Booker v. Amdur

186 Ga. App. 276 (1988)

367 S.E.2d 94

BOOKER et al. v. AMDUR et al.

76364.

Court of Appeals of Georgia.

Decided March 8, 1988.

Russell D. Waldon, for appellants.

Robert W. Beynart, John L. Latham, Edward C. Brewer III, William S. Goodman, Judy F. Aust, for appellees.

BANKE, Presiding Judge.

The defendants in this personal injury action filed this appeal from a judgment entered on a jury verdict in favor of the plaintiffs. The judgment was entered on June 19, 1987; and the notice of appeal was filed on July 20, 1987. During the intervening period, on July 14, 1987, the plaintiffs filed a motion for new trial, which they later dismissed on December 4, 1987. The plaintiffs have moved to dismiss the present appeal on the ground that it was filed during the pendency of their motion for new trial. Held:

"`A notice of appeal from the judgment, filed while a motion for new trial is pending, and unaccompanied by a proper certificate for immediate review, confers no jurisdiction in the appellate court and results in a dismissal of the appeal.'" Dept. of Transp. v. Rudeseal, 148 Ga. App. 179, 180 (251 SE2d 11) (1978). This is true whether the motion for new trial was filed by the appellant or by another party. See Lamas Co. v. Baldwin, 118 Ga. App. 437 (164 SE2d 236) (1968); Rome Housing Auth. v. Allied Bldg. Materials, 182 Ga. App. 233 (1) (355 SE2d 747) (1987). In such cases, the withdrawal or dismissal of the motion for new trial by the party who filed it is considered a disposition of the motion pursuant to OCGA § 5-6-38 (a), so as to commence the running of the 30-day period for filing an appeal. See Golden v. Credico, Inc., 124 Ga. App. 700, 701 (185 SE2d 578) (1971). Since the defendants' notice of appeal in this case was not filed within 30 days of the dismissal of the plaintiffs' motion for new trial, it follows that the appeal must be dismissed pursuant to OCGA § 5-6-48 (b).

Appeal dismissed. Birdsong, C. J., and Beasley, J., concur.