Auld v. Weaver

Beasley, Judge. Defendant-attorney Auld appeals the judgment entered on a jury verdict in favor of plaintiff Weaver in this suit to recover monies, punitive damages, and expenses of litigation. The jury rendered its verdict on August 10, 1989, Appellant filed both a motion for new trial and a notice of appeal on September 5. Judgment on the verdict was entered on September 21. On October 2, appellant filed a second notice of appeal, from the judgment, and dismissed the first, which had in effect been from the verdict because there was no judgment when it was filed. The motion for new trial was denied on May 10, 1990. Appellee moves to dismiss the appeal on the basis that it was filed during pendency of the motion for new trial and unaccompanied by a certificate of immediate review. “ ‘ “A notice of appeal from the judgment, filed while a motion *783 for new trial is pending, and unaccompanied by a proper certificate for immediate review, confers no jurisdiction in the appellate court and results in a dismissal of the appeal.” ’ [Cit.]” Booker v. Amdur, 186 Ga. App. 276 (367 SE2d 94) (1988). Inasmuch as the operative notice of appeal was not filed within thirty days of the disposition of appellant’s motion for new trial, OCGA § 5-6-38 (a), the appeal must be dismissed. OCGA § 5-6-48 (b); Booker, supra. Compare Shirley v. State, 188 Ga. App. 357 (1) (373 SE2d 257) (1988) which discusses the rule that premature filing is not a ground of dismissal in criminal defendant appeals. As to civil appeals, “[t]he appeal is not brought to maturity or perfected by the subsequent overruling of the motion for new trial. [Cits.]” Home Ins. Co. v. Fort Valley Mills, 132 Ga. App. 15, 16 (207 SE2d 590) (1974). Decided September 4, 1990. Germano & Kimmey, Don E. Germano, for appellant. Kirby G. Bailey, for appellee. Appeal dismissed. Deen, P. J., and Pope, J., concur.