Solomon Refrigeration, Inc. v. Lloyd

Quillian, Presiding Judge.

In the case sub judice judgment against the. defendant, appellant, was entered September 24, 1976. The defendant moved for a new trial and hearing thereon was scheduled for October 18, 1976. On November 1, 1976, the defendant’s motion for new trial was dismissed for failure to prosecute. The defendant filed a notice of appeal on November 29, 1976. The plaintiff moved to dismiss the appeal for failure to timely obtain an extension of time to file the transcript. After a hearing on plaintiffs motion the lower court dismissed the appeal on February 15, 1976.

The defendant filed an extraordinary motion for new trial on March 30,1977. This motion was denied on April 8, 1977. On April 18, 1977, the defendant then filed a notice of appeal from the judgment entered on September 24, 1976. Held:

From the above it is obvious that consideration of enumerations of error relating to the final judgment of September 24, 1976, the dismissal of the motion for new trial and the dismissal of the notice of appeal is precluded since there is no valid, timely notice of appeal as to such judgments.

In view of the liberal policy of this court under Rule 14 (e) and in compliance with Code Ann. § 6-809 (Ga. L. 1965, pp. 18, 29; 1965, pp. 240, 241; 1966, pp. 493, 500; 1968, pp. 1072, 1073, 1074; 1972, p. 624), we would consider the correctness of the trial judge’s denial of the extraordinary motion for new trial. However, the denial of such motion is not enumerated as error and the grounds raised therein are more appropriate to a motion for new trial or direct appeal rather than an extraordinary motion. There being no basis for reversal the judgments are affirmed.

Argued September 15, 1977 Decided January 18, 1978. Nathan & Nathan, Ivan H. Nathan, for appellant. Schreiber, Rozier & Thomas, W. Vincent Settle, III, for appellee.

Judgment affirmed.

Shulman and Banke, JJ., concur.