James Dewberry v. Mary Roberts

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 15, 2018
The Court of Appeals hereby passes the following order:
A19D0162. JAMES DEWBERRY v. MARY ROBERTS.
Mary Roberts filed an action against James Dewberry in magistrate court to
recover a suit on account, and the magistrate court ordered service by publication.
Thereafter, Dewberry filed a motion to dismiss based on Roberts’s failure to
personally serve him. The magistrate court denied the motion and entered judgment
in Roberts’s favor. Dewberry then appealed to the superior court. In superior court,
he again filed a motion to dismiss based on defective service; the motion was denied.
Ultimately, on July 26, 2018, the superior court dismissed with prejudice Dewberry’s
action. He thereafter filed a “motion to set aside” the dismissal based on lack of
personal jurisdiction; but with the exception of the introduction and some
renumbering of paragraphs, Dewberry’s motion to set aside was almost identical to
his previous motion to dismiss. The trial court denied the motion on September 27,
2018, and Dewberry filed this application within 30 days. We, however, lack
jurisdiction.
Although Dewberry styled his most recent motion as a motion to set aside, as
noted by the trial court, the motion was just the most recent in a series of motions
challenging the court’s jurisdiction due to alleged lack of service of the magistrate
court action. Moreover, the court had previously considered and denied all of
Dewberry’s arguments in that regard. And although lack of jurisdiction may serve as
a basis for setting aside the order under OCGA § 9-11-60 (d), Dewberry literally
recycled his earlier motion to dismiss, such that his motion was in substance one for
reconsideration. See Masters v. Clark, 269 Ga. App. 537, 538 (604 SE2d 556) (2004)
(“[T]here is no magic in the nomenclature used. Under our rules, pleadings are judged
by their function and not the name used.”) (citation and punctuation omitted); see also
Harris v. State, 278 Ga. 280, 282 (600 SE2d 592) (2004) (“A motion to set aside a
judgment under . . . OCGA § 9-11-60 (d) is not designed to challenge a court’s legal
reasoning. On the contrary, such a motion attacks a judgment on grounds that are
extraneous to the merits of the case.”). An order denying a motion for reconsideration
is not appealable in its own right. See Bell v. Cohran, 244 Ga. App. 510, 511 (536
SE2d 187) (2000). Moreover, a motion for reconsideration does not extend the time
for filing an appeal from the underlying order. See Cheeley- Towns v. Rapid Group,
Inc., 212 Ga. App. 183 (1) (441 SE2d 452) (1994); Harris, 278 Ga. at 282 n.3 (“[A]
motion to reconsider does not toll the time for filing an application to appeal.”) Here,
the underlying order was the July 26, 2018, order dismissing Dewberry’s action, from
which he did not appeal.
Because Dewberry’s application is not timely from an appealable order, it is
hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/15/2018
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.