Beatty v. Underground Atlanta, Inc.

McMurray, Judge. This case involves a proceeding against a tenant holding over in which a writ of possession was issued in favor of the alleged landlord on June 18,1976, because the tenant failed to pay all rent which became due following the issuance of the dispossessory warrant. The tenant had denied that he was holding over and that the plaintiff was the owner of the subject property. He also alleged in his answer that the Metropolitan Atlanta Rapid Transit Authority (MARTA) was the owner, and that he was currently paying the monthly rent, but under Code Ch. 99-37 (Georgia Relocation Assistance and Land Acquisition Policy Act of 1973; Ga. L. 1973, pp. 512, 520) the rent was clearly in excess of the fair rental value of the property to a short term occupier and the plaintiff is not entitled to any rent whatsoever. Argued January 18, 1977 Decided March 9, 1977. LaSonde & Walker, Jack LaSonde, David E. Allman, for appellant. Sutherland, Asbill & Brennan, John W. Bonds, Jr., for appellee. But instead of appealing the judgment of June 18, 1976, to this court, defendant tenant, on June 23, 1976, obtained a stay of the writ of possession from the Superior Court of Fulton County pending further proceedings of litigation in that court by and between the parties, including MARTA. Thereafter, on August 3, 1976, the stay order was modified, MARTA was required to pay certain funds into that court and upon compliance with that order by MARTA the defendant herein was to vacate the premises and deliver possession to MARTA no later than August 13, 1976. The notice of appeal to this court was filed on October 4,1976, appealing the order of June 18, 1976. The appeal is too late (see Code Ann. § 6-803 (a) (Ga. L. 1965, pp. 18, 21; 1966, pp. 493, 496; 1968, pp. 1072, 1077)), since it was not filed within 30 days of the final judgment. Thomas v. Allstate Ins. Co., 133 Ga. App. 193 (210 SE2d 361); Curry v. Hopper, 234 Ga. 642 (217 SE2d 155); Horton v. Horton, 235 Ga. 227 (219 SE2d 88). We know of no authority whereby the superior court under its equity jurisdiction could stay the filing of an appeal nor did the order restraining and enjoining further proceedings in the lower court (Civil Court of Fulton County) in any wise attempt to stay an appeal whereby the time in which to appeal would be tolled. Appeal dismissed. Bell, C. J., and Smith, J., concur.