Hoover v. State Highway Department

Full title: HOOVER v. STATE HIGHWAY DEPARTMENT

Court: Court of Appeals of Georgia

Date published: Apr 8, 1968

161 S.E.2d 371 (Ga. Ct. App. 1968)

161 S.E.2d 371

Opinion

43531.

SUBMITTED MARCH 6, 1968.

DECIDED APRIL 8, 1968.

Appellate procedure. Clayton Superior Court. Before Judge Banke.

Thomas F. Nicholson, for appellant.

Arthur K. Bolton, Attorney General, Richard L. Chambers, John A. Sligh, Jr., Assistant Attorneys General, for appellee.

DEEN, Judge.

"The notice [of appeal shall set forth . . . a concise statement of the judgment, ruling or order entitling the appellant to take an appeal." Code Ann. § 6-802. The notice in this case fails to identify any final judgment appealed from otherwise than by stating that it is "the judgment entered in this action on November 7, 1967." The record shows no judgment entered on that date. The order denying the motion for new trial was signed and filed in the clerk's office on November 8, 1967, and cannot be considered as the judgment appealed from. Hardnett v. U.S. F. G. Co., 116 Ga. App. 732 ( 158 S.E.2d 303); Olson v. Austin Enterprises, 116 Ga. App. 197 ( 156 S.E.2d 655); Bowers v. Gill, 222 Ga. 529 ( 150 S.E.2d 653); Walker v. Walker, 222 Ga. 521 ( 150 S.E.2d 635).

The motion to dismiss is granted and the appeal is

Dismissed. Pannell, J., concurs. Jordan, P. J., concurs specially.

SUBMITTED MARCH 6, 1968 — DECIDED APRIL 8, 1968.

JORDAN, Presiding Judge, concurring specially.

I concur in in the judgment for the reason pointed out by Chief Judge Felton in the Olson case cited in the opinion, i.e., solely because we are bound by the two Supreme Court cases cited in the opinion.

The record in this case shows a final judgment dated November 8, 1967, and a timely notice of appeal filed thereto. The fact that the notice of appeal specified the judgment as dated "November 7, 1967" is apparently a typographical error or oversight which in my opinion does not deprive this court of jurisdiction of the appeal. Code Ann. § 6-809 specifies that this court may "take any other action to perfect the appeal and record so that the appellate court can and will pass upon the appeal and not dismiss." Where the record clearly shows a final judgment and a timely appeal therefrom with sufficient clarity for this court to understand the judgment appealed from, the appeal should not be dismissed because of a technical defect in the notice of appeal.