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Lawskills.com Georgia Caselaw
SMITH et al. v. HOBBS et al.
A89A1349.
BENHAM, Judge.
Untimely appeal. Harris Superior Court. Before Judge Whisnant.
Appellants filed an action in quia timet, seeking to establish title to 39.76 acres of land. Adopting the report of the special master, the trial court entered a judgment adverse to appellants on February 27, 1987. Appellants' motion for rehearing, filed June 15, 1988, was denied on June 28, 1988, and appellants filed a notice of appeal to the Supreme Court and a motion for out-of-time appeal on December 19, 1988. Appellees sought dismissal of appellants' appeal on the ground that the notice of appeal was untimely and, after a hearing, the trial court dismissed the appeal, having determined that there was no justifiable reason for appellants' delay in filing the notice of appeal. Appellants appealed to the Supreme Court from the trial court's dismissal of their appeal, and the Supreme Court transferred the case to this court.
"A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . ." OCGA 5-6-38 (a). Appellant's original notice of appeal, filed December 19, 1988, was not filed within 30 days of the February 27, 1987, judgment of which appellants sought review. Even if a motion for rehearing extended the time for filing a notice of appeal (but see OCGA 5-6-38 (a)), appellant's original notice of appeal was not filed within 30 days of June 28, 1988, the date of the denial of appellants' motion for rehearing. Appellants' contention that an out-of-time appeal may be entertained, under proper circumstances, to prevent the denial of due process is without merit since "[s]uch appeals are allowed only in criminal cases under certain circumstances. . . ." American Druggists Ins. Co. v. Harris, 253 Ga. 535, n.1 (322 SE2d 496) (1984). See also Carpets 'N Colors v. Hollycraft Carpets, 177 Ga. App. 534 (339 SE2d 793) (1986). The trial court did not err in dismissing appellants' untimely notice of appeal.
Wallace K. Askew, for appellees.
Betty Smith, pro se.
B. W. Smith, pro se.
DECIDED NOVEMBER 9, 1989.
Thursday May 21 11:36 EDT


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