Maria Hernandez v. Wilmington Savings Fund Society ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 20, 2017
The Court of Appeals hereby passes the following order:
A18D0198. MARIA HERNANDEZ v. WILMINGTON SAVINGS FUND
SOCIETY.
On November 8, 2017, the Magistrate Court of Gwinnett County entered a
default judgment against Maria Hernandez and granted a writ of possession in favor
of Wilmington Savings Fund Society. Hernandez filed a notice of appeal in the
Superior Court of Gwinnett County which the Magistrate Court dismissed pursuant
to OCGA § 15-10-41 (b) (2). Hernandez then filed her application for discretionary
appeal in this Court on November 21, 2017. We, however, lack jurisdiction.
Generally, “[t]he only avenue of appeal available from [a] magistrate court
judgment is provided by OCGA § 15-10-41 (b) (1), which allows for a de novo appeal
to the state or superior court.” Handler v. Hulsey, 199 Ga. App. 751, 751 (406 SE2d
225) (1991). Additionally, when a default judgment is entered against a party in
magistrate court, that party does not have a right to direct appeal but must seek
certiorari to the state court or superior court of that county. OCGA § 15-10-41 (b) (2)
(“No appeal shall lie from a default judgment . . . . Review . . . shall be by certiorari
to the state court of that county or to the superior court of that county.”).
This Court may only address magistrate court matters that already have been
reviewed by the state or superior court. See Westwind Corp. v. Washington Fed. S &
L Assn., 195 Ga. App. 411 (1) (393 SE2d 479) (1990); see also OCGA § 5-6-35 (a)
(1), (a) (11). But here, the only order in the application materials was issued by the
magistrate court, which has not been reviewed by a state or superior court.
For this reason, this application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/20/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.