2020 Georgia Code
Title 5 - Appeal and Error
Chapter 6 - Certiorari and Appeals to Appellate Courts Generally
Article 2 - Appellate Practice
§ 5-6-40. Enumeration of Errors

The appellant and cross appellant shall file with the clerk of the appellate court, at such time as may be prescribed by its rules, an enumeration of the errors which shall set out separately each error relied upon. The enumeration shall be concise and need not set out or refer to portions of the record on appeal. It shall be served upon the appellee or cross appellee in the manner prescribed in Code Section 5-6-32, need not have approval of the trial court, and when filed shall become a part of the record on appeal. The appellate court, by rule, may permit the enumeration to be made a part of the brief.

(Ga. L. 1965, p. 18, § 14; Ga. L. 1965, p. 240, § 2; Ga. L. 1968, p. 1072, § 8.)

- Briefs of appellant and cross appellant, Rules of the Supreme Court of the State of Georgia, Rule 39.

Service on opposing parties, Rules of the Supreme Court of the State of Georgia, Rule 43.

Argument and citation of authority, Rules of the Supreme Court of the State of Georgia, Rule 45.

Judgments deemed included and presented, Rules of the Supreme Court of the State of Georgia, Rule 46.

Filing of enumeration of errors, Rules of the Court of Appeals of the State of Georgia, Rule 5.

Structure and content of appellate brief, Rules of the Court of Appeals of the State of Georgia, Rule 15.

- For annual survey article discussing developments in criminal law, see 52 Mercer L. Rev. 167 (2000). For article, "'May It Please the Court:' Tips on Effective Appellate Advocacy from Start to Finish," see 16 (No. 1) Ga. St. B.J. 28 (2010). For note discussing the reluctance of Georgia courts to grant appeals when overruled motion for new trial not enumerated as error in light of Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968), see 5 Ga. St. B.J. 269 (1968). For comment on Crider v. State, 115 Ga. App. 347, 154 S.E.2d 743 (1967), see 4 Ga. St. B.J. 265 (1967).

ANALYSIS

• General Consideration
• What May Be Enumerated As Error
• Content and Form of Enumeration
• Filing of Enumeration

General Consideration

Editor's notes.

- In light of the similarity of the issues dealt with by the provisions, decisions under former Penal Code 1910, former Civil Code 1910, § 6332, former Code 1933, § 6-901 as it read prior to revision by Ga. L. 1965, p. 18, § 14, and former Code 1933, § 6-1607 are included in the annotations below.

Appellate review is limited to grounds presented to and ruled upon by trial court. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

Objection urged below, but not argued on appeal, must be treated as abandoned. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

Although presented in brief, any error not enumerated shall be disregarded. Rider v. State, 226 Ga. 14, 172 S.E.2d 318 (1970); Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970).

Assignments of error in brief cannot take place of enumeration of errors required by section. Benfield v. State, 224 Ga. 139, 160 S.E.2d 398 (1968); Craig v. State, 130 Ga. App. 689, 204 S.E.2d 307 (1974).

Even though alleged error was raised at trial, an adverse ruling received, and it is argued in brief, appellate courts will not consider it unless it is within enumerated error. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

Court of Appeals has no jurisdiction to consider grounds which though argued are not enumerated as error according to O.C.G.A. § 5-6-40. Sanders v. Hughes, 183 Ga. App. 601, 359 S.E.2d 396, cert. denied, 183 Ga. App. 907, 359 S.E.2d 396 (1987).

Matter raised in appellate brief will not be considered when the issue was not enumerated as error. Dean v. State, 163 Ga. App. 29, 293 S.E.2d 492 (1982); Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988).

Alleged error raised for first time on brief, cannot be considered by appellate courts, for enumeration must fairly encompass error alleged to have been made at trial. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

- Although appellate court could refuse to address any error not set out separately, the court may in the court's sound discretion elect to review any one or more of the assertions of error contained in a single enumeration and treat the rest as abandoned. Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839, 418 S.E.2d 119 (1992).

When an appellant asserts more than one error within a single enumeration, the appellate court in the court's discretion may elect to review none, or one or more, of the errors asserted within the single enumeration. Hall v. State, 235 Ga. App. 44, 508 S.E.2d 703 (1998).

Provision of Ga. Const. 1983, Art. VI, Sec. I, Par. IV that enables a court to take action to protect the efficacy of the court's judgment from a party's actions that endanger that judgment is not authority for an appellate court to protect an appellate adjudication from further appellate review by declining to reach the merits of an allegation of error sufficiently set forth pursuant to the Appellate Practice Act. Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

Enumerations of error may not be amended after time for filing has expired. Burke v. State, 153 Ga. App. 769, 266 S.E.2d 549 (1980); Parham v. State, 166 Ga. App. 855, 305 S.E.2d 599 (1983).

- When the defendants failed to enumerate an argument on appeal, the appellate court would not consider the appeal. Smith v. Saulsbury, 286 Ga. App. 322, 649 S.E.2d 344 (2007).

Any attempt to amend or enlarge an enumeration upon appeal will not be permitted. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

Enumerations of error cannot be enlarged by statements in brief to include issues not made in former. Leniston v. Bonfiglio, 138 Ga. App. 151, 226 S.E.2d 1 (1976).

Burden is on party alleging error to show the error affirmatively by the record. Moye v. State, 127 Ga. App. 338, 193 S.E.2d 562 (1972).

Error must appear from record sent to appellate court by the clerk of the trial court. Moye v. State, 127 Ga. App. 338, 193 S.E.2d 562 (1972).

Any error shown upon record must stand or fall on the error's own merits and is not aided by accumulative effect of other claims of error. Hess Oil & Chem. Corp. v. Nash, 226 Ga. 706, 177 S.E.2d 70 (1970), cert. denied, 403 U.S. 922, 91 S. Ct. 2241, 29 L. Ed. 2d 700 (1971).

When defendant fails to provide transcript, the appellate court must assume the trial court's findings were authorized by the evidence. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

- Portion of the testimony by a witness at trial contained in the defendant's brief but unobjected to at the trial may not be asserted as error for the first time on appeal. Pope v. Triangle Chem. Co., 157 Ga. App. 386, 277 S.E.2d 758 (1981).

Cited in Stanford v. Evans, Reed & Williams, 221 Ga. 331, 145 S.E.2d 504 (1965); Davenport v. Hall, 221 Ga. 543, 145 S.E.2d 558 (1965); Hayes v. Strickland, 112 Ga. App. 567, 145 S.E.2d 728 (1965); Undercofler v. McLennan, 221 Ga. 613, 146 S.E.2d 635 (1966); Banks v. Banks, 221 Ga. 626, 146 S.E.2d 636 (1966); Cade v. Burson, 221 Ga. 715, 146 S.E.2d 761 (1966); Chambliss v. Hall, 113 Ga. App. 96, 147 S.E.2d 334 (1966); Jones v. Spindel, 113 Ga. App. 191, 147 S.E.2d 615 (1966); Coile v. Finance Co. of Am., 221 Ga. 863, 148 S.E.2d 328 (1966); Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556 (1966); Puckett v. Puckett, 222 Ga. 653, 151 S.E.2d 767 (1966); Hutchinson v. Georgia Power Co., 115 Ga. App. 666, 155 S.E.2d 643 (1967); Calhoun v. Patrick, 116 Ga. App. 303, 157 S.E.2d 31 (1967); Aetna Life Ins. Co. v. Greene, 116 Ga. App. 783, 159 S.E.2d 87 (1967); DeFee v. Williams, 224 Ga. 354, 162 S.E.2d 440 (1968); Kelley v. Holy Family Hosp. & Medical Ctr., Inc., 224 Ga. 641, 163 S.E.2d 716 (1968); Kay v. Vaughan, 224 Ga. 875, 165 S.E.2d 131 (1968); Dawson v. Garner, 119 Ga. App. 469, 167 S.E.2d 741 (1969); Smith v. Smith, 225 Ga. 474, 169 S.E.2d 820 (1969); Samples v. Hatcher, 225 Ga. 483, 170 S.E.2d 27 (1969); Brown v. Smith, 225 Ga. 496, 170 S.E.2d 28 (1969); Hatton v. State, 226 Ga. 18, 172 S.E.2d 427 (1970); Hull v. Campbell, 130 Ga. App. 637, 204 S.E.2d 312 (1974); Parris v. Slaton, 131 Ga. App. 92, 205 S.E.2d 67 (1974); Taylor v. Columbia County Planning Comm'n, 232 Ga. 155, 205 S.E.2d 287 (1974); Banks v. State, 131 Ga. App. 215, 205 S.E.2d 520 (1974); Lowe v. Royal Crown Cola Co., 132 Ga. App. 37, 207 S.E.2d 620 (1974); Doyal v. Ben O'Callaghan Co., 132 Ga. App. 336, 208 S.E.2d 136 (1974); Pritchett v. State, 134 Ga. App. 254, 214 S.E.2d 180 (1975); Brown v. State, 236 Ga. 333, 223 S.E.2d 642 (1976); Grant v. State, 139 Ga. App. 793, 229 S.E.2d 674 (1976); Nipper v. Crisp County, 141 Ga. App. 312, 233 S.E.2d 270 (1977); Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588, 239 S.E.2d 387 (1977); Duke v. State, 147 Ga. App. 101, 248 S.E.2d 176 (1978); Haynes v. Hoffman, 164 Ga. App. 236, 296 S.E.2d 216 (1982); Georgia Dep't of Labor v. Sims, 164 Ga. App. 856, 298 S.E.2d 562 (1982); Strickland v. State, 165 Ga. App. 197, 300 S.E.2d 537 (1983); Eunice v. Citicorp Homeowners, Inc., 167 Ga. App. 335, 306 S.E.2d 395 (1983); Whisenhunt v. State, 172 Ga. App. 742, 324 S.E.2d 570 (1984); Hester v. Baker, 180 Ga. App. 627, 349 S.E.2d 834 (1986); Holmes v. State, 180 Ga. App. 787, 350 S.E.2d 497 (1986); California Fed. Sav. & Loan Ass'n v. Hudson, 185 Ga. App. 384, 364 S.E.2d 582 (1987); Palmer v. State, 186 Ga. App. 892, 369 S.E.2d 38 (1988); Bryant v. BMC of Ga., Inc., 188 Ga. App. 124, 372 S.E.2d 280 (1988); Floyd v. State, 188 Ga. App. 24, 372 S.E.2d 287 (1988); Johncox v. State, 189 Ga. App. 188, 375 S.E.2d 139 (1988); Brown v. State, 190 Ga. App. 324, 378 S.E.2d 908 (1989); Seligman v. Milam Bldrs., Inc., 191 Ga. App. 224, 381 S.E.2d 401 (1989); Hoffer v. State, 192 Ga. App. 378, 384 S.E.2d 902 (1989); Boatright v. State, 192 Ga. App. 112, 385 S.E.2d 298 (1989); Seabolt v. Edghill, 192 Ga. App. 715, 386 S.E.2d 376 (1989); Fulton County v. Collum Properties, Inc., 193 Ga. App. 774, 388 S.E.2d 916 (1989); Sentry Ins. v. Majeed, 194 Ga. App. 276, 390 S.E.2d 269 (1990); Murphy v. State, 195 Ga. App. 878, 395 S.E.2d 76 (1990); Allain v. State, 202 Ga. App. 706, 415 S.E.2d 315 (1992); Campbell v. State, 207 Ga. App. 902, 429 S.E.2d 538 (1993); Johnson v. State, 212 Ga. App. 190, 441 S.E.2d 509 (1994); Obiozor v. State, 213 Ga. App. 523, 445 S.E.2d 553 (1994); Evans v. DOT, 226 Ga. App. 74, 485 S.E.2d 243 (1997); Green v. State, 226 Ga. App. 467, 486 S.E.2d 691 (1997); Griffin v. State, 228 Ga. App. 200, 491 S.E.2d 437 (1997); Wozniuk v. Kitchin, 229 Ga. App. 359, 494 S.E.2d 247 (1997); Oliver v. State, 232 Ga. App. 816, 503 S.E.2d 28 (1998); Gibson v. State, 233 Ga. App. 838, 505 S.E.2d 63 (1998); Felix v. State, 234 Ga. App. 509, 507 S.E.2d 172 (1998); Cantrell v. Northeast Ga. Medical Ctr., 235 Ga. App. 365, 508 S.E.2d 716 (1998); Rolleston v. Cherry, 237 Ga. App. 733, 521 S.E.2d 1 (1999); Krieger v. Walton County Bd. of Comm'rs, 241 Ga. App. 373, 525 S.E.2d 147 (1999); Dole v. State, 256 Ga. App. 146, 567 S.E.2d 756 (2002); Walker v. State, 285 Ga. App. 529, 646 S.E.2d 734 (2007); Levy v. Reiner, 290 Ga. App. 471, 659 S.E.2d 848 (2008); Johnson v. State, 290 Ga. App. 255, 659 S.E.2d 638 (2008); Thomas v. State, 291 Ga. App. 795, 662 S.E.2d 849 (2008); Ray v. State, 292 Ga. App. 575, 665 S.E.2d 345 (2008); Bee v. State, 294 Ga. App. 199, 670 S.E.2d 114 (2008); Biederbeck v. Marbut, 294 Ga. App. 799, 670 S.E.2d 483 (2008); Collins v. State, 300 Ga. App. 657, 686 S.E.2d 305 (2009); Willis v. Willis, 288 Ga. 577, 707 S.E.2d 344 (2010); Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714 (2012); Simon v. State, 320 Ga. App. 15, 739 S.E.2d 34 (2013); Straus v. Renasant Bank, 326 Ga. App. 271, 756 S.E.2d 340 (2014); Rivers v. South Auction & Realty, 351 Ga. App. 179, 830 S.E.2d 636 (2019), cert. denied, 2020 Ga. LEXIS 159 (Ga. 2020).

Only alleged errors occurring in lower court may be enumerated in appeal, and a statute may not be constitutionally attacked for first time in enumerations of error so as to give the Supreme Court jurisdiction of the appeal. Kohl v. Manning, 223 Ga. 755, 158 S.E.2d 375 (1967).

Any ruling or judgment of court affecting judgment appealed from may be enumerated as error by the appellant. Allen v. Rome Kraft Co., 114 Ga. App. 717, 152 S.E.2d 618 (1966).

Overruling of motion for new trial does affect judgment on verdict, and may be enumerated. Allen v. Rome Kraft Co., 114 Ga. App. 717, 152 S.E.2d 618 (1966).

- Error of law has as its basis a specific ruling made by the trial court. In order for an appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

- Because the arguments supporting a position concerning a legal ruling are not themselves legal rulings, they do not have to be enunciated in the enumeration of errors in order to merit appellate consideration. Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

- Remand was required when the defendants adequately set out in the defendants' enumeration of errors that the defendants sought appellate review of the trial court's denial of the defendants' motion to suppress and the Court of Appeals did not address all the arguments raised by the defendants in support of the defendants' enumerated error. Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

Content and Form of Enumeration

1. In General

Each enumeration may contain only one error. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980); Garvey v. State, 176 Ga. App. 268, 335 S.E.2d 640 (1985); Hayes v. State, 189 Ga. App. 39, 375 S.E.2d 114 (1988).

On appeal each enumeration of error should address only one error. Pope v. Triangle Chem. Co., 157 Ga. App. 386, 277 S.E.2d 758 (1981).

When there are two separate bases for the argument made, each ground should be separately enumerated. Bounds v. State, 207 Ga. App. 665, 428 S.E.2d 673 (1993). But see Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

When the defendant asserts several errors in one enumeration, the court will address only one asserted error, especially when the defendant raises new grounds for some of the defendant's objections for the first time on appeal. Rocha v. State, 234 Ga. App. 48, 506 S.E.2d 192 (1998).

- It is desirable that each enumeration be explicit, precise, intelligible, unambiguous, unmistakable, and unequivocal. But, a degree of generality may be tolerated. This is not to be used as a sword against an appellee to enlarge or amend an enumeration of error, or to encompass bases of objection not fairly included within legitimate parameters urged at trial, but is a shield to accommodate appeal of specific allegation of error. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

Each enumeration should be concise. Dean v. State, 163 Ga. App. 29, 293 S.E.2d 492 (1982).

Subject matter of enumeration need be indicated only in a general way. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

- Correct rule with respect to the legal sufficiency of any enumeration of error is that it need be only sufficient to point out the error complained of. Childers v. Tauber, 160 Ga. App. 713, 288 S.E.2d 5 (1981).

- In order to take into account the duty imposed by O.C.G.A. § 5-6-48(f), when the enumeration of errors filed in the appellate court identifies the trial court ruling asserted to be error, the error relied upon is sufficiently "set out separately" to require the appellate court to shoulder the court's constitutional responsibility to be a court of review. Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

- Enumerations of error that were not in compliance with appellate rules would be considered in deference to the appellant's pro se status. Bennett v. Moody, 225 Ga. App. 95, 483 S.E.2d 350 (1997).

- Court of Appeals may, in the exercise of the court's sound discretion, elect to review any one or more of the several assertions of error contained within a single enumeration and to treat the remaining assertions of error therein as abandoned. West v. Nodvin, 196 Ga. App. 825, 397 S.E.2d 567 (1990); Reid v. State, 237 Ga. App. 690, 515 S.E.2d 201 (1999). But see Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

When several assertions of error are contained within a single enumeration, the court may elect to review any one or more of them, and treat the remaining assertions as abandoned. Mays v. Farah U.S.A., Inc., 236 Ga. App. 1, 510 S.E.2d 868 (1999).

When an appellant argues more than one error within a single enumeration, the appellate court in the court's discretion may elect to review none of the errors enumerated in violation of O.C.G.A. § 5-6-40, or may elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned. Robinson v. State, 200 Ga. App. 515, 408 S.E.2d 820 (1991); Wingfield v. State, 229 Ga. App. 75, 493 S.E.2d 235 (1997). But see Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

In the exercise of the court's discretion, the appellate court may elect to review any one or more of several assertions of error contained within a single enumeration, and treat the remaining assertions therein as abandoned. Phillips v. State, 236 Ga. App. 744, 512 S.E.2d 32 (1999).

Multiple assertions of errors in single enumeration were not reviewed. White v. State, 221 Ga. App. 860, 473 S.E.2d 539 (1996); In re D.A.D., 224 Ga. App. 527, 481 S.E.2d 262 (1997); Duggan v. State, 225 Ga. App. 291, 483 S.E.2d 373 (1997); Stubbs v. Harmon, 226 Ga. App. 631, 487 S.E.2d 91 (1997).

- When it is apparent from notice of appeal, record, enumeration of errors, or any combination of the foregoing, what errors are sought to be asserted upon appeal, an appeal shall be considered notwithstanding that enumeration of errors fails to enumerate clearly the errors sought to be reviewed. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

Enumerated errors may still be ruled insufficient or held not to be meritorious from the record, even though the errors are in the proper form. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

- Arguments raised in the appellate brief are not made issues on appeal unless they are properly enumerated as error; thus, a food vendor's argument in an appeal in a personal injury action that a certain jury charge should have been given was not properly preserved for review where the issue was raised in the vendor's brief but was not enumerated as error. Imperial Foods Supply, Inc. v. Purvis, 260 Ga. App. 614, 580 S.E.2d 342 (2003).

2. Application

Vague enumeration may still be sufficient.

- Motion to strike the appellant's enumeration of error should be denied when, though hazy, the motion still conforms to practically unlimited looseness authorized by section. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

- When enumerated error is so general and does not contain a key which the brief clarifies to identify specific error enumerated, and neither record nor notice of appeal assists in determining which one specific error is enumerated, appellate court will consider only the general grounds as to sufficiency of facts to support judgment. MacDonald v. MacDonald, 156 Ga. App. 565, 275 S.E.2d 142 (1980).

- Motion to dismiss appeal is not meritorious when based upon the fact that enumeration of errors refers to the wrong date as to order it complains of but when notice of appeal refers to correct date in record. Langford v. First Nat'l Bank, 122 Ga. App. 210, 176 S.E.2d 484 (1970).

- Requirement that enumeration of error set out separately errors relied upon does not make necessary a separate numbering as to each of various numbered demurrers (now motions to dismiss) sustained, but an enumeration of error on sustaining of such demurrers setting forth each demurrer by its paragraph number is sufficient. Mull v. Emory Univ., Inc., 114 Ga. App. 63, 150 S.E.2d 276 (1966). But see Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).

- In appeal from judgment of trial court overruling appellant-condemnor's motion for new trial, mere enumeration of judgment as error, without separately enumerating as error each ground of such motion, is sufficient compliance with section when motion as amended is included in the record and when the appellant's brief argues each ground separately. City of Douglas v. Rigdon, 116 Ga. App. 306, 157 S.E.2d 66 (1967).

- Although good practice would call for enumerating as error the inadequacy of the jury's verdict for damages, the question of inadequacy is sufficiently raised for consideration by the court when overruling of general grounds of motion for new trial is enumerated as error, and question of inadequacy of verdict is presented and argued in briefs. Kirkman v. Miller, 116 Ga. App. 78, 156 S.E.2d 558 (1967).

Mere general enumeration to denial of amended motion for new trial is insufficient. Dean v. State, 163 Ga. App. 29, 293 S.E.2d 492 (1982).

- When error alleged is in granting or denying of a new trial, one assignment of error is sufficient to reach all grounds of the motion on which grant or refusal was based. National Union Fire Ins. Co. v. Ozburn, 42 Ga. App. 393, 156 S.E. 305 (1930) (decided under former Civil Code 1910, § 6332).

- When the plaintiff's failure to recover is dependent not upon insufficiency of evidence, but upon insufficiency of the petition, manifestly an assignment of error even in a direct bill of exceptions (see O.C.G.A. §§ 5-6-49,5-6-50) in which insufficiency of the petition can be reached, which excepts only to sufficiency of evidence and does not except to sufficiency of the petition, is insufficient to present for decision any question respecting insufficiency of the petition to set out a cause of action; although it would be otherwise, perhaps, if it appeared affirmatively from the petition that the plaintiff was not entitled to recover. Huson v. Farmer, 53 Ga. App. 131, 185 S.E. 119 (1936) (decided under former Code 1933, § 6-901).

- Enumeration of error upon admission of evidence complaining that the admission created a false and prejudicial issue, in order to be complete, must set out how evidence was prejudicial and what false issue was created. Essig v. Cheves, 75 Ga. App. 870, 44 S.E.2d 712 (1947) (decided under former Code 1933, § 6-1607).

Complaint that illegal rulings were made without setting out nature of rulings, is insufficient as an assignment of error. Harbour v. Rittenbaum, 101 Ga. App. 878, 115 S.E.2d 573 (1960) (decided under former Code 1933, § 6-901).

General exception to entire charge is too broad when whole charge is not erroneous. Cheek v. State, 22 Ga. App. 788, 97 S.E. 203 (1918) (decided under former Penal Code 1910, § 1097).

Assignment of error based on statement of fact which is denied in answer cannot be considered. Jones v. City of Rome, 15 Ga. App. 41, 82 S.E. 593 (1914) (decided under former Penal Code 1910, § 1097).

- In an appeal from contempt orders entered in a child custody case, a parent and the parent's attorney failed to comply with O.C.G.A. § 5-6-40 and Ga. Ct. App. R. 10, 25(a), and 25(c)(1); the brief and enumerations of error were rambling and difficult to follow and those arguments that were unsupported by authority were deemed abandoned. The court considered claims to the extent the court could ascertain the arguments. Murphy v. Murphy, 330 Ga. App. 169, 767 S.E.2d 789 (2014).

Failure to file enumeration of errors, as required by section, requires dismissal of appeal. Lowery v. Smith, 225 Ga. 814, 171 S.E.2d 500 (1969).

Failure to file an enumeration of errors requires dismissal of an appeal, and arguments raised in an appellate brief are not made issues on appeal unless the issues are properly enumerated as error. Miles v. Emmons, 234 Ga. App. 487, 507 S.E.2d 762 (1998).

In a suit pursuant to O.C.G.A. § 36-91-90 et seq. seeking to recover against a payment bond for amounts due for labor and materials provided on a construction project on private property, the court dismissed the subcontractors' appeal because the subcontractors failed to set forth an enumeration of errors as required by O.C.G.A. § 5-6-40. Complete Wiring Solutions, LLC v. Astra Group, Inc., 335 Ga. App. 723, 781 S.E.2d 597 (2016).

Georgia Court of Appeals and the Supreme Court of Georgia have made clear that failure to file an enumeration of errors requires dismissal of an appeal and that arguments raised in the appellate brief are not made issues on appeal unless the arguments are properly enumerated as error. Furthermore, the Georgia Court of Appeals will not comb through the appellate brief to attempt to discern what errors the appellant seeks to assert on appeal. Complete Wiring Solutions, LLC v. Astra Group, Inc., 335 Ga. App. 723, 781 S.E.2d 597 (2016).

Failure to file enumeration within time specified may be deemed as failure to complete appeal. Watson v. Stynchcombe, 228 Ga. 193, 184 S.E.2d 580 (1971); Seigler v. Smith, 228 Ga. 270, 185 S.E.2d 377 (1971).

- Absent filing of enumeration of errors within time prescribed or, in the alternative, absent grant of extension of time on motion made before expiration of such time, appeal has not been perfected and must be dismissed. Thomas v. State, 118 Ga. App. 748, 165 S.E.2d 477 (1968).

Defendant's motion to amend the defendant's out-of-time appeal, presenting additional grounds, was denied because the motion was filed 49 days after the appeal was docketed, and enumerations of error must be filed within 20 days of docketing. Leverette v. State, 291 Ga. 834, 732 S.E.2d 255 (2012).

- When enumeration of errors was filed within time required for filing briefs, fact that brief was not marked "filed" within that time due to nonpayment of costs does not invalidate filing of enumeration of errors. Norton Realty & Loan Co. v. City of Gainesville, 224 Ga. 166, 160 S.E.2d 819 (1968).

When providential cause is shown, late filing of enumerations of error will not necessarily cause dismissal of appeal. Thomas v. State, 118 Ga. App. 748, 165 S.E.2d 477 (1968).

Enumeration of error must be filed at time brief is filed. Herrin v. Herrin, 225 Ga. 692, 171 S.E.2d 143 (1969).

- Incorporation of enumerations of error in brief fails to comply with this rule and presents nothing for review by appellate court. Russell v. State, 225 Ga. 371, 169 S.E.2d 124 (1969).

- Requirement for filing copy of enumeration of error with clerk of trial court is not jurisdictional, and failure to follow this procedural requirement will not vitiate an appeal. Calloway v. State, 115 Ga. App. 158, 154 S.E.2d 291 (1967).

Failure to file copy of enumeration of errors with clerk of trial court is not ground for dismissal of appeal. Stark v. Lanier, 115 Ga. App. 229, 154 S.E.2d 289 (1967); Norton Realty & Loan Co. v. City of Gainesville, 224 Ga. 166, 160 S.E.2d 819 (1968).

Although the state failed to file, or include in the state's brief as Part 2, an enumeration of errors as required by Ga. Ct. App. R. 25(a)(2) and O.C.G.A. §§ 5-6-40,5-6-48(f) and O.C.G.A. § 5-6-30 required the liberal construction of the Appellate Practice Act, O.C.G.A. § 5-6-30 et seq., so as to avoid dismissal of any case or refuse to consider any points raised therein. Because the court could ascertain the state's argument, it was considered. State v. Freeman, 349 Ga. App. 94, 825 S.E.2d 538 (2019).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 575 et seq.

- 4 C.J.S., Appeal and Error, § 554 et seq.

- Will questions which might have been, but were not, raised on prior appeal or error, be considered on subsequent appeal or error, 1 A.L.R. 725.