Gillen v. Bostick ( 1975 )

Nichols, Chief Justice,

dissenting.

I respectfully dissent from Division 1 of the majority opinion. Section 1(a)(1) of the Appellate Practice Act (Ga. L. 1965, p. 18; Code Ann. § 6-701(a)(l)) provides, with exceptions not applicable here, that an appeal may be taken "where the judgment is final — that is to say — where the cause is no longer pending in the court below.” (Emphasis supplied.) Section 5 of the Act (Ga. L. 1965, pp. 18, 21; Code Ann. § 6-803(a)) provides that "A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of . . . (Emphasis supplied.) The majority opinion would abrogate the clear language of these statutory provisions. Moreover, the majority opinion has the effect of judicially repealing Ga. L. 1965, pp. 18, 22 (Code Ann. § 6-1002) which provides that the notice of appeal shall serve as a supersedeas and that its filing divests the trial court of jurisdiction. See Park v. Minton, 229 Ga. 765 (4) (194 SE2d 465); Jackson v. Martin, 225 Ga. 170, 172 (167 SE2d 135). Under Code Ann. § 6-1002, the trial court wouldhave been without jurisdiction to enter its judgment of January 15, 1975. The majority opinion hereby authorizes a notice of appeal to be filed with respect to a non-final judgment, before entry of any final judgment, and allows the trial court to retain jurisdiction of the case even after filing of the notice of appeal, all in contravention of the express language of the above statutory provisions.

I am authorized to state that Presiding Justice Undercofler concurs in this dissent.