Cohran v. Carlin , 160 Ga. App. 762 ( 1981 )

Deen, Presiding Judge.

This contempt case arises from the litigation which was the subject of a notice of appeal in Cohran v. Jones, 160 Ga. App. 761. The notice of appeal in that action was filed May 8, 1981 and has been dismissed by this court as the litigation is still pending in the trial court, appellant having failed to obtain permission for an interlocutory appeal as required by Code § 6-701 (a) 2. Two orders of the trial court passed the same day and requiring the defendant to answer certain interrogatories and make certain discovery were not complied with and this triggered the contempt judgment of June 15, 1981 from which this appeal was filed.

Decided December 2, 1981 Rehearing denied December 18, 1981. Hilton B. Dupree, Roy E. Barnes, for appellant. Taylor W. Jones, for appellees.

We affirm. Where, as in Walker v. Walker, 239 Ga. 175 (236 SE2d 263) (1977) there is an appeal from a final judgment, such appeal deprives the trial court of jurisdiction to take further proceedings toward the enforcement of the judgment on appeal for the reason that Code Ann. § 6-1002 (a) provides that in civil cases a notice of appeal from such final judgment serves as a supersedeas. See also Lake v. Hamilton Bank, 150 Ga. App. 123 (257 SE2d 31) (1979). Also, since the amendment to Code § 6-701 (a) 2 by Ga. L. 1975, pp. 757, 758 effective July 1, 1975, an order of the appellate court granting a petition for interlocutory review where the trial court had issued the required 10-day certificate that immediate review should be had, the notice of appeal timely filed thereafter “shall act as a supersedeas as provided in Section 6-1002 and the procedure thereafter shall be the same as in an appeal from a final judgment.”

Turner v. Harper, 233 Ga. 483 (211 SE2d 742) was decided on January 7,1975, prior to the effective date of Code § 6-701 (a) 2 setting out the present procedure for interlocutory appeals. That case properly held under the law then obtaining that where an interlocutory appeal is certified for review in the appellate court (no petition for review to this court being a part of the prior procedure), “[T]he trial court retains jurisdiction with discretionary power to proceed with the trial or enter any other order in the case pending the appeal.” Id., p. 484. It is clear that except for the right to automatic supersedeas set out in Code § 6-701 (a) 1 or 2 the trial court does in fact have jurisdiction to proceed with the case, although of course any judgment so rendered is subject to being vacated if adversely affected by the judgment in the pending appeal.

We have held in Cohran v. Jones, supra, that the attempted appeal in that case, not being from a final judgment nor upon the grant of a petition for interlocutory review, was a nullity. The trial court accordingly retained jurisdiction with discretionary power to order the defendant to comply with certain interrogatories, subpoenas and other discovery requests, and to hold him in contempt for wilful failure to do so.

Judgment affirmed.

Banke and Carley, JJ., concur.