Opinion
34295, 34320.
DECIDED FEBRUARY 14, 1953.
Rent overcharge; from Fulton Civil Court — Appellate Division. August 6, 1952.
Walters Roberts, for plaintiff in error.
Willingham, Gortatowsky Morrison, Emory J. Kinard, contra.
1. "Where an appeal to the appellate division of the municipal court of Atlanta [now the Civil Court of Fulton County] is made within ten days of a judgment upon a motion for new trial, but beyond fifteen days from the date of the final judgment rendered by the trial judge upon the trial, the appellate division has jurisdiction only to review the judgment upon the motion for new trial; and where there has been an order overruling the motion for new trial, and in the appeal no error is assigned on the final order of the trial judge in overruling the motion for new trial, the appeal is a nullity, and is not amendable." Valdes v. Peoples Loan Savings Co., 60 Ga. App. 76 ( 2 S.E.2d 755). See also Jeter v. Turman-Brown Co., 169 Ga. 30 ( 149 S.E. 555). The language of the appeal in this case did not constitute an assignment of error on the order of the trial judge overruling the motion for new trial ( Branon v. Ellbee Pictures Corp., 40 Ga. App. 450 (2), 150 S.E. 168), and the Appellate Division of the Civil Court of Fulton County erred in overruling the motion to dismiss the appeal on the 5th ground therein set forth, as complained of in the cross-bill of exceptions.
2. The decision above rendered on the cross-bill of exceptions is controlling and necessarily brings about a final disposition of the case which is adverse to the plaintiff in error in the main bill; and since a reversal of the case on the main bill would not in any manner benefit the plaintiff in error therein, the main bill of exceptions is dismissed. Rives v. Rives. 113 Ga. App. 392 (1), 398 ( 39 S.E. 79); Gunn v. Airbank of America, 76 Ga. App. 380 (2) ( 45 S.E.2d 789).
Judgment reversed on the cross-bill of exceptions; main bill dismissed. Sulton, C. J., and Felton J., concur.
DECIDED FEBRUARY 14, 1953.
STATEMENT OF FACTS BY WORRILL, J.
Wilbanks recovered a judgment against Eubanks in the Civil Court of Fulton County. Eubanks made an oral motion for a new trial in accordance with the procedure in that court, which, after a hearing, was overruled. Thereafter, and within 15 days of that judgment, Eubanks filed a purported appeal to the Appellate Division of the Civil Court of Fulton County, which assigned error (admittedly not within the time allowed by law) on certain antecedent rulings of the trial court, and in which the following was the only reference to the motion for new trial, or to the order overruling the same; "Defendant shows that said judgment of the court granting the plaintiff a judgment was a final judgment and the motion for new trial came on to be heard before the Honorable. J. Wilson Parker on the 24th day of April, 1952, and having heard argument by both sides on the exceptions taken on the trial of the case, r. e. [sic]. The court erred in taking judicial notice that Atlanta, Fulton County, Georgia, is in the Atlanta defense rental area. The judgment in said suit is against the weight of the evidence. The judgment in said suit is contrary to the evidence and without evidence to support it. That said errors were the basis for a new trial and that the exceptions taken on these errors were argued on the motion for new trial. That said motion for new trial was overruled on the 24th day of April, 1952. Defendant shows that judgment of the court overruling his motion for new trial was such a final judgment as at law authorizes defendant to file his bill of exceptions to the Appellate Division of the Civil Court of Fulton County."
Wilbanks filed in the Appellate Division a motion to dismiss the appeal on several grounds, one of which was that the "bill of exceptions contains no appeal from or exception to the order and judgment of the trial judge in overruling appellant's motion for new trial, and does not allege that a new trial should have been granted or that the trial judge erred in not granting same." The Appellate Division entered an order denying the motion to dismiss and affirming the order of the trial judge overruling the motion for new trial. Eubanks filed his bill of exceptions to this court complaining of so much of the order of the Appellate Division as affirmed the order of the trial judge; and Wilbanks, by cross-bill of exceptions, complains of the denial of his motion to dismiss the appeal.