Shelton v. Ervin

Deen, Presiding Judge. Mr. and Mrs. Ervin, appellees (and appellant’s former employers), were granted a money judgment on a complaint filed against Shelton in the Small Claims Court (now Magistrate’s Court) of Morgan County. Shelton appealed to the Morgan County Superior Court, and Mr. and Mrs. Ervin moved for summary judgment. Shelton filed [713] no responsive pleadings to the motion and did not appear for the hearing. After summary judgment was granted, he filed a motion to set aside the judgment, alleging that he had had no notice. Proof of notice having been adduced, the trial court denied the motion to set aside, and Shelton appeals from this judgment. Held: Decided February 1, 1988. Caleb B. Banks, for appellant. Eugene D. Butt, James E. Carter, for appellees. OCGA § 9-6-35 (a) (8), when read in conjunction with OCGA § 9-11-60 (d), mandates that an appeal from a judgment denying a motion to set aside be brought as a discretionary appeal. Scrutiny of the record of the instant appeal shows that this appeal, although belonging to a category of judgments on which one is required to follow the procedure of applying for a discretionary appeal, was nevertheless brought as a direct appeal, in contravention of OCGA § 9-6-35, supra. This court is without jurisdiction to review this appeal, and it must therefore be dismissed. In the Interest of J. E. P., 168 Ga. App. 30 (308 SE2d 712) (1983), aff'd 252 Ga. 520 (315 SE2d 416) (1984); Crews v. State, 175 Ga. App. 300 (333 SE2d 176) (1985). Appeal dismissed. Carley and Sognier, JJ., concur.