Eades v. Keinonen

Quiluan, Presiding Judge. The record reveals that the judgment questioned by this appeal was entered on November 4, 1976. The trial judge had issued a rule nisi on the motion for new trial on December 6, 1976, but the motion was not filed until December 7, 1976. Appeal was taken on August 9, 1977 after the overruling of appellant’s motion for new trial on July 29,1977. "It is essential to the validity of a motion for a new trial that it should be filed with the clerk of the trial court within the time prescribed by law; and a motion which has not been so filed should be dismissed, notwithstanding the judge before whom the case is tried may have granted a rule nisi during the term and within the time fixed by law for filing the motion.” Peavy v. Peavy, 167 Ga. 219 (1) (145 SE 55). Since a timely filed motion for new trial was a prerequisite to the validity of the appeal, the failure to file such motion within the prescribed time subjects the appeal to appellee’s motion to dismiss. Venable v. Block, 141 Ga. App. 523 (233 SE2d 878). Appeal dismissed. Webb and McMurray, JJ., concur.