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GARDNER et al. v. VILLA MONTE HOMES, INC. et al.
69515.
BENHAM, Judge.
Action for costs. Fulton Superior Court. Before Judge McKenzie.
Appellants sued appellees and the Housing Authority of the City of Atlanta for damages arising from the drowning death of Mrs. Gardner's two daughters. On appeal from a judgment in appellants' favor, this court reversed with direction that a new trial be granted to the Housing Authority and that judgment n.o.v. be granted to the other two defendants, the appellees in the present appeal. Upon the return of the remittitur to the trial court, appellees moved for a judgment against appellants for the costs of the appeal. The motion, based on OCGA 5-6-5 and on this court's decision in Marshall v. Fulton Nat. Bank, 152 Ga. App. 121 (1) (262 SE2d 448) (1979), revd. on other grounds, Fulton Nat. Bank v. Marshall, 245 Ga. 745 (267 SE2d 225) (1980), was granted, resulting in a judgment against appellants for $1,951.75. This appeal is from that judgment.
Appellees have filed a motion to dismiss this appeal for noncompliance with OCGA 5-6-35. That section provides a procedure for invoking the discretion of the appellate court to hear appeals in certain specified classes of cases, and reads in pertinent part as follows: "(a) Appeals in the following cases shall be taken as provided in this Code section: . . . (6) Appeals in all actions for damages in which the judgment is $2,500 or less . . ." Id. The appellants in the present appeal did not follow the procedure established by the quoted section.
In response to appellees' motion to dismiss, appellants argue that OCGA 5-6-35 (a) (6) does not apply to their appeal, because the judgment did not arise from an action for damages by appellees. The essence of that argument is that the section applies only when a plaintiff is successful in the trial court and the judgment granted to that plaintiff is for less than $2,500.
Sidney F. Wheeler, William A. Dinges, Lenwood A. Jackson, J. Loren Fowler, for appellees.
W. Pitts Carr, David H. Pope, for appellants.
DECIDED MARCH 1, 1985 -- REHEARING DENIED MARCH 15, 1985 -- CERT. APPLIED FOR.
Thursday May 21 16:30 EDT


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