Citibank (South Dakota) N.A. v. McCarr

McMurray, Presiding Judge. Plaintiff brought suit against defendant in the State Court of DeKalb County. It was alleged that defendant was indebted to plaintiff on an account in the amount of $1,282.75 principal, $830.59 interest, and attorney fees. No answer was filed by defendant. Thereafter, a default judgment was entered in favor of plaintiff in the principal amount of $82.75 (defendant had made partial payment toward the balance due), together with $830.59 interest and $317 attorney fees. Defendant moved to set aside the judgment on the ground that a nonamendable defect appeared “upon the face of the record or pleadings.” In this regard, it was alleged that the award of attorney fees should not be permitted to stand. The trial court granted defendant’s motion on June 7,1985, ruling: “IT IS HEREBY ORDERED that the portion of the judgment awarding the plaintiff attorney’s fees be set aside and stricken. It is further ordered that the balance of the judgment remain in full force and effect.” Thereafter, on June 17, 1985, [173] plaintiff filed a motion for reconsideration of the trial court’s order granting the motion to set aside. And, on June 27, 1985, plaintiff filed a motion for new trial. Plaintiff’s motions were denied by the trial court on August 16, 1985. Thereupon, on August 29, 1985, plaintiff filed a notice of appeal. Held: Decided May 22, 1986. Frederick J. Hanna, for appellant. Michael A. Kessler, for appellee. We must dismiss the appeal. Although the notice of appeal was filed within 30 days from the date of denial of the motion for new trial, “[w]here a motion for new trial is not a proper vehicle for review of a trial court’s action, the motion has no validity and will not extend the time for filing the notice of appeal.” Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447). In the case sub judice involving a ruling by the trial court on a motion to set aside, a motion for new trial was not the “proper vehicle for review of [the] trial court’s action.” Pillow v. Seymour, supra. We are without jurisdiction over this case because a timely notice of appeal was not filed. Appeal dismissed. Carley and Pope, JJ., concur.