Annette C. Howell v. Beauly, LLC. ( 2014 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 19, 2014
The Court of Appeals hereby passes the following order:
A15D0169. ANNETTE C. HOWELL et al. v. BEAULY, LLC.
This case began as a dispossessory proceeding brought by Beauly, LLC., in the
Magistrate Court of DeKalb County. Defendant Annette Howell filed an answer and
counterclaims in magistrate court. It appears that Beauly voluntarily dismissed its
action against Howell, and Howell’s counterclaims were dismissed for want of
prosecution. Howell attempted to appeal the dismissal of her counterclaims, but on
October 28, 2014, the DeKalb County Superior Court dismissed her appeal because
no party may appeal from a dismissal due to want of prosecution except by certiorari.
See OCGA § 15-10-41 (b) (2). On December 1, 2014, Howell filed this application
for discretionary appeal from that dismissal. We lack jurisdiction.
Generally, an application for discretionary appeal shall be filed within 30 days
of entry of the order sought to be appealed. OCGA § 5-6-35 (d). But the underlying
subject matter of an appeal generally controls over the relief sought in determining
the proper appellate procedure. Rebich v. Miles, 264 Ga. 467, 467-468 (448 SE2d
192) (1994). The underlying subject matter of this discretionary application is an
order entered in a dispossessory action. OCGA § 44-7-56, pertaining to dispossessory
actions, states that “[a]ny judgment by the trial court shall be appealable pursuant to
Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal shall be filed within
seven days of the date such judgment was entered.”
Because Howell did not file her application for discretionary appeal within
seven days of the date of entry of the order she seeks to appeal, this court lacks
appellate jurisdiction over this application, and it is hereby DISMISSED.
Court of Appeals of the State of Georgia
12/19/2014
Clerk’s Office, Atlanta,____________________
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.