Title 5 — Appeal And Error
0 chapters · 53 sections in this title.
O.C.G.A. § 5-3-2 Right to appeal from probate courts; exception
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(a) An appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator. (b) Notwithstanding subsection (a) of this Code section, no appeal from the probate court to the superior court shall lie from any civi…
O.C.G.A. § 5-3-20 Jabaley v
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Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993). Executrix’s appeal from a probate court’s decision was untimely and a motion to reconsider, which actually was a motion to amend, did not extend the time for appeal, and, under O.C.G.A. §§ 5-3-2 and 5-3-20, the executrix should ha…
O.C.G.A. § 5-3-21 Notice of appeal; form; service
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(a) An appeal to the superior court may be taken by filing a notice of appeal with the court, agency, or other tribunal appealed from. No particular form shall be necessary for the notice of appeal, but the following is suggested: (NAME OF INFERIOR JUDICATORY) STATE OF GEORGIA v.…
O.C.G.A. § 5-3-23 Signature on bond of attorney at law or in fact
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If an appeal is entered by the attorney at law or in fact, he may sign the name of the principal to the appeal bond, if required, and the principal shall be bound thereby as though he had signed it himself. (Orig. Code 1863, § 3537; Code 1868, § 3560; Code 1873, § 3617; Code 1882…
O.C.G.A. § 5-3-27 Amendments to cure defects
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No appeal shall be dismissed because of any defect in the notice of appeal, bond, or affidavit of indigence or because of the failure of the lower court, agency, or other tribunal to transmit the pleadings or other record; but the superior court shall at any time permit such amen…
O.C.G.A. § 5-3-29 De novo investigation
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An appeal to the superior court in any case where not otherwise provided by law is a de novo investigation. It brings up the whole record from the court below; and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either pa…
O.C.G.A. § 5-3-31 Time for filing appeals
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Notice of appeal; form; service. Payment of costs prerequisite to appeal; affidavit of indigence; dismissal for nonpayment following court order; supersedeas bond. Signature on bond of attorney at law or in fact. Exemption of executors, administrators, and trustees from paying co…
O.C.G.A. § 5-3-7 Appeal suspends judgment; effect of dismissal or withdrawal of appeal
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An appeal shall suspend but not vacate a judgment and, if dismissed or withdrawn, the rights of all the parties shall be the same as if no appeal had been entered. (Orig. Code 1863, § 3549; Code 1868, § 3572; Code 1873, § 3628; Code 1882, § 3628; Civil Code 1895, § 4470; Civil Co…
O.C.G.A. § 5-3-8 Requirement of consent to withdrawal of appeal
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After an appeal has been entered, no person shall be allowed to withdraw the appeal without the consent of the adverse party. (Laws 1799, Cobb’s 1851 Digest, p. 495; Code 1863, § 3550; Code 1868, § 3573; Code 1873, § 3629; Code 1882, § 3629; Civil Code 1895, § 4471; Civil Code 19…
O.C.G.A. § 5-4-1 When certiorari shall lie; exception
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(a) The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers, including the judge of the probate court, except in cases touching the probate of wills, granting letters testamentary, and of administ…
O.C.G.A. § 5-4-10 Hudson v
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Watkins, 225 Ga. App. 455, 484 S.E.2d 24 (1997). Bond by amendment was invalid. — Trial court erred in granting a petition for a writ of certiorari as the petition was not accompanied by a bond as required by O.C.G.A. § 5-4-5(a), the hearing officer originally hearing the dispute…
O.C.G.A. § 5-4-11 Conduct of hearing generally; trial by jury
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(a) Certiorari cases shall be heard by the court without a jury, in chambers or in open court, upon reasonable notice to the parties, at any time that the matters may be ready for hearing. (b) Where a traverse to the answer has been filed and jury trial demanded, the matter may b…
O.C.G.A. § 5-4-15 Requirement of new trial when writ not answered
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In all cases pending in the superior courts upon certiorari from any inferior judicatory or any person exercising judicial powers, if the judge or other officer before whom the case was tried dies before answering the writ of certiorari or answers that he cannot or does not remem…
O.C.G.A. § 5-4-17 Recovery of costs by defendant generally
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If the certiorari is dismissed and a final decision is made in the case by the superior court, the defendant in certiorari may have judgment entered in the superior court against the plaintiff and his security for the sum recovered by him, together with the costs in the superior …
O.C.G.A. § 5-4-18 Recovery of damages for frivolous certiorari
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If it shall be made to appear that a certiorari was frivolous and was applied for without good cause or only for the purpose of delay, the presiding judge before whom the writ was heard, on motion of the opposite party, may order that damages totaling not more than 20 percent of …
O.C.G.A. § 5-4-2 Petition for certiorari to probate judge generally
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When either party in any case in any probate court lodges objections to any proceeding or decision in the case, affecting the real merits of the case, the party making the same shall offer the objections in writing, which shall be signed by himself or his attorney and, if the sam…
O.C.G.A. § 5-4-3 Petition for certiorari to inferior judicatories generally
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When either party in any case in any inferior judicatory or before any person exercising judicial powers is dissatisfied with the decision or judgment in the case, the party may apply for and obtain a writ of certiorari by petition to the superior court for the county in which th…
O.C.G.A. § 5-5-20 Verdict contrary to evidence and justice
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In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury. (Laws 1799, Cobb’s 1851 Digest, p. 503; Code 1863, § 3637; Code 1868, § 3662; Code 1873, § 3713; Code 1882…
O.C.G.A. § 5-5-21 Verdict against weight of evidence
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The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding. (Ga. L. 1853-54, p. …
O.C.G.A. § 5-5-22 Cooper v
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State, 287 Ga. 861, 700 S.E.2d 593 (2010), overruled on other grounds, Smith v. State, 290 Ga. 768, 723 S.E.2d 915 (2012). Expert testimony. — Trial court erred in admitting, over objection, the testimony of the parents’ expert witness about the standard of care in the day-care i…
O.C.G.A. § 5-5-23 Newly discovered evidence
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A new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court w…
O.C.G.A. § 5-5-24 King Cotton, Ltd
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v. Powers, 190 Ga. App. 845, 380 S.E.2d 481 (1989). ‘‘Deadly force’’ instruction given when police prosecuted. — In a prosecution against police officers for manslaughter, arising out of the shooting of the victim in a parking lot following a report that the victim had threatened…
O.C.G.A. § 5-5-25 Whitaker v
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State, 276 Ga. App. 226, 622 S.E.2d 916 (2005). Trial court committed reversible error 373 Page: 374 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 GA RV 13 RV 4(T4-6) - EP Application (Cont’d) 3. Grounds Warranting New Trial (Cont’d) when the court d…
O.C.G.A. § 5-5-42 Form for motion for new trial
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(a) The form for motion for new trial in civil cases prescribed in subsection (b) of this Code section shall be sufficient, but any other form substantially complying therewith shall also be sufficient. 445 Page: 446 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0…
O.C.G.A. § 5-5-44 Service of rule nisi; filing and recordation of motion
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In all motions for a new trial the opposite party shall be served with a copy of the rule nisi unless such copy is waived. The clerks of the courts shall not be required, except by order of the presiding judge, to enter upon the minutes of the courts motions for new trial in case…
O.C.G.A. § 5-5-45 Amendment of rule nisi
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A rule nisi for a new trial may be amended by adding new grounds not taken at the time the motion was filed. (Orig. Code 1863, § 3432; Code 1868, § 3452; Code 1873, § 3503; Code 1882, § 3503; Civil Code 1895, § 5121; Civil Code 1910, § 5705; Code 1933, § 70-309.)
O.C.G.A. § 5-5-48 Time of new trial generally
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When a new trial has been granted by the court, the case shall be placed on the docket for trial as though no trial had been had, subject to the rules for continuances provided in this Code. (Orig. Code 1863, § 3646; Code 1868, § 3671; Code 1873, § 3722; Code 1882, § 3722; 454 Pa…
O.C.G.A. § 5-5-49 Trial of cases returned for new trial by appellate courts
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(a) A case decided by the Supreme Court or Court of Appeals which is not finally disposed of by the decision shall stand for further hearing at the term next ensuing after the decision by the appellate court unless the lower court is in session when the decision is made, in which…
O.C.G.A. § 5-6-1 Appearance before court of interested third parties
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When a case is set for a hearing before the Supreme Court or the Court of Appeals and there are parties besides the plaintiffs and defendants, whether shown by the record or not, who have a direct interest in its result, upon the interest being made to appear the court shall allo…
O.C.G.A. § 5-6-10 Transmittal of remittitur to lower court generally
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The decision of the appellate court and any direction awarded in the case shall be certified by the clerk to the court below, under the seal of the court. The decision and direction shall be respected and carried into full effect in good faith by the court below. The remittitur s…
O.C.G.A. § 5-6-11 Issuance of remittitur in cases involving death penalty
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In all cases where the Supreme Court of Georgia has affirmed the imposition of the death penalty in a case or has affirmed the denial of a petition for a writ of habeas corpus in any case in which the death penalty has been imposed, the remittitur shall not issue from that court …
O.C.G.A. § 5-6-13 Granting of supersedeas in cases of contempt
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(a) A judge of any trial court or tribunal having the power to adjudge and punish for contempt shall grant to any person convicted of or adjudged to be in contempt of court a supersedeas upon application and compliance with the provisions of law as to appeal and certiorari, where…
O.C.G.A. § 5-6-14 Execution of extraordinary orders of Supreme Court
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When judgments are rendered in the Supreme Court in injunction or other extraordinary cases, the judges of the superior courts may give immediate effect to such judgments. (Ga. L. 1870, p. 405, § 5; Code 1873, § 3215; Code 1882, § 3215; Civil Code 1895, § 5599; Civil Code 1910, §…
O.C.G.A. § 5-6-15 Certiorari from Supreme Court to Court of Appeals
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The writ of certiorari shall lie from the Supreme Court to the Court of Appeals as provided by Article VI, Section VI, Paragraph V of the Constitution of this state. (Orig. Code 1863, § 3957; Code 1868, § 3977; Code 1873, § 4049; Code 1882, § 4049; Civil Code 1895, § 4634; Civil …
O.C.G.A. § 5-6-2 Disposition of transcript in appellate court
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The transcript of the record shall not be recorded by the clerk of the appellate court but shall be carefully labeled and filed so as to be found easily when needed. (Laws 1847, Cobb’s 1851 Digest, p. 454; Code 1863, § 4185; Code 1868, § 4224; Code 1873, § 4289; Code 1882, § 4289…
O.C.G.A. § 5-6-30 Purpose of article; construction
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It is the intention of this article to provide a procedure for taking cases to the Supreme Court and the Court of Appeals, as authorized in Article VI, Sections V and VI of the Constitution of this state; to that end, this article shall be liberally construed so as to bring about…
O.C.G.A. § 5-6-31 Entry of judgment defined
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The filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of this article. (Ga. L. 1965, p. 18, § 18B.)
O.C.G.A. § 5-6-33 Right of appeal generally
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(a)(1) Either party in any civil case and the defendant in any criminal proceeding in the superior, state, or city courts may appeal from any sentence, judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers. (2) Either party in any civ…
O.C.G.A. § 5-6-34 Brown v
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City of Marietta, 214 Ga. App. 840, 449 S.E.2d 540 (1994). Entry of judgment question not appealable. — There is no authority for the trial court to grant an appellant the right to file an ‘‘extraordinary appeal’’ to determine whether or not judgment should be entered in a case. …
O.C.G.A. § 5-6-35 Bullock v
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Sand, 260 Ga. App. 874, 581 S.E.2d 333 (2003). Exception to finality rule. — O.C.G.A. § 9-11-56(h) is an exception to the finality rule which is for the benefit of the losing party, and when the losing party appeals after the rendition of the final judgment, the grant of summary …
O.C.G.A. § 5-6-38 Selfridge v
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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 cau…
O.C.G.A. § 5-6-40 Enumeration of errors
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The appellant and cross appellant shall file with the clerk of the appellate court, at such time as may be prescribed by its rules, an enumeration of the errors which shall set out separately each error relied upon. The enumeration shall be concise and need not set out or refer t…
O.C.G.A. § 5-6-41 Cox v
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State, 242 Ga. App. 334, 528 S.E.2d 871 (2000). Jury instruction corrected by a trial transcript amended to correct a typographical error gave an accurate statement of the applicable law and was not error. Clanton v. State, 208 Ga. App. 669, 431 S.E.2d 453 (1993). Motion to perfe…
O.C.G.A. § 5-6-46 Nelson v
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Haugabrook, 282 Ga. App. 399, 638 S.E.2d 840 (2006). Hearing not required. — Trial court was not required to conduct an oral hearing before granting a motion to require a supersedeas bond under the statute. Rapps v. Cooke, 234 Ga. App. 131, 505 S.E.2d 566 (1998). Appellant’s righ…
O.C.G.A. § 5-6-5 Entry of judgment for costs on reversal
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If there is a judgment of reversal, the appellant shall be entitled to a judgment for the amount of the costs in the appellate court against the appellee as soon as the remittitur is returned to the court below. (Laws 1845, Cobb’s 1851 Digest, p. 251; Code 1863, § 4186; Code 1868…
O.C.G.A. § 5-6-50 Procedure provided by article supersedes former appellate procedure
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The procedure provided in this article shall serve all purposes which a bill of exceptions or writ of error has served in the past; and, where under any law of force in this state provision is made for the taking of writs of error or bills of exception, the procedure prescribed i…
O.C.G.A. § 5-6-51 Forms
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The following suggested forms are declared to be sufficient, but any other form substantially complying therewith shall also be sufficient: 754 Page: 755 Job Path: @psc3912/cville_data1/stcodes/ga/lexis/ep_rv_04_txt 0000 41826-12 5-6-51 Date: 06/14/13 Time: 12:58:36 GA RV 13 RV 4…
O.C.G.A. § 5-6-6 Damages for frivolous appeal
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When in the opinion of the court the case was taken up for delay only, 10 percent damages may be awarded by the appellate court upon any judgment for a sum certain which has been affirmed. The award shall be entered in the remittitur. (Laws 1845, Cobb’s 1851 Digest, p. 450; Code …
O.C.G.A. § 5-6-8 Entry of decision on minutes; directions to lower court
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The decision in each case shall be entered on the minutes. It shall be within the power of the appellate court rendering the decision in a case to make such order and to give such direction as to the final disposition of the case by the lower court as may be consistent with the l…
O.C.G.A. § 5-6-9 Transmittal of opinion to lower court generally
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(a) Where a further hearing of the case is to follow in the lower court, the clerk of the appellate court shall transmit a copy of the opinion to the clerk of the lower court, without charge, as soon as the opinion is written out. The copy shall remain on file for the information…