Willie C. Walton, II v. Aileen Walton

Court of Appeals of the State of Georgia ATLANTA,__________________ May 13, 2014 The Court of Appeals hereby passes the following order: A14A1471. WILLIE C. WALTON, II v. AILEEN WALTON. Willie C. Walton, II filed this direct appeal from the trial court’s order dismissing his notice of appeal in this garnishment case. We, however, lack jurisdiction. Although an order dismissing a notice of appeal generally is directly appealable, see Sotter v. Stephens, 291 Ga. 79, 81 ( 727 SE2d 484 ) (2012), it is well settled that the underlying subject matter of an appeal controls in determining the proper appellate procedure. Ledford v. Mobley, 321 Ga. App. 761, 762 ( 743 SE2d 461 ) (2013). “[A]n application for appeal is required when the underlying subject matter of the appeal is listed in OCGA 5-6-35 (a), even though the party may be appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34 (a).” Avren v. Garten, 289 Ga. 186, 192 (7) ( 710 SE2d 130 ) (2011). Under OCGA § 5-6-35 (a) (4), appeals in garnishment cases must be made by filing a timely application for discretionary appeal. See Lamb v. First Union Brokerage Svcs., 263 Ga. App. 733, 736 (1) ( 589 SE2d 300 ) (2003). Willie Walton’s failure to follow the discretionary appeal procedure deprives us of jurisdiction over this appeal, which is hereby DISMISSED. Court of Appeals of the State of Georgia 05/13/2014 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.