See Kelly v. State, 315 Ga. 444, 445 (1) n.2 (883 S.E.2d 363) (2023) (citing Bivens v. Todd, 222 Ga. 84, 85 (148 S.E.2d 424) (1966), for the principle that a party's appeal must be dismissed when it is brought from a judgment that was completely favorable to him). Appeal dismissed.
2. Appellee's cross-appeal is dismissed, as the order appealed from was favorable to her, thus providing no basis for appeal. Stone v. State, 158 Ga. App. 511 ( 281 S.E.2d 278) (1981); Cauley v. State, 130 Ga. App. 278 (2) ( 203 S.E.2d 239) (1973); Bivens v. Todd, 222 Ga. 84 (1) ( 148 S.E.2d 424) (1966). In the main appeal, judgment affirmed.
Held: The order appealed from was favorable to the appellant, thus providing no basis for appeal. See Bivens v. Todd, 222 Ga. 84 (1) ( 148 S.E.2d 424) (1966); Cauley v. State, 130 Ga. App. 278 (2) ( 203 S.E.2d 239) (1973). Appeal dismissed. Deen, P. J., and Carley, J., concur.
This ruling was favorable to the defendant. Cf. Bivens v. Todd, 222 Ga. 84, 85 (1) ( 148 S.E.2d 424). (c) Prior to trial Cauley made a motion for severance, praying that he be granted a separate trial, alleging that he had a conflicting and different defense to that of codefendant Woods, that Woods was not going to make a sworn statement and that Cauley would be denied his Sixth Amendment right to confrontation and cross examination.
In any event a reversal of the remand would be of no benefit to appellant since the reversal would leave standing the agency order denying assistance to her. She may not appeal from a favorable judgment, Bivens v. Todd, 222 Ga. 84 ( 148 S.E.2d 424), or have review of a ruling which would not be beneficial to her. Gober v. Colonial Pipeline Co., 228 Ga. 668 ( 187 S.E.2d 275). Appellant should pursue the matter before the agency, seeking a new adjudication there.
And see White v. Williamson, 44 Ga. App. 428 (2) ( 161 S.E. 654); Stewart v. Stewart, 106 Ga. App. 211 ( 126 S.E.2d 716); Compton v. Weekes, 107 Ga. App. 283 ( 129 S.E.2d 824); Alexander v. Fontenot, 113 Ga. App. 36 ( 147 S.E.2d 25); Eubank v. Barber-Colman Co., 115 Ga. App. 217 (1) ( 154 S.E.2d 638). The notice of appeal cannot be amended to substitute a new party. Bivens v. Todd, 222 Ga. 84 (2) ( 148 S.E.2d 424). Consequently, where the only notice of appeal in these cases was entered in his individual capacity by the person named as executor of the will of the deceased defendant, no valid appeal pends before us and the appeals must be
On the same day, trial counsel filed a motion to modify sentence, but the record does not show that the trial court ever ruled on that motion. On April 17, 2015, trial counsel also filed a notice of appeal on Kelly's behalf, but that premature notice of appeal could not have ripened until the motion for new trial was no longer pending, see Pounds v. State , 309 Ga. 376, 382, 846 S.E.2d 48 (2020) ("[B]ecause the motion for new trial is pending, any notice of appeal to an appellate court ‘has not yet ripened, and the trial court retains jurisdiction to dispose of the motion for new trial.’ ") (quoting State v. Hood , 295 Ga. 664, 664, 763 S.E.2d 487 (2014) ), and the order granting a new trial, as discussed below, was favorable to Kelly and so could not have provided a basis for him to appeal, see Bivens v. Todd , 222 Ga. 84, 85, 148 S.E.2d 424 (1966) (after enactment of Appellate Procedure Act of 1965, as before, a party's appeal had to be dismissed when "the only judgment from which he could appeal [was] completely favorable to him"). On October 19, 2021, at a hearing on the motion for new trial (and nearly six months after the trial court had directed the Attorney General to appoint conflict counsel within 30 days), the assistant district attorney explained that the Attorney General had not been able to find a prosecutor to volunteer to take this case and had not yet appointed conflict counsel for the State.
Such amendment cannot be made. Graham v. Barber, 192 Kan. 554, 390 P.2d 23 (1964); 4A C.J.S. Appeal Error § 593(11), at 351. See also Bivens v. Todd, 222 Ga. 84, 148 S.E.2d 424 (1966); and Welch v. State, 80 Nev. 128, 390 P.2d 35 (1964). No notice of appeal having been filed in the seventeen cases, we are required to dismiss these appeals for want of jurisdiction; as to State v. Good, No. 7090 (2 CA-CR 153), service of the notice of appeal upon the defendant having been waived, the motion to dismiss is denied.