2020 Georgia Code
Title 5 - Appeal and Error
Chapter 6 - Certiorari and Appeals to Appellate Courts Generally
Article 2 - Appellate Practice
§ 5-6-33. Right of Appeal Generally

1. 1. Either party in any civil case and the defendant in any criminal proceeding in the superior, state, or city courts, or in the Georgia State-wide Business Court, may appeal from any sentence, judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers.
   2. Either party in any civil case in the probate courts provided for by Article 6 of Chapter 9 of Title 15 may appeal from any judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers.
2. This Code section shall not affect Chapter 7 of this title.

(Orig. Code 1863, § 4160; Code 1868, § 4192; Code 1873, § 4251; Ga. L. 1880-81, p. 123, § 1; Code 1882, § 4251; Ga. L. 1887, p. 41, § 1; Civil Code 1895, § 5527; Penal Code 1895, § 1070; Civil Code 1910, § 6139; Penal Code 1910, § 1097; Code 1933, § 6-901; Ga. L. 1965, p. 18, § 22; Ga. L. 1986, p. 982, § 5; Ga. L. 2019, p. 845, § 2-2/HB 239.)

The 2019 amendment, effective May 7, 2019, inserted ", or in the Georgia State-wide Business Court," in the middle of paragraph (a)(1).

- Appeals in habeas corpus cases, §§ 9-14-22,9-14-52.

Review of death sentences by Supreme Court, § 17-10-35 et seq.

Appeal to Court of Appeals or Supreme Court from final judgment of superior court pertaining to review of final decision of administrative agency, § 50-13-20.

- Pursuant to Code Section 28-9-5, in 1987, a comma was deleted following "city courts" in paragraph (a)(1).

- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019).

ANALYSIS

• General Consideration
• When Appeal Lies
• Who May Appeal
• Criminal Proceedings

Liberality is exercised in favor of right of review. Armour Car Lines v. Summerour, 5 Ga. App. 619, 63 S.E. 667 (1909).

- No question will be considered by appellate courts of this state unless it was presented to and passed on by trial court. This rule of law is applicable, whether the case be one involving issues of law and fact, or one involving merely questions of law decided on an agreed statement of facts. Garland v. State, 101 Ga. App. 395, 114 S.E.2d 176 (1960).

When question has never been referred to or decided by court below, the question cannot be reviewed by the appellate court. Hart v. Altmeyer & Co., 74 Ga. 367 (1884).

- In criminal proceeding, trial judge must approve verdict, and if the judge does not, the state cannot review the judge's action in setting aside the conviction. Sims v. State, 221 Ga. 190, 144 S.E.2d 103 (1965), rev'd on other grounds, 385 U.S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593, later appeal, 223 Ga. 465, 156 S.E.2d 65, rev'd on other grounds, 389 U.S. 404, 88 S. Ct. 523, 19 L. Ed. 2d 634 (1967).

- Because: (1) by repealing former provisions of O.C.G.A. § 5-3-30, the Georgia legislature intended that appeals from the probate court to the superior court would continue without special limitations on the right to a jury trial; and (2) de novo appeals to the superior court from the probate court were to be tried by the jury unless the right to a jury trial was waived, given that a widow specifically requested a jury trial, and hence did not waive the right, the trial court erred in denying the widow's request. Montgomery v. Montgomery, 287 Ga. App. 77, 650 S.E.2d 754 (2007).

Cited in Banigan v. Nelms, 106 Ga. 441, 32 S.E. 337 (1899); Key v. State, 207 Ga. 552, 63 S.E.2d 356 (1951); Hester v. Dixie Fin. Corp., 109 Ga. App. 204, 135 S.E.2d 504 (1964); Lowndes County v. Dasher, 229 Ga. 289, 191 S.E.2d 82 (1972); Sheet Metal Workers Int'l Ass'n v. Carter, 131 Ga. App. 176, 205 S.E.2d 715 (1974); Daniels v. McRae, 180 Ga. App. 732, 350 S.E.2d 317 (1986); State v. Speir, 189 Ga. App. 254, 375 S.E.2d 298 (1988); Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349, 395 S.E.2d 851 (1990); In re Estate of Taylor, 270 Ga. App. 807, 608 S.E.2d 299 (2004); Burnett v. State, 309 Ga. App. 422, 710 S.E.2d 624 (2011); Mason v. State, 353 Ga. App. 404, 837 S.E.2d 711 (2020).

When Appeal Lies

What is a judgment.

- Judgment is a decision or sentence of law, pronounced by the court and entered upon the court's docket, minutes, or record. A mere oral decision is not a judgment from which an appeal can be entered, until the decision has been put in writing and entered as such. Easterling v. State, 11 Ga. App. 134, 74 S.E. 899 (1912), later appeal, 12 Ga. App. 690, 78 S.E. 140 (1913).

- Court lacked jurisdiction over the caveator's appeal from a letter from the Director of Enforcement, Division of Securities & Business Regulation within the office of the Georgia Secretary of State informing the caveator that the Secretary had no jurisdiction over the caveator's complaints, because the letter was not a final decision or decree by a superior, state, or city court rendered in an actual case or controversy instituted in a court of record. Thierman v. Thierman, 234 Ga. App. 716, 507 S.E.2d 489 (1998).

- State may appeal decisions respecting bonds, recognizances, and other matters not strictly of criminal nature. City of Atlanta v. Stallings, 198 Ga. 510, 32 S.E.2d 256 (1944) (decided before enactment of Ch. 7 of this Title).

- Writ of error (see O.C.G.A. § 5-6-50) will lie direct to Supreme Court from decision of judge of city court in habeas corpus case. Barranger v. Baum, 103 Ga. 465, 30 S.E. 524, 68 Am. St. R. 113 (1898).

Verdict of jury, whether directed or by deliberation, is not an appealable judgment under any provisions of the Appellate Practice Act (see O.C.G.A. § 5-6-30 et seq.). Smith v. Sorrough, 226 Ga. 744, 177 S.E.2d 246 (1970).

Sustaining of motion for directed verdict is not an appealable judgment under any provisions of the Appellate Practice Act (see O.C.G.A. § 5-6-30 et seq.). Smith v. Sorrough, 226 Ga. 744, 177 S.E.2d 246 (1970).

Granting of ex parte order for injunction not reviewable. Johnson v. Stewart, 40 Ga. 167 (1869).

- Sustaining of demurrer (now motion to dismiss) to plea in abatement and overruling of the striking of the plea is not a final judgment in the case, and a direct bill of exceptions (see O.C.G.A. §§ 5-6-49 and5-6-50) assigning error thereon cannot be maintained. Jackson v. State, 76 Ga. 551 (1886); Hightower v. State, 22 Ga. App. 276, 95 S.E. 873 (1918).

Defendant, who was convicted of malice murder, felony murder, and other offenses, voluntarily, knowingly, and intelligently waived the defendant's right to appeal the defendant's conviction beyond filing a motion for a new trial, and the state supreme court dismissed an appeal which the defendant filed after the defendant's motion for a new trial was denied. Rush v. State, 276 Ga. 541, 579 S.E.2d 726 (2003).

- After a valid foreclosure sale of a Chapter 13 debtor's residence, O.C.G.A. § 5-6-33(a)(1) did not apply to create a right of appeal because foreclosure in Georgia did not involve any judgment, decision, or court decree. Bishop v. GMAC Mortg., LLC (In re Bishop), 470 Bankr. 633 (Bankr. M.D. Ga. 2011).

Only party to case below can bring case to appellate court. Epping v. Aiken, 71 Ga. 682 (1883); Booth v. Saunders, 128 Ga. 33, 57 S.E. 93 (1907); Edwards v. Gabrels, 42 Ga. App. 163, 155 S.E. 340 (1930).

Subsequently-named corporation lacked standing to appeal from orders against the previously-named corporation, as that corporation was not a party to the litigation, was not granted or denied intervention pursuant to a motion to amend with leave of court, and an attempted substitution by the predecessor was more than an attempt to correct a misnomer. Degussa Wall Sys. v. Sharp, 286 Ga. App. 349, 648 S.E.2d 687 (2007), cert. denied, 2007 Ga. LEXIS 701 (Ga. 2007).

As neither a law firm nor the attorneys representing an employee were parties to the employer/employee litigation, and the attorneys never sought to be added as parties and were denied that option, the firm had no standing to appeal from the trial court's order granting the attorney fees to the employee's attorneys; thus, the law firm's appeal was dismissed. Thaxton v. Norfolk Southern Corp., 287 Ga. App. 347, 652 S.E.2d 161 (2007).

Non-parties to the underlying case could not otherwise appeal a judgment; moreover, the attorneys lacked standing to challenge an award of attorney fees as a part of the judgment. Rice v. Champion Bldgs., Inc., 288 Ga. App. 597, 654 S.E.2d 390 (2007), cert. denied, 2008 Ga. LEXIS 326 (Ga. 2008).

Power of attorney appointed by estate administrator had no standing to challenge the trial court judgment denying the estate's petition for declaratory judgment and not finding the estate was the legal owner of certain real property because the power of attorney was not a party to the action, was never formally joined, nor was the holder of the power of attorney counsel for the estate administrator; therefore, the holder lacked standing to file an appeal on behalf of the estate. In re Estate of Wheeler, 349 Ga. App. 716, 824 S.E.2d 715 (2019).

Party not aggrieved by judgment of trial court is without legal right to except thereto, since the party has no just cause of the complaint. Cooper Motor Lines v. B.C. Truck Lines, 215 Ga. 195, 109 S.E.2d 689 (1959).

Only accused may appeal adverse judgment in criminal proceeding. City of Gainesville v. Butts, 127 Ga. App. 140, 193 S.E.2d 59 (1972) (decided before enactment of Ch. 7 of this Title).

Writ of error (see O.C.G.A. § 5-6-50) does not lie in criminal case at instance of state. State v. Johnson, 61 Ga. 640 (1878); City of Atlanta v. Stallings, 198 Ga. 510, 32 S.E.2d 256 (1944) (decided before enactment of Ch. 7 of this Title).

Judgment in favor of defendant in criminal case cannot be appealed by the state absent an express statutory provision. State v. Gossett, 214 Ga. 840, 108 S.E.2d 272 (1959) (decided before enactment of Ch. 7 of this Title).

- Decision of superior court on certiorari reversing judgment of a municipal court convicting one of a violation of a municipal ordinance is not subjected to review by this court and may not be appealed by the city. City of Moultrie v. Csiki, 71 Ga. App. 13, 29 S.E.2d 785 (1944); City of Gainesville v. Butts, 127 Ga. App. 140, 193 S.E.2d 59 (1972) (decided before enactment of Ch. 7 of this Title).

- Absent statute expressly so providing, state cannot appeal from order granting accused a new trial, or from order quashing conviction and sentence. State v. Gossett, 214 Ga. 840, 108 S.E.2d 272 (1959) (decided before enactment of Ch. 7 of this Title).

- If, however, information or proof reaches court of the surrender or recapture of an escaped appellant before dismissal, appeal is not dismissed summarily; but appellant must be in custody within jurisdiction of the State of Georgia. Golden v. State, 145 Ga. App. 36, 243 S.E.2d 303 (1978).

Fugitive from justice forfeits all right to have the aid of courts in reviewing errors claimed to have occurred in connection with the fugitive's case. Shelton v. State, 131 Ga. App. 786, 206 S.E.2d 654 (1974).

When plaintiff in error escapes, plaintiff's bill of exceptions will be dismissed (see O.C.G.A. §§ 5-6-49 and5-6-50) when the plaintiff fails to surrender. Staten v. State, 140 Ga. 110, 78 S.E. 766 (1913).

- Insurance company, which was deceased attorney's errors and omissions carrier, had the right to file an appeal from grant of letters of administration to appellee since such action implicitly denied the insurance company's caveat to the appellee's petition for appointment. General Accident Ins. Co. v. Wells, 179 Ga. App. 440, 346 S.E.2d 886 (1986).

Criminal Proceedings

Proceeding must involve possibility of fine or imprisonment.

- Proceedings instituted by state for violations of penal laws, and prosecutions by cities for infraction of criminal municipal ordinances, each of which involve the possibility of fine or imprisonment, are criminal proceedings not subject to review at instance of state or city. City of Atlanta v. Stallings, 198 Ga. 510, 32 S.E.2d 256 (1944) (decided before enactment of Ch. 7 of this Title).

- When superior court judge sustains certiorari sued out by probationer and orders the probationer discharged and relieved from all further liability in connection with orders and judgment of the judge of a city court, the proceedings, both in city court and in superior court, as to revocation of the probation order, constitute a criminal proceeding within the meaning of the section, thus the state has no right to except, and the Court of Appeals is without jurisdiction to entertain the case. State v. Thompson, 45 Ga. App. 530, 165 S.E. 310 (1932) (decided before enactment of Ch. 7 of this Title).

Prosecution for violation of city ordinance is a quasi-criminal action. City of Moultrie v. Csiki, 71 Ga. App. 13, 29 S.E.2d 785 (1944).

- When a defendant sentenced to life in prison asserted that the defendant's failure to file a timely appeal was not due to any negligence on the defendant's part, and wished to exercise the defendant's right to appeal, the defendant's motion for out-of-time appeal was improperly denied without further inquiry or a hearing. Randolph v. State, 220 Ga. App. 769, 470 S.E.2d 300 (1996).

- State did not have the right to appeal an order of the trial court disqualifying the district attorney from prosecuting a criminal defendant. State v. Smith, 268 Ga. 75, 485 S.E.2d 491 (1997).

- Prosecution to remove clerk of superior court under former Civil Code 1895, § 4366 (see O.C.G.A. § 15-6-82) was a quasi-criminal proceeding and upon acquittal cannot be reviewed. Cobb v. Smith, 102 Ga. 585, 27 S.E. 763 (1897).

- Appellate court denied the adoptive parents' motion to dismiss the appeal filed by a blood relative because the relative was a party and had standing to appeal as the relative was served with a summons, the relative filed a response to their petition, and the trial court ordered the relative to undergo a psychological examination and submit to a home evaluation. Parker v. Stone, 333 Ga. App. 638, 773 S.E.2d 793 (2015).

- Criminal defendant may waive the defendant's statutory right to appeal a conviction in return for the state's waiver of the right to seek the death penalty. Thomas v. State, 260 Ga. 262, 392 S.E.2d 520 (1990).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 231 et seq.

- 4 C.J.S., Appeal and Error, § 237 et seq. 24 C.J.S., Criminal Law, §§ 2327, 2340 et seq.

- Right to appeal from order releasing one in extradition proceedings, 5 A.L.R. 1156.

Power of legislature to require appellate court to review evidence, 24 A.L.R. 1267; 33 A.L.R. 10.

Payment of fine, serving sentence, or discharge on habeas corpus, as waiver of right to review conviction, 74 A.L.R. 638.

Power of appellate court to reconsider its decision after mandate has issued, 84 A.L.R. 579.

Right of public officer or board to appeal from a judicial decision affecting his or its order or decision, 117 A.L.R. 216.

Acceptance of probation, parole, or suspension of sentence as waiver of error or right to appeal or to move for new trial, 117 A.L.R. 929.

Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541.

Application for or acceptance of executive clemency as affecting appellate proceedings or motion for new trial, 138 A.L.R. 1162.

Exclusion of women from grand or trial jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction, 9 A.L.R.2d 661, 70 A.L.R.5th 587.

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

Appealability of order granting or denying right of intervention, 15 A.L.R.2d 336.

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

Reviewability, on appeal from final judgment, of interlocutory order, as affected by fact that order was separately appealable, 79 A.L.R.2d 1352.

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.

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

Validity and effect of criminal defendant's express waiver of right to appeal as part of negotiated plea agreement, 89 A.L.R.3d 864.

Appeal by state of order granting new trial in criminal case, 95 A.L.R.3d 596.

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.