2021 Georgia Code
Title 5 - Appeal and Error
Chapter 6 - Certiorari and Appeals to Appellate Courts Generally
Article 2 - Appellate Practice
§ 5-6-46. Operation of Notice of Appeal as Supersedeas in Civil Cases; Requirement of Supersedeas Bond or Other Security; Fixing of Amount; Procedure Upon No or Insufficient Filing; Effect of Bond as to Liability of Surety; Punitive Damages

1. In civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant and it shall not be necessary that a supersedeas bond or other form of security be filed; provided, however, that upon motion by the appellee, made in the trial court before or after the appeal is docketed in the appellate court, the trial court shall require that supersedeas bond or other form of security be given with such surety and in such amount as the court may require, conditioned for the satisfaction of the judgment in full, together with costs, interest, and damages for delay if the appeal is found to be frivolous. When the judgment is for the recovery of money not otherwise secured, the amount of the bond or other form of security shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the court after notice and hearing and for good cause shown fixes a lesser amount. When the judgment determines the disposition of the property in controversy as in real actions, trover, and actions to foreclose mortgages and other security instruments, or when such property is in the custody of the sheriff or other levying officer, or when the proceeds of such property or a bond for its value are in the custody or control of the court, the amount of the supersedeas bond or other form of security shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay.
2. Notwithstanding subsection (a) of this Code section, in any civil case under any legal theory, including cases involving individual, aggregated, class-action, or otherwise joined claims, the amount of supersedeas bond or other form of security to be furnished during the pendency of all appeals or discretionary reviews of any judgment granting legal, equitable, or any other form of relief or damages, including compensatory, special, punitive, exemplary, or other damages, in order to stay execution of the judgment during the entire course of appellate review by any court shall be set in accordance with applicable laws or court rules, but the total supersedeas bond or other form of security that is required of all appellants collectively shall not exceed $25 million regardless of the value of the judgment.
3. If supersedeas bond or other form of security is not filed within the time specified by the judge, or if the bond or other form of security filed is found insufficient, a bond or other form of security may be filed at such time as may be fixed by the trial court.
4. By entering into an appeal or supersedeas bond or other form of security given pursuant to this Code section, the surety submits himself or herself to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond may be served. The surety's liability may be enforced on motion without the necessity of notice or an independent action.
5. Nothing in this Code section shall deprive the superior courts of their separate power to grant supersedeas under paragraph (1) of Code Section 15-6-9 nor deprive the appellate courts of the power to grant supersedeas in such manner as they may determine to meet the ends of justice.
6. If an appellee proves by a preponderance of the evidence that a party bringing an appeal, for whom the supersedeas bond or other form of security has been limited pursuant to subsection (b) of this Code section, is dissipating or secreting its assets, or diverting assets outside the ordinary course of business to avoid payment of a judgment, a court may require the appellant to post a bond or other form of security in an amount not to exceed the total amount of the judgment.

(Laws 1845, Cobb's 1851 Digest, pp. 449, 453; Code 1863, § 4171; Code 1868, § 4203; Ga. L. 1870, p. 416, § 1; Code 1873, § 4263; Ga. L. 1880-81, p. 120, § 1; Code 1882, § 4263; Civil Code 1895, § 5552; Civil Code 1910, § 6165; Ga. L. 1917, p. 63, § 1; Code 1933, § 6-1002; Ga. L. 1965, p. 18, § 8; Ga. L. 1994, p. 346, § 1; Ga. L. 2000, p. 228, § 2; Ga. L. 2001, p. 4, § 5; Ga. L. 2004, p. 980, § 1; Ga. L. 2005, p. 60, § 5/HB 95.)

- Supersedeas, Rules of the Supreme Court of the State of Georgia, Rule 12.

Filing notice of appeal and cross appeal, Rules of the Supreme Court of the State of Georgia, Rule 38.

Supersedeas, Rules of the Court of Appeals of the State of Georgia, Rule 50.

- Ga. L. 2000, p. 228, § 1, not codified by the General Assembly, provides: "The Act shall be known and may be cited as the 'Civil Litigation Improvement Act of 2000.' "

Ga. L. 2004, p. 980, § 4, not codified by the General Assembly, provides that the amendment by that Act shall apply to cases pending on or filed on or after May 17, 2004.

- For article, "The Appellate Procedure Act of 1965," see 1 Ga. St. B.J. 451 (1965). For article, "1966 Amendments to the Appellate Procedure Act of 1965," see 2 Ga. St. B.J. 433 (1966). For article surveying appellate practice and procedure, see 34 Mercer L. Rev. 3 (1982). For annual survey of appellate practice and procedure, see 40 Mercer L. Rev. 51 (1988). For note on 2000 amendment of this Code section, see 17 Ga. St. U.L. Rev. 37 (2000).

ANALYSIS

• General Consideration
• Applicability of Automatic Supersedeas Provision
• Effect of Supersedeas
• Supersedeas Bond

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, §§ 292 et seq., 421.

2 Am. Jur. Pleading and Practice Forms, Appeal and Error, § 262.

- 4 C.J.S., Appeal and Error, § 477 et seq., 531 et seq.

- Reversal as affecting purchase of property involved in suit, pending appeal without supersedeas, 36 A.L.R. 421.

Failure of obligee in supersedeas bond to accept protection thereof or his act inconsistent therewith as affecting liability on bond, 53 A.L.R. 807.

Amount named in appeal or supersedeas bond as the maximum limit of sureties' liability or as a limitation of the amount which they undertake shall by paid on the judgment appealed from, 87 A.L.R. 257.

Appeal from award of injunction as stay or supersedeas, 93 A.L.R. 709.

Liability of surety on appeal or supersedeas bond as affected by death of principal before decision on appeal, 94 A.L.R. 971.

Claim of obligee or surety on supersedeas bond, or other bond given in course of litigation, as entitled to preference over mortgage bondholders of railroad or other corporation, 113 A.L.R. 494.

Measure and items of damages recoverable upon a suspending or supersedeas bond on appeal from an order appointing a receiver or confirming such appointment, 117 A.L.R. 1274.

Right to stay without bond or other security pending appeal from judgment or order against executor, administrator, guardian, trustee, or other fiduciary who represents interests of other person, 119 A.L.R. 931.

Liability on supersedeas bond which was legally insufficient to effect stay, where enforcement of judgment was in fact suspended, 120 A.L.R. 1062.

When appeal is or is not deemed to have been prosecuted "with effect" or "to effect" within condition of supersedeas bond, 163 A.L.R. 410.

Attorneys' fees paid by appellee in resisting unsuccessful appellate review as damages recoverable on appeal bond, 37 A.L.R.2d 525.

Stay or supersedeas on appellate review in mandamus proceeding, 88 A.L.R.2d 420.

Taxable costs and disbursements as including expenses for bonds incident to steps taken in action, 90 A.L.R.2d 448.

Effect of supersedeas or stay on antecedent levy, 90 A.L.R.2d 483.

Measure and amount of damages recoverable under supersedeas bond in action involving recovery or possession of real estate, 9 A.L.R.3d 330.

Appealability of order directing payment of money into court, 15 A.L.R.3d 568.