Turner v. Binswanger

Birdsong, Presiding Judge. Appellants/defendants, David Eugene Turner and Melody Turner, by notice of appeal filed July 3, 1991, appeal solely from the trial court’s “Order Denying Defendants’ Motion for New Trial and Amending Judgment” filed June 4, 1991; they file four enumerations of error in support thereof. The record reflects that following entry of a “Final Order,” filed August 14, 1990, appellants did not file a notice of appeal thereto, but filed an untimely motion for new trial on September 14, 1990. On February 27, 1991, appellants filed a “Request to Have Out-Of-Time Motion for New Trial Considered,” and prayed they be allowed to proceed with an extraordinary motion for new trial. The trial court granted permission for filing the extraordinary motion, but denied it. An appeal from the denial of an extraordinary motion for new trial, when as in the case sub judice is separate from any original appeal, must be made by application. OCGA § 5-6-35 (7). As appellants have failed to make application for discretionary appeal of the denial of their extraordinary motion for new trial, this appeal must be dismissed for want of jurisdiction. Franklyn Gesner &c. v. Ketcham, 186 Ga. App. 853 (368 SE2d 774); Martin v. State, 185 Ga. App. 145, 146 (1) (363 SE2d 765). Appeal dismissed. Pope and Cooper, JJ., concur.