Summary
In Fife v. Johnston, 225 Ga. 447 (169 SE2d 167) (1969), a direct appeal was filed from the grant of the defendant's motion for new trial, and this Court dismissed the appeal after rejecting the appellant's challenge to the constitutionality of Code Ann. § 6-701, the predecessor of OCGA § 5-6-34, providing the procedure for interlocutory appeal.
Summary of this case from In re A. COpinion
25208.
ARGUED JUNE 12, 1969.
DECIDED JULY 10, 1969. REHEARING DENIED JULY 24, 1969.
Action for damages; constitutional question. Fulton Superior Court. Before Judge Etheridge.
Beryl H. Weiner, John R. Strother, Jr., for appellant.
James O. Goggins, Gambrell, Russell, Moye Killorin, Edward W. Killorin, J. Arthur Mozley, for appellees.
In considering the constitutional attack on Code Ann. § 6-701, we find that the right of appeal is not absolute, but is one based upon the conditions imposed by the General Assembly for bringing cases to the appellate courts. The Constitutional ( Code Ann. § 2-3704) vests in the General Assembly the power to "prescribe conditions as to the right of a party litigant to have his case reviewed by the Supreme Court or Court of Appeals." Whether wise or unwise, as long as the Act does not offend the Constitution, courts must abide by it. Thus the Constitution gives the General Assembly the authority to enact laws placing conditions upon appeals. The legislature in the Appellate Practice Act ( Code Ann. § 6-701; Ga. L. 1965, p. 18; 1968, pp. 1072, 1073), requires that: (1) the judgment must be final and, (2) the cause no longer pending in the court below in order to appeal. It then authorizes appeals from certain other judgments and upon the certification of the judge within ten days that a judgment not otherwise subject to direct appeal is of such importance to the case that immediate review should be had, then appeal is allowed from judgments that leave the cause pending. In this case where the verdict was for $100,000, the judge granted the defendant's motion for a new trial thus leaving the case pending and then refused to certify within ten days that his judgment was of such importance to the case that immediate review should be had, thereby shutting off a review of his ruling, although a reversal on appeal would have terminated the case and another costly trial would have been avoided. Cruel though it was for the law to thus authorize a judge to deprive the loser of a right to appeal, we cannot say the law is unconstitutional. Therefore, the appeal not being authorized, we have no choice but to dismiss it.
Appeal dismissed. All the Justices concur.