Willie Bennett v. Citimortgage, Inc.

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 14, 2016
The Court of Appeals hereby passes the following order:
A17D0184. WILLIE BENNETT v. CITIMORTGAGE, INC.
In this dispossessory action brought by Citimortgage, Inc., against Willie
Bennett, the magistrate court issued a writ of possession in favor of Citimortgage.
Bennett filed a number of motions in the magistrate court, which were ultimately
dismissed. Bennett then filed a petition for a writ of certiorari in the state court. On
October 31, 2016, the state court denied Bennett’s petition for certiorari. Bennett
sought discretionary appeal of this order on November 30, 2016. We lack jurisdiction
because Bennett’s application is untimely.
Generally, an application for discretionary appeal must 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 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 here is a dispossessory action. OCGA § 44-7-56
provides that an appeal from any 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). Because Bennett’s application was filed
30 days after the state court’s October 31, 2016 order was entered, this application is
untimely. Accordingly, this application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/14/2016
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.