Ovestco Corp. v. Bowen

Per curiam. On October 4, 1993, the trial court granted summary judgment to all of the defendants. A notice of appeal was timely filed by plaintiffs on November 1, and they paid the court costs on November 5. A motion to dismiss the appeal under OCGA § 5-6-48 (c) was filed by defendants on February 2, 1994, and it was granted on March 24. Between the filing of the motion and the trial court’s action on it, the plaintiffs caused the record to be transmitted to this court by advising the clerk that “there is no transcript of evidence” and instructing that the appeal be transmitted “as soon as possible.” The appeal was docketed in this court on February 17. That record did not contain the pending motion and, of course, it did not contain the order which was subsequently entered. Transmitting it was simply a clerical mistake, of which this court was unaware because the pending motion was not included. In March the defendants/appellees filed a motion in this court to dismiss the appeal, and appellants responded. Thereafter two supplemental records were transmitted to this court, on November 2 and 4, 1994. One included the motion to dismiss the appeal and one contained the trial court’s order granting that motion. Nevertheless, a panel of this court remanded the case on November 14 for a ruling on the motion. On reconsideration there is a dissent which would hold that the motion to dismiss pending in this court should be denied and the merits of the grant of summary judgment should be addressed and, presumably, decided. We disagree with both positions for the following reasons. With respect to the former remand, there is no “pending” motion in the trial court so there is no purpose to be served by remanding the case to that court. With respect to the dissent, there is no notice of appeal from the dismissal of the appeal. If appellants desired review of that order, they were required to appeal from it. Court of Appeals Rule 47; Minor v. Minor, 173 Ga. App. 428 (327 SE2d 229) (1985), and cases cited therein. An example of such an appeal is Johnston v. Ga. Pub. Suc. Comm., 209 Ga. App. 224 (433 SE2d 65) (1993). It would then have been appropriate thereafter to consolidate the two appeals for [122] resolution. If the appeal from the dismissal were affirmed, the appeal from the grant of summary judgment would be moot. On the other hand, if the appeal from the dismissal were reversed, summary judgment would be reviewable on the merits. But all we have is an unappealed order of dismissal, with a motion in this court filed by the parties who prevailed below on their dismissal motion, seeking dismissal anew in this appellate court. The appeal should be dismissed because there is a dismissal of it by the trial court, unappealed from. This case differs from Turner v. Taylor, 179 Ga. App. 574 (1) (346 SE2d 920) (1986), because it is evident from appellants’ actions and reference to Rule 47 that they sought to avoid the trial court’s ruling on the motion. Instructing the clerk to transmit the record when there is a pending motion filed by the opposing party cannot be permitted to deprive the trial court of jurisdiction. Appeal dismissed. Pope, C. J., Beasley, P. J., Andrews and Blackburn, JJ., concur. McMurray, P. J., and Johnson, J., concur specially. Birdsong, P. J., Smith and Ruffin, JJ., dissent.