2020 Georgia Code
Title 5 - Appeal and Error
Chapter 3 - Appeals to Superior or State Court
Article 1 - General Provisions

- Right of appeal from cases in the justice of peace courts, Ga. Const. 1983, Art. VI, Sec. I, Para. V.

ANALYSIS

• General Consideration
• Applicability
• Amount Claimed
• Jurisdiction
• Procedural Issues

General Consideration

Editor's note.

- In light of the similarity of the statutory provisions, decisions under former Code Section 5-3-1, which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this article.

Right to appeal to superior court is fixed by statute, and lies only from bodies or tribunals when appeal therefrom is provided by statute. Georgia Power Co. v. Friar, 47 Ga. App. 675, 171 S.E. 210 (1933), aff'd, 179 Ga. 470, 175 S.E. 807 (1934).

When amount claimed is over $50.00, the law confers right to appeal to superior court. Humphrey v. Johnson, 13 Ga. App. 557, 79 S.E. 530 (1913).

When amount in controversy is $50.00 or less, appeal will not lie as matter of right. Gay v. Brown, 45 Ga. App. 862, 166 S.E. 374 (1932).

Party may appeal to jury in superior court. Hendrix & McBurney v. Mason, 70 Ga. 523 (1883); Southern Express Co. v. Hilton, 94 Ga. 450, 20 S.E. 126 (1894); Wood v. McCrary, 107 Ga. 345, 33 S.E. 395 (1899).

Parties may appeal by consent from justice court to superior court when amount involved is sufficient to authorize appeal. Smith v. Rawson, 61 Ga. 208 (1878).

General statutory meaning of appeal from inferior court to superior court is that, after having been tried in inferior court, jurisdiction of entire case is transferred to superior court for another complete trial. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).

- In case of appeal from ordinary's court (now probate court) to superior court, the various sections relating to appeals to superior court from justice's courts, county courts, and courts of ordinary are in pari materia, and should be construed as providing for a single system of appellate procedure. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

- Right given to party to appeal from judgment in justice's court is predicated on assumption that by judgment complained of appellant has failed entirely in suit or has failed to recover full amount sued for, as to hold otherwise would be to run counter to the well-settled principle that no one will be heard to complain of a judgment unless one has been injured or is aggrieved thereby. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361, 26 S.E.2d 695 (1943).

Party not aggrieved by judgment of trial court is without legal right to except thereto, since the party has of it no just cause of complaint. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361, 26 S.E.2d 695 (1943).

- Substance of judgment, and not opinion of party, determines whether or not one is aggrieved. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361, 26 S.E.2d 695 (1943).

Party is aggrieved by a judgment or decree when it operates on one's rights of property, or bears directly upon one's interest. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361, 26 S.E.2d 695 (1943).

- Appeal can be made from confession of judgment without formal entering of judgment by justice. Huff v. Whitner, Manry & Co., 8 Ga. App. 25, 68 S.E. 463 (1910).

- By comparing sections, which are in pari materia, substantially the same procedure is provided in cases of appeal from award of assessors in condemnation proceeding to superior court as is provided in cases of appeal from justice's court to superior court. State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939).

Cited in Armstrong v. Hand, 36 Ga. 267 (1867); Little v. Thompson, 39 Ga. 658 (1869); Brown v. Robinson, 91 Ga. 275, 18 S.E. 156 (1893); Central of Ga. Ry. v. Howard, 112 Ga. 917, 38 S.E. 338 (1901); Robinson v. McAlpin, 130 Ga. 489, 61 S.E. 115 (1908); Crawford County Bank v. Critt-Hightower Co., 17 Ga. App. 804, 88 S.E. 691 (1916); Slocumb v. Ross, 119 Ga. App. 567, 168 S.E.2d 208 (1969); City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975).

Applicability

1. In General

- When suit is brought in county court for sum exceeding $50.00 in amount, which results, upon trial, in judgment for plaintiff, the defendant may enter appeal to superior court even though the defenses interposed by him in county court were stricken. Helmly v. Davis, 100 Ga. 493, 28 S.E. 231 (1897).

- If case is dismissed when judgment for the defendant should have been entered, the plaintiff may appeal. Hollis v. Doster, 113 Ga. 115, 38 S.E. 308 (1901).

Section inapplicable to proceeding in county court to evict intruder; certiorari is proper remedy. Rigell v. Sirmans, 123 Ga. 455, 51 S.E. 381 (1905).

2. Distinction Between Appeal and Certiorari

General rules.

- Certiorari will not lie when there are issues of fact involved. McDonald v. Dickens, 58 Ga. 77 (1877).

In cases of law, certiorari is proper remedy, in cases of fact, appeal is proper. Rogers v. Bennett, 78 Ga. 707, 3 S.E. 660 (1887).

If in case in county court, amount in controversy is more than $50.00 and case involves question of fact, appeal is proper remedy; if no question of fact is involved, but case rests solely on questions of law, certiorari is proper remedy. Small v. Sparks & Son, 69 Ga. 745 (1882).

Right of appeal presupposes issue to be tried by jury. Small v. Sparks & Son, 69 Ga. 745 (1882).

- Statutory appeal providing for another trial in appellate court on merits of case is altogether different from writ of error on appeal for correction of errors in trial eventuating in judgment from which appeal is taken. In latter proceeding inquiry is into correctness of judgment upon pleading and evidence before trial court. The appellate court affirms or reverses in whole or in part the judgment on review and certifies result to trial court, when the final judgment is entered. That procedure has nothing in common with that of a statutory appeal. The statutory appeal allows litigants in certain cases the right to another trial in superior court upon compliance with certain requisites. The trial in superior court is had without reference to evidence introduced in former trial, and is a de novo investigation. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).

- Certiorari is proper remedy for error in judgment in proceeding seeking strengthening of attachment or garnishment bond. Gregory v. Clark, 73 Ga. 542 (1884).

Amount claimed determines right of appeal. Gay v. Brown, 45 Ga. App. 862, 166 S.E. 374 (1932).

Where no amount claimed, appeal to superior court will not lie. Humphrey v. Johnson, 13 Ga. App. 557, 79 S.E. 530 (1913).

It is amount claimed, and not amount recovered, which determines right of party to appeal. Taylor v. Blasingame, 73 Ga. 111 (1884); Helmly v. Davis, 100 Ga. 493, 28 S.E. 231 (1897).

Pleadings control in determining amount claimed. Singer Mfg. Co. v. Martin, 75 Ga. 570 (1885); Simmons v. Allen, 26 Ga. App. 725, 106 S.E. 811 (1921).

- Amount claimed is determined by adding principal and interest together. Bell v. Morton, 68 Ga. 831 (1882); Magarahan v. Wright & Lamkin, 83 Ga. 773, 10 S.E. 584 (1889).

- In determining amount claimed, interest cannot be waived. McDonald v. Dickens, 58 Ga. 77 (1877); Howard v. Chamberlin, Boynton & Co., 64 Ga. 686 (1880).

Reductions at trial cannot be considered in determining amount claimed. Bell v. Davis, 93 Ga. 233, 18 S.E. 647 (1893).

- In claim cases, amount of execution or value of property determines right of appeal. Turman v. Cargill & Daniel, 54 Ga. 663 (1875); Napier Bros. v. Woodall, 118 Ga. 830, 45 S.E. 684 (1903); Adkins v. Bennett, 138 Ga. 118, 74 S.E. 838 (1912).

- In suit in justice's court, where plaintiff, as beneficiary in life insurance policy, brought suit against insurer to recover in sum of $30.00, representing amount due plaintiff under terms of policy, $7.50 representing 25 percent of amount sued for as damages, and $50.00 representing reasonable attorney's fees as provided in by statute which authorizes recovery for damages and attorney's fees when an insurer has acted in bad faith in failing to pay amount due under policy within required time, amount sued for and claimed in suit was in excess of $50.00. Tate v. Industrial Life & Health Ins. Co., 58 Ga. App. 305, 198 S.E. 303 (1938).

- When amount claimed by the plaintiff in garnishment proceedings was $49.60 and $2.75 costs in suit in justice court and judgment was obtained against the defendant, amount in controversy between garnishees, appellants, plaintiff, and appellee, was $52.35, and the superior court judge erred in dismissing the appeal as being one in controversy involving $50.00 or less. Gay v. Brown, 45 Ga. App. 862, 166 S.E. 374 (1932).

- Appeal lies when attachment for more than $50.00 is levied on property worth less than $50.00, followed by a verdict for less than that amount. Padgett v. Ford, 117 Ga. 508, 43 S.E. 1002 (1903).

Jurisdiction

Appeal imparts same jurisdiction as was possessed by county court.

- In trying appeal from county court, superior court can reach no result which could not have been reached in county court had case been finally disposed of there; hence on trial of such appeal the superior court cannot entertain an equitable petition offered by the defendant as an amendment to a plea of general issue, which petition contemplates and prays for relief which only a court of equity, or a court of law exercising full equity powers, could administer, such as rescission of contracts, cancellation of promissory notes or injunction. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).

In trying appeal from county court, superior court can deal with no question of merits except as could have been raised in county court, and can render no final judgment except such as county court had jurisdiction to render. Greer v. Burnam, 69 Ga. 734 (1882); Hufbauer v. Jackson, 91 Ga. 298, 18 S.E. 159 (1893).

- When case is on appeal in superior court from justice's court, any amendment of summons whether in matter of form or of substance, may be made, which could have been made while case was pending in primary court; the only restriction on either court is that there must be enough to amend by. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

Appellant recognizes validity of summons and judgment by entering appeal to superior court. Twitty v. Bower, 84 Ga. 751, 11 S.E. 354 (1890).

Judgment appealed from need not be set forth in appeal. Georgia, F. & A. Ry. v. Penn Tobacco Co., 9 Ga. App. 840, 72 S.E. 443 (1911).

- In justice's court, which is not a court of record, many defenses are allowed to be made by oral plea, and on appeal to superior court these defenses are required to be reduced to writing before case proceeds to trial. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

- In appeal from county court to superior court, trial of the case is a de novo proceeding, but it by no means follows that pleadings and defenses in the case are to begin over again in the new trial; on the contrary, the new trial is had on papers connected with the case when judgment was rendered, subject to proper amendment. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

Motion to dismiss summons may be made in superior court after appeal for de novo trial following trial in justice court. Furman v. Smith, 106 Ga. App. 742, 128 S.E.2d 641 (1962).

RESEARCH REFERENCES

ALR.

- Who entitled to appeal from decree admitting will to probate or denying probate, 88 A.L.R. 1158.

Change of law after decision of lower court as affecting decision on appeal or error, 111 A.L.R. 1317; 151 A.L.R. 987.

Fault or omission of justice of peace regarding bond, undertaking, or recognizance, as affecting party seeking appeal, 117 A.L.R. 1386.

Amendment in appellate court increasing amount claimed beyond, or reducing amount claimed to, jurisdiction of court below, 168 A.L.R. 641.

Appealability of ruling on demurrer to plea, answer, or reply, 171 A.L.R. 1433.

Inadequacy of verdict as ground of complaint by party against whom it is rendered, 174 A.L.R. 765.

Questions or legal theories affecting trust estates as subject to consideration on appeal though not raised below, 11 A.L.R.2d 317.

Right of mother of illegitimate child to appeal from order or judgment entered in bastardy proceedings, 18 A.L.R.2d 948.

Appealability of order overruling or sustaining motion to quash or set aside service of process, 30 A.L.R.2d 287.

Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.

Plea of guilty in justice of the peace or similar inferior court as precluding appeal, 42 A.L.R.2d 995.

Counterclaim or the like as affecting appellate jurisdictional amount, 58 A.L.R.2d 84.

Jurisdictional amount for appellate review as affected by payment or tender, or by settlement, 58 A.L.R.2d 166.

Jurisdictional amount for appellate review as affected by plaintiff's abandonment of claim, wholly or in part, 58 A.L.R.2d 177.

Ruling on motion to quash execution as ground of appeal or writ of error, 59 A.L.R.2d 692.

Contact or communication between juror and outsider during trial of civil case as ground for mistrial, new trial, or reversal, 64 A.L.R.2d 158.

Appealability of order relating to forfeiture of bail, 78 A.L.R.2d 1180.

Appealability of order relating to transfer, on jurisdictional grounds, of cause from one state court to another, 78 A.L.R.2d 1204.

Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 88 A.L.R.2d 1275, 59 A.L.R.5th 1.

Appealability of order entered in connection with pretrial conference, 95 A.L.R.2d 1361.

Judgment subject to appeal as entitled to full faith and credit, 2 A.L.R.3d 1384.

Extraterritorial effect of valid award of custody of child of divorced parents, in absence of substantial change in circumstances, 35 A.L.R.3d 520.

Right of municipal corporation to review of unfavorable decision in action or prosecution for violation of ordinance - modern status, 11 A.L.R.4th 399.