for filing notice of appeal is not automatically extended by proceedings following final judgment except in those instances specifically set forth. This section contains no provision which would permit time for filing notice of appeal to be extended further by filing motion for rehearing after motion for new trial has been overruled when judgment overruling motion is not vacated. Hogan v. State, 118 Ga. App. 398, 163 S.E.2d 889 (1968). (But see Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976)). Appeal is not timely when motion on which the appeal is based is not included among motions enumerated in this section, which automatically extend filing date for notice of appeal. Robinson v. Carswell, 147 Ga. App. 521, 249 S.E.2d 331 (1978). (But see Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976)). ‘‘Has been filed,’’ regarding a delaying motion, means filed within 30 days after entry of judgment. Smith v. Forrester, 145 Ga. App. 281, 243 S.E.2d 575 (1978); Mayo v. State, 148 Ga. App. 213, 251 S.E.2d 80 (1978). Reaffirmance of dismissal of counterclaims does not extend time for filing. — When the time for filing the notice of appeal runs from the date of the voluntary dismissal of the appellees’ counterclaims, the trial court is powerless to extend the time by entering a subsequent order reaffirming the dismissal of the complaint, even had the court intended to do so. Caswell v. Caswell, 157 Ga. App. 710, 278 S.E.2d 452 (1981). 2. What Motions Extend Time for Filing Motion to set aside judgment. — There is at least one motion not enumerated in subsection (a) which has effect of extending time for filing notice of appeal, to wit: a motion to set aside judgment. Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976). (But see MMT Enters., 640 Page: 641 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-38 Date: 06/14/13 Time: 12:50:43 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995)). Motion to set aside, even though based on a nonamendable defect and/or lack of jurisdiction, cannot extend the time for filing a notice of appeal. MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995). Pendency of motion for new trial extends time for filing a notice of appeal. Hughes v. Newell, 152 Ga. App. 618, 263 S.E.2d 505 (1979). Motion to dismiss appeal on ground that notice of appeal was filed more than 30 days after judgment of conviction was without merit, when intervening time was tolled by motion for new trial, the judgment denying which was filed 29 days prior to filing of notice of appeal. Reed v. State, 163 Ga. App. 364, 295 S.E.2d 108 (1982). Motion for new trial must be timely filed to toll time. — When purported motion for new trial was not filed within 30 days as required by former Code 1933, § 70-301 (see O.C.G.A. § 5-5-40), it was thus void and of no effect, and therefore did not toll time for filing notice of appeal under Ga. L. 1968, p. 1072, § 7. Johnson v. State, 227 Ga. 219, 180 S.E.2d 94 (1971). An untimely motion for new trial is void and does not operate to toll the time for filing of the notice of appeal. Wright v. Rhodes, 198 Ga. App. 269, 401 S.E.2d 35 (1990). Motions for modification of sentence and to correct a void and illegal sentence did not toll or extend the time for appeal. Syms v. State, 232 Ga. App. 724, 502 S.E.2d 741 (1998). Application for new trial is made only by filing motion for new trial. Smith v. Forrester, 145 Ga. App. 281, 243 S.E.2d 575, cert. denied, 439 U.S. 863, 99 S. Ct. 185, 58 L. Ed. 2d 172 (1978). ‘‘Arrest of judgment’’ refers to criminal appeals. — Exclusive method by which civil judgments may be attacked is set forth in O.C.G.A. § 9-11-60 and an arrest of judgment is not enumerated therein. Thus, even though O.C.G.A. § 5-6-38 lists ‘‘arrest of judgment’’ as one of the motions which extends the time for filing a notice of appeal, it apparently 5-6-38 refers to criminal appeals. Daniels v. McRae, 180 Ga. App. 732, 350 S.E.2d 317 (1986). Motion to amend findings of fact and conclusions of law is not a motion which extends the time for filing a notice of appeal in a civil case. American Flat Glass Distribs., Inc. v. Michael, 260 Ga. 312, 392 S.E.2d 855 (1990). Petition to set aside probate court determination. — Claimant’s ‘‘petition to set aside’’ a probate court determination that she was not the widow of the decedent was properly treated as a motion for new trial, which tolled the time for appeal to the superior court. Reid v. Reid, 201 Ga. App. 530, 411 S.E.2d 754 (1991). 3. When Time for Filing Not Extended Motion for reconsideration is not one of the three statutory motions which extend time for filing of notice of appeal. Ellis v. Continental Ins. Co., 141 Ga. App. 809, 234 S.E.2d 377 (1977); Lawler v. Georgia Mut. Ins. Co., 156 Ga. App. 265, 276 S.E.2d 646 (1980); Hunter v. Big Canoe Corp., 162 Ga. App. 629, 291 S.E.2d 726 (1982); Littlejohn v. Tower Assocs., 163 Ga. App. 37, 293 S.E.2d 33 (1982), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995); Rockdale County v. Water Rights Comm., Inc., 189 Ga. App. 873, 377 S.E.2d 730 (1989). Motion for reconsideration of order denying summary judgment is not included among those motions enumerated in section which automatically extend filing date for notice of appeal. Adamson v. Adamson, 226 Ga. 719, 177 S.E.2d 241 (1970); Bernath Barrel & Drum Co. v. Ostrum Boiler Serv., Inc., 131 Ga. App. 140, 205 S.E.2d 459 (1974); Presley v. Greene, 137 Ga. App. 788, 225 S.E.2d 60 (1976); Powell v. Darby Bank & Trust Co., 163 Ga. App. 524, 295 S.E.2d 222 (1982). Motion for reconsideration of order granting summary judgment and dismissing the counterclaim, both final and appealable judgments, is not included among those motions enumerated in this section, which automatically extend filing date for notice of appeal. Fowler v. Lewis, 150 Ga. App. 174, 257 S.E.2d 21 (1979); 641 Page: 642 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Automatic Extension of Time for Filing (Cont’d) 3. When Time for Filing Not Extended (Cont’d) Peppers House Restaurant, Inc. v. Siefferman, 156 Ga. App. 114, 274 S.E.2d 43 (1980); Morton v. Morton, 163 Ga. App. 830, 296 S.E.2d 362 (1982). Motion for reconsideration does not extend the time for filing a notice of appeal. Becker v. Fairman, 167 Ga. App. 708, 307 S.E.2d 520 (1983); Guthrie v. D.L. Claborn Buick/Opel, Inc., 180 Ga. App. 128, 348 S.E.2d 523 (1986). Denial of a motion which does not purport to be based either on a nonamendable defect or on a lack of jurisdiction but is simply a request for the trial court to reconsider the court’s decision, is not appealable in the motion’s own right pursuant to O.C.G.A. § 9-11-60(d), and the filing of such a motion does not extend the time for filing a notice of appeal. Dougherty County v. Burt, 168 Ga. App. 166, 308 S.E.2d 395 (1983). When the mother’s parental rights were terminated by order of the juvenile court, her motion for reconsideration, based solely on sufficiency of the evidence, did not extend the time for filing a notice of appeal and it could not be regarded as a reason to vacate or modify the judgment of the court. In re A.C.J., 211 Ga. App. 865, 440 S.E.2d 751 (1994). Motion to amend judgment. — Appeal from a motion to amend judgment of a probate court is not a final judgment and thus, is not an appealable decision within the meaning of O.C.G.A. § 5-3-2(a). Nor will such a motion extend the date for filing a notice of appeal under the plain and literal language of O.C.G.A. § 5-3-20(a). Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993). Motion to withdraw findings of fact and conclusions of law. — W.T.A. Assocs. v. Beamon, 141 Ga. App. 25, 232 S.E.2d 373 (1977). Motion for a new trial as to grant of summary judgment. — Motion for new trial is not proper vehicle for obtaining re-examination of grant of summary judgment and motion so filed has no validity and will not extend filing date of notice of Date: 06/14/13 Time: 12:50:43 5-6-38 appeal. Shine v. Sportservice Corp., 140 Ga. App. 355, 231 S.E.2d 130 (1976); Moore v. First Nat’l Bank, 148 Ga. App. 631, 252 S.E.2d 60 (1979). Time not extended when motion for new trial not proper. — When new-trial motion is not proper vehicle for review of the trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal. Pillow v. Seymour, 255 Ga. 683, 341 S.E.2d 447 (1986). Motion for new trial. — When new-trial motion is not proper vehicle for review of the trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal. Pillow v. Seymour, 255 Ga. 683, 341 S.E.2d 447 (1986). Motion for new trial that was not filed within 30 days as required by O.C.G.A. § 5-5-40 was void, had no effect and did not toll the time for filing a notice of appeal under O.C.G.A. § 5-6-38. Peters v. State, 237 Ga. App. 625, 516 S.E.2d 331 (1999). O.C.G.A. § 5-6-38 requires a trial court order granting, denying, or otherwise finally disposing of a party’s motion for new trial in order to extend the time for filing a notice of appeal more than 30 days after the entry of judgment; a party’s voluntary withdrawal of the party’s motion for new trial, standing alone, is not the statutorily required court order finally disposing of the motion for new trial. Heard v. State, 274 Ga. 196, 552 S.E.2d 818 (2001). Second application for appeal untimely. — Because plaintiff filed a second application for discretionary appeal on June 28, 2010, after withdrawing the plaintiff ’s motion for new trial, the motion was untimely as the motion was filed 61 days after the entry of the judgment on April 28, 2010; pursuant to O.C.G.A. § 5-6-38, the trial court had to dispose of the motion for new trial to extend the time for filing a notice of appeal. Cooper v. Spotts, 309 Ga. App. 361, 710 S.E.2d 159 (2011). Improper motion for new trial. — Alleged motion for new trial which did not contest factual issues or errors contributing to the verdict, but instead challenged only the trial court’s legal conclusions and judgment, was not a proper motion for 642 Page: 643 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-38 Date: 06/14/13 Time: 12:50:43 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS new trial and did not entitle party an automatic stay in filing the party’s notice of appeal. Bank S. Mtg., Inc. v. Starr, 208 Ga. App. 19, 429 S.E.2d 700 (1993). Nunc pro tunc entry does not extend the statutory period for filing a notice of appeal. Bowen v. Clayton County Hosp. Auth., 160 Ga. App. 809, 288 S.E.2d 232 (1982). Motion to set aside. — Although the denial of a motion to set aside is final and appealable, such a motion is not one which will automatically extend the time for a filing notice of appeal on the underlying judgment. Dutton v. Dykes, 159 Ga. App. 48, 283 S.E.2d 28 (1981). (But see Johnson v. Barnes, 237 Ga. 502, 229 S.E.2d 70 (1976)). When the defendant chose to denominate the defendant’s motion as one to vacate and set aside the summary judgment, but the motion was nothing more than a request for a reconsideration of the trial court’s summary judgment award, the motion did not extend the time for the filing of a notice of appeal, and therefore the notice of appeal was not timely filed. Perryman v. Georgia Power Co., 180 Ga. App. 259, 348 S.E.2d 762 (1986), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995). Motion to set aside the judgment, which was not predicated upon a nonamendable defect or a lack of jurisdiction, did not extend the time for the filing of a notice of appeal. Rockdale County v. Water Rights Comm., Inc., 189 Ga. App. 873, 377 S.E.2d 730 (1989). Motion to reinstate an action dismissed as a sanction for failure to comply with the trial court’s order to answer interrogatories timely cannot be considered as one of the three types of motions which toll the running of the time for appeal from the judgment of dismissal. Daniels v. McRae, 180 Ga. App. 732, 350 S.E.2d 317 (1986). Motion for rehearing order denying motion coram nobis. — Motion for a rehearing of order denying motion coram nobis and other motions of this type is not one of the three motions which automatically toll 30-day filing period. Allanson v. State, 239 Ga. 154, 236 S.E.2d 348 (1977). 5-6-38 Modification of summary judgment order. — Granting of summary judgment is an appealable order under Ga. L. 1975, p. 757, § 3 (see O.C.G.A. § 9-11-56(h)) and a modification of that order does not automatically extend filing date for notice of appeal under Ga. L. 1968, p. 1072, § 7. Wilson v. Coite Somers Co., 138 Ga. App. 455, 226 S.E.2d 277 (1976). Demand for jury trial subsequent to judgment of trial court in suit to quiet title cannot be regarded as one of the enumerated ways specified in section to toll 30-day period in which notice of appeal must be filed from final judgment. Thornton v. Reb Properties, Inc., 237 Ga. 59, 226 S.E.2d 741 (1976). Motion to vacate and set aside final judgment is not a motion included among those motions enumerated in this section. Williams v. Keebler, 222 Ga. 437, 150 S.E.2d 674, answer conformed to 114 Ga. App. 332, 151 S.E.2d 483 (1966); Shannon Co. v. Heneveld, 135 Ga. App. 252, 217 S.E.2d 424, rev’d on other grounds, 238 Ga. 635, 221 S.E.2d 200 (1975); Lawler v. Georgia Mut. Ins. Co., 156 Ga. App. 265, 276 S.E.2d 646 (1980). Motion to vacate and set aside final judgment does not extend the time for filing a notice of appeal. Law Offices of Johnson & Robinson v. Fortson, 175 Ga. App. 706, 334 S.E.2d 33 (1985), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995). Motion to strike a portion of the jury verdict and the judgment is not one of the three statutory motions which extend the time for filing a notice of appeal, and the appellant’s failure to follow the procedures for discretionary appeal require the appeal’s dismissal. Jones v. Robertson, 191 Ga. App. 537, 382 S.E.2d 382 (1989). Motion to vacate and/or amend an order of dismissal is not one of the three statutory motions which extend the time of filing of the notice of appeal. Mathis v. Hegwood, 169 Ga. App. 547, 314 S.E.2d 122, cert. denied, 469 U.S. 830, 105 S. Ct. 115, 83 L. Ed. 2d 58 (1984), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995). 643 Page: 644 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Automatic Extension of Time for Filing (Cont’d) 3. When Time for Filing Not Extended (Cont’d) Attempt to amend notice of appeal, which was timely as to summary judgment in one case, to incorporate previously unfiled notice of appeal in a companion case was untimely when summary judgment in companion case had been granted 75 days earlier. Newton v. K.B. Property Mgt. of Ga., Inc., 166 Ga. App. 901, 306 S.E.2d 5 (1983). Lack of notice of entry of judgment does not extend time for filing a notice of appeal. Atlantic-Canadian Corp. v. Hammer, Siler, George Assocs., 167 Ga. App. 257, 306 S.E.2d 22 (1983). Supersedeas is not among exceptions which automatically extend filing date for notices of appeal. Wilson v. McQueen, 224 Ga. 420, 162 S.E.2d 313 (1968), overruled on other grounds, Austin v. Carter, 248 Ga. 776, 285 S.E.2d 542 (1982). Jurisdiction of probate court in county without more than 100,000 persons. — Probate court of county that did not have a population of more than 100,000 persons according to either the 1980 or 1990 decennial census lacked authority to entertain a motion for new trial, and any such motion therefore being without legal force and effect before the county probate court, would not serve to extend the time for filing a notice of appeal under either subsection (a) of O.C.G.A. § 5-6-38 or O.C.G.A. § 5-3-20. Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993). Construction of ‘‘holidays.’’ — Because the plain language of O.C.G.A. § 1-3-1(a) and § 5-6-38(a) make no provisions for extending the filing time for notices of appeal to compensate for county declared holidays and O.C.G.A. § 1-4-2 limits religious holidays to Sundays, Good Friday did not constitute a holiday for purposes of extending the filing date. In re Estate of Dasher, 259 Ga. App. 201, 575 S.E.2d 921 (2002). Cross Appeals Cross appeal not required. — Ruling that becomes material to an enumeration Date: 06/14/13 Time: 12:50:43 5-6-38 of error urged by an appellant may be considered by the appellate court without the necessity of a cross-appeal. Dunn v. Five Star Dodge-Jeep-Eagle-Mazda, Inc., 245 Ga. App. 378, 537 S.E.2d 782 (2000). Because the trial court had entered an order denying several of the appellee’s motions, including summary judgment motions, after the appellants filed their notice of appeal from a contempt order, the appellate court had jurisdiction to consider the appellee’s cross-appeal pursuant to O.C.G.A. § 5-6-38(a); the appellee’s cross-appeal was preceded by the trial court’s denial order and, therefore, it could be considered on appeal. Rhone v. Bolden, 270 Ga. App. 712, 608 S.E.2d 22 (2004). By appellee. — Appellee may institute a cross-appeal against a party other than an appellant. Centennial Ins. Co. v. Sandner, Inc., 259 Ga. 317, 380 S.E.2d 704 (1989). Cross appeal need not be grounded upon same ruling as main appeal. — Section expressly declares that appellee may raise all errors or rulings on cross appeal, and it need not be grounded upon same ruling as main appeal. Nager v. Lad’n Dad Slacks, 148 Ga. App. 401, 251 S.E.2d 330 (1978). Valid appeal must be perfected before cross appeal can be perfected. — Valid appeal from judgment must be perfected in accordance with this article so as to give appellate court jurisdiction, before cross appeal by any other party to case can be perfected so as to give appellate court jurisdiction of cross appeal. Wood v. Atkinson, 229 Ga. 179, 190 S.E.2d 46 (1972); Ewing Holding Corp. v. Egan-Stanley Invs., Inc., 154 Ga. App. 493, 268 S.E.2d 733 (1980). Cross-appeal to appealable order. — Appeal which, standing alone, would be subject to discretionary appeal procedures, is appealable as a matter of right if the appeal is classifiable as a cross-appeal to an appealable order. Buschel v. Kysor/ Warren, 213 Ga. App. 91, 444 S.E.2d 105 (1994). Independent appeal authorized by O.C.G.A. § 5-6-38 was not the direct appeal to a discovery ruling attempted by a codefendant in a breach of contract action, 644 Page: 645 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-38 Date: 06/14/13 Time: 12:50:43 GA RV 13 RV 4(T4-6) - EP CERTIORARI AND APPEALS TO APPELLATE COURTS but was an application for discretionary review of a timely certified interlocutory discovery order, and failure to properly perfect this appeal resulted in dismissal of the appeal. Reliance Ins. Co. v. Cobb County, 235 Ga. App. 685, 510 S.E.2d 129 (1998). Cross appeal from nonfinal judgment permissible though main appeal is from judgment disposing of only one party and case remains pending in court below. Garrett v. Heisler, 149 Ga. App. 240, 253 S.E.2d 863 (1979). Codefendant in a breach of contract action was an ‘‘appellee’’ within the meaning of O.C.G.A. § 5-6-38, and was entitled to file a notice of cross-appeal within 15 days from service of the notice of appeal of a pre-final judgment discovery ruling by the other codefendant. Reliance Ins. Co. v. Cobb County, 235 Ga. App. 685, 510 S.E.2d 129 (1998). Cross appeal may concern motion to dismiss while main appeal concerns judgment dismissing party. — Ga. L. 1968, p. 1072, § 7 and Ga. L. 1973, p. 303, § 1 (see O.C.G.A. §§ 5-6-37 and 5-6-38) allow appellee to file, as a matter of right, a cross appeal as to the trial court’s judgment denying the appellee’s motion to dismiss when the appellant appeals the trial court’s judgment dismissing another party from the case. Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676 (1978). Because challengers who opposed a decision of the Coastal Marshlands Protection Committee granting a permit to a developer failed to comply with O.C.G.A. § 50-13-19(b), the trial court lacked jurisdiction to consider their untimely petition; nevertheless, because the committee and the developer filed timely petitions for review in the trial court, and then appealed to the court of appeals, the challengers’ appeals were properly before the court of appeals as cross-appeals filed pursuant to O.C.G.A. § 5-6-38(a). Coastal Marshlands Prot. Comm. v. Ctr. for a Sustainable Coast, 286 Ga. App. 518, 649 S.E.2d 619 (2007), aff ’d, 284 Ga. 736, 670 S.E.2d 429 (2008). Cross-appeal to a cross-appeal is not contemplated by O.C.G.A. § 5-6-38(a). Jones v. White, 311 Ga. App. 5-6-38 822, 717 S.E.2d 322 (2011). Although entitled a ‘‘cross-appeal,’’ when defendant’s appeal was actually an attempted independent appeal from the trial court’s subsequent award of post-judgment interest to the plaintiff, the defendant’s appeal was not subject to dismissal under O.C.G.A. § 5-6-38 for not having been filed within 15 days of service of plaintiff ’s notice of appeal. Beavers v. Gilstrap, 210 Ga. App. 46, 435 S.E.2d 267 (1993). Notice of cross appeal required. — Appellee may not present enumerations of error concerning rulings adverse to it without filing a notice of cross appeal. Chester v. Georgia Mut. Ins. Co., 165 Ga. App. 783, 302 S.E.2d 594 (1983). When the appellee has filed briefs in the appellate court in support of a cross appeal attacking the grant of summary judgment to appellants but no such cross appeal has been docketed in the appellate court, the correctness of the trial court’s grant of summary judgment to appellants is not before the appellate court and will not be considered. Chester v. Georgia Mut. Ins. Co., 165 Ga. App. 783, 302 S.E.2d 594 (1983). Notice held untimely. — When cross-appellants contended that because appellant in August 1986 successfully moved the trial court to allow the appellant to amend the appellant’s notice of appeal merely to change the designated parts of the record necessary to the appellant’s appeal and thus to delete certain portions of the record, this constituted a novation or extension of the appellant’s original notice of appeal of April 11, 1986, it was held that the filing of the cross appeal in the Supreme Court on August 25 must be related to the original notice of appeal filed by appellant April 11 and could draw life from a mere modification of the notice of appeal reducing the amount of record as originally noticed in the original appeal. It followed that the filing of the notice of cross appeal on August 25, 1986, was far beyond the 15 days allowed for the filing of such a cross appeal. Mobley v. Coast House, Ltd., 182 Ga. App. 305, 355 S.E.2d 686 (1987). When a habeas corpus petitioner cross-appealed the trial court’s decision 645 Page: 646 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Cross Appeals (Cont’d) after the warden appealed the decisiont, the petitioner’s cross-appeal was timely because the cross-appeal was filed within the 15 days allowed by O.C.G.A. § 5-6-38(a) plus the 3-day extension provided in O.C.G.A. § 9-11-6(e) as the warden’s notice of appeal was mailed to the petitioner. Head v. Thomason, 276 Ga. 434, 578 S.E.2d 426, cert. denied, 540 U.S. 957, 124 S. Ct. 409, 157 L. Ed. 2d 294 (2003). Failure to file notice of cross appeal makes review of brief unnecessary. — When appellee denominates one section of the appellee’s brief a ‘‘cross appeal,’’ but the record reveals that no notice of cross appeal was ever filed, the Court of Appeals need not address this contention in view of subsections (a) and (b) of O.C.G.A. § 5-6-38. Life Ins.