MARVIN B. SMITH, III v. HSBC BANK U.S.A. N.A. ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 14, 2017
The Court of Appeals hereby passes the following order:
A18D0189. MARVIN B. SMITH, III, et al. v. HSBC BANK U.S.A. N.A.
This case began as a dispossessory proceeding in magistrate court. Following
an adverse ruling in that court, defendants Marvin B. Smith, III, and Sharon Smith
appealed to the superior court, which entered judgment in favor of the plaintiff. The
defendants then appealed directly to this Court, and the appeal was dismissed based
upon the Smiths’ failure to follow the discretionary appeal procedure. See Case
Number A17A0663, dismissed Dec. 13, 2016.
The Smiths subsequently filed a motion to set aside in the superior court,
challenging the validity of the underlying judgment. On September 5, 2017, the
superior court entered an order denying the motion. The Smiths filed an application
for discretionary appeal from this ruling on October 4, 2017.1 We, however, lack
jurisdiction.
Generally, an application for discretionary appeal may be filed within 30 days
of entry of the order or judgment sought to be appealed. See OCGA § 5-6-35 (d).
The underlying subject matter of an appeal, however, controls over the relief sought
in determining the proper appellate procedure. See Rebich v. Miles, 264 Ga. 467, 467-
468 (448 SE2d 192) (1994). The underlying subject matter here is a dispossessory
judgment. Under OCGA § 44-7-56, an appeal from a dispossessory judgment must
be filed within seven days of the date the judgment was entered. See Ray M. Wright,
Inc. v. Jones, 239 Ga. App. 521, 522-523 (521 SE2d 456) (1999).
1
The Smiths directed their application to the Supreme Court, which
transferred it to this Court.
Here, the Smiths filed their application 29 days after the superior court’s order
was entered. Accordingly, the application is untimely and is therefore DISMISSED
for lack of jurisdiction.2
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/14/2017
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.
2
We do not address whether the application is also barred by the law of the
case rule. See OCGA § 9-11-60 (h) (rulings by an appellate court are binding as
the law of the case and may not be set aside); Williams v. State, 335 Ga. App. 468,
469 (1) (781 SE2d 791) (2016) (appellate court’s dismissal of appeal effectively
affirmed the lower court’s ruling and became the law of the case).