Pirkle v. Triplett ( 1980 )

153 Ga. App. 524 (1980) 265 S.E.2d 854

PIRKLE
v.
TRIPLETT.

59000.

Court of Appeals of Georgia.

Argued November 6, 1979. Decided February 19, 1980.

Maylon K. London, for appellant.

Troy R. Millikan, for appellee.

CARLEY, Judge.

Plaintiff-appellant brought suit for personal injuries sustained when his automobile struck defendant-appellee's bull on a public highway. On June 23, 1978, the jury returned a verdict for appellee. On June 28, 1978, judgment was entered on the verdict. On July 21, 1978, appellant filed a motion for judgment notwithstanding the verdict and a motion for new trial. On April 24, 1979, appellant amended his motion for new trial to include several special grounds. On July 31, 1979, the trial court overruled and denied appellant's motion for new trial. On August 20, 1979, appellant filed his notice of appeal from the order "overruling the Motion for New Trial as amended" specifying that nothing would be omitted from the record. On the record before us, there is no indication that the trial court has ever ruled on appellant's motion for judgment n. o. v.

Under Code Ann. § 6-803 the 30-day time limit for filing a notice of appeal is suspended by the filing of a motion for new trial or a motion for judgment n. o. v. A notice of appeal is prematurely filed when a motion for new trial or a motion for judgment n. o. v. or both motions remain undisposed of by the trial court and the appeal must be dismissed. Lamas Co., Inc. v. Baldwin, 118 Ga. App. 437 (164 SE2d 236) (1968). We believe the same result attaches where, as here, both motions are filed pursuant to Code Ann. § 81A-150 (b) and one is denied and the other remains pending. Such is the rule in federal appellate courts which have a "finality" requirement analogous to ours. Green v. Reading Co., 180 F2d 149 (3d Cir. 1950); Century Laminating, Ltd. v. Montgomery, 595 F2d 563 (10th Cir. 1979). It is also the rule in our sister state of Florida. Stupp v. Cone Bros. Contracting Co., 135 S2d 457 (Fla. App. 1961). Thus, since here the notice of appeal from the overruling of the motion for new trial was itself filed when the motion for judgment n. o. v. was pending in the trial court, there being no written disposition of that motion appearing in the record, this appeal is premature and must be dismissed. Locke v. State, 228 Ga. 545 (186 SE2d 738) (1972). "A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of ... but when... a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after entry of the order granting, overruling, or otherwise finally disposing of the motion." Code Ann. § 6-803 (a). See Moody v. Moody, 141 Ga. App. 185 (233 SE2d 385) (1977).

Appeal dismissed. Deen, C. J., and Shulman, J., concur.