Opinion
44373.
ARGUED APRIL 7, 1969.
DECIDED APRIL 23, 1969.
Removal of obstruction. Jones Superior Court. Before Judge Jackson.
Joseph H. Briley, for appellant.
Ben B. Ross, for appellees.
The failure to serve the opposing party with a notice of appeal to the superior court from the ruling of the ordinary ordering an obstruction removed from a private way is not ground to dismiss such appeal, as there is no requirement for giving of such notice. The Civil Practice Act of 1966 has no application thereto.
ARGUED APRIL 7, 1969 — DECIDED APRIL 23, 1969.
A proceeding was brought by G. B. Slocumb against James M. Ross, Jr., and Juanita Billingslea in the Court of Ordinary of Jones County, for the removal of an obstruction from a private way. The ordinary found for the applicant and ordered the obstruction removed. The respondents, being dissatisfied with the judgment of the ordinary, appealed to the superior court pursuant to Code Ann. § 83-120, but did not serve the opposing party with a copy of the notice. A motion to dismiss the appeal in the superior court was made on the ground that a copy of the appeal was required to be served on the opposing party under Section 5 (a) of the Civil Practice Act ( Code Ann. § 81A-105 (a)). Whether the Civil Practice Act applies to the court of ordinary, since the court of ordinary is a court of record (see Section 1 of the Civil Practice Act; Ga. L. 1966, pp. 609, 610; Code Ann. § 81A-101), and whether, since the statutory method of appeal from a ruling under Code Ann. § 83-120 has no rule in conflict with the requirements of service of papers upon the opposing party under Section 5 (a) of the Civil Practice Act, supra (see Section 81 of the Civil Practice Act, as amended by the Act of 1967, pp. 226, 241), it is necessary to serve the opposing party with a copy of the notice of appeal to the superior court, it is not necessary to decide for the reason that the proceeding involved here was not a proceeding in the court of ordinary and therefore not a proceeding in a court of record. "The removal of obstructions from a private way is a matter for the decision of the ordinary, not the court of ordinary. Fortson v. Maddox, 67 Ga. 282 (1)." Little v. McCalla, 20 Ga. App. 324 (3) ( 93 S.E. 37). The Civil Practice Act having no application thereto, and there being no requirement for service of the appeal on the opposing party under the statutory procedure governing appeals to the superior court from the decision of the ordinary in ordering an obstruction removed from a private way ( Code § 6-101 et seq.; Rogers v. Anderson, 95 Ga. App. 637 ( 98 S.E.2d 388)), the judge of the superior court did not err in refusing to dismiss the appeal.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.