Law Offices of Johnson & Robinson v. Fortson , 175 Ga. App. 706 ( 1985 )

Deen, Presiding Judge.

In case number 70362, appellants contend it was error for the trial court to dismiss a lis pendens and in denying their motion “to arrest/vacate judgment.” Case number 70363 is an appeal from the trial court’s order denying appellant’s motion for “default judgment and dismissing parties” and from an order denying their motion “to arrest/vacate judgment.” Appellees have filed a motion to dismiss the appeals in this court contending that the notice of appeal was not timely filed. Held:

The orders which dismissed the lis pendens and denied the default judgment were filed on July 18, 1984, and July 27, 1984, respectively. The motions to “arrest/vacate judgment^]” were filed on August 17, 1984. The court’s ruling on these latter motions was filed on December 4, 1984, and the notice of appeal was filed on January 3, 1985.

OCGA § 5-6-38 requires a party to file a notice of appeal within 30 days after the entry of an appealable decision or judgment of which he complains, unless the motion for a new trial, or a motion in arrest of judgment, or a motion for a judgment notwithstanding the verdict has been filed. Failure to timely file a notice of appeal is one of the statutory grounds for dismissal of the appeal. OCGA § 5-6-48 (b) (1). A motion to vacate and set aside final judgment is not a motion enumerated in OCGA § 5-6-38 which extends the time for filing a notice of appeal. Lawler v. Ga. Mut. Ins. Co., 156 Ga. App. 265 (276 SE2d 646) (1980); Williams v. Keebler, 222 Ga. 437 (150 SE2d 674) (1966). A motion to set aside can extend the time for filing. Johnson v. Barnes, 237 Ga. 502 (229 SE2d 70) (1976). It must, however, be “predicated upon some nonamendable defect which does appear upon the face of the record or pleadings or such motion must be based upon lack of jurisdiction of the person or subject matter.” Littlejohn v. Tower Assoc., 163 Ga. App. 37, 38 (293 SE2d 33) (1982); OCGA § 9-11-60 (d). The body of the motions in question states they “move the court to arrest, set aside and vacate its order ...” on the general grounds. As there is no showing of a nonamendable defect or lack of jurisdiction which would support a motion to set aside, the motions in the instant cases would not extend the time for filing a notice of appeal from the orders entered on July 18, 1984, and July 27, 1984.

It is not necessary for this court to reach a determination as to whether the orders which formed the basis for these motions are final judgments and would be directly appealable or whether appellant would be required to follow the procedure for seeking an interlocutory appeal because his time for filing any document in this court had expired in August 1984.

The motions cannot be considered to be motions in arrest of judgment in spite of their title “[s]ince nowhere in the motion was it alleged that the judgment sought to be arrested was procured by accident, mistake or fraud or through any defect not amendable appearing on the face of the record or pleadings or by perjury or any other irregularity . . . [Cit.]” Stefanick v. Ouellette, 97 Ga. App. 644, 646 (104 SE2d 156) (1958). See also OCGA § 9-12-15; Littlejohn v. Tower Assoc., supra, wherein the court noted that the denomination of a motion is not controlling; the movant must state a basis for the motion. Merely reciting the general grounds is not a basis for a motion to arrest.

We can only conclude therefore that these motions are motions to set aside judgments and that appellant has followed the wrong appellate procedure because appeals from orders denying motions to set aside a judgment cannot be entertained by this court on direct appeal; appellant is required to file an application for appeal pursuant to the provisions of OCGA § 5-6-35 (a) (8). Accordingly these appeals must be dismissed.

Appeals dismissed.

Pope and Beasley, JJ., concur. Beasley, J., also concurs specially.