Officenters International Corp. v. Interstate North Associates
Officenters International Corp. v. Interstate North Associates
Opinion of the Court
Appellee filed this dispossessory action against appellant on November 23,1981. Neither the affidavit for writ of possession nor a subsequent amendment made any demand for relief other than “removal of the said defendant together with his property from said premises.” After hearing on December 18, 1981, the trial court ordered appellant to pay into the registry of the court by December 21 alleged past due rent totaling $340,370.17 as a condition to appellant’s continued possession pending final determination of the right to possession. Appellant failed to pay this sum by the date ordered, and on December 31 the trial court issued a writ of immediate possession, which was executed on January 7, 1982.
Subsequent to the issuance of the writ of possession, both parties filed various motions and initiated discovery. However, on February 11,1982, the trial court issued an order denying all pending motions and vacating all rulings made after December 31,1981, on the ground that the only issue in the case at the time the writ was issued concerned appellee’s claim for immediate possession. The trial court reasoned that the action was finally adjudicated with the issuance of the writ, since no issue remained for adjudication. See Leverette v. Moran, 153 Ga. App. 825, 827 (266 SE2d 574).
Appellant took an appeal from that order to the Supreme Court, raising several questions concerning the constitutionality of Code Ann. § 61-304 (OCGA § 44-7-54) and its application in this case. The
We agree with appellee that the trial court’s order of February 11,1982, was correct. The affidavit accompanying the dispossessory warrant stated an amount of past due rent but “made no demand for any rent due, and made no prayer for judgment in any amount. The allegation that the rent was unpaid was, in the context of this affidavit, nothing more than [appellee’s] cause of action for the writ, the gist of [its] complaint for eviction.” Leverette, supra, p. 826. “It is true that generally the tenant’s failure to pay into the registry determines only his right to remain on the premises pending determination of the other issues... but in this case the only issue was possession. When the writ issued on [December 31, 1981], the landlord had gotten all [it] asked for. The process was at an end. The [subsequent proceedings]... [were] not proper, for there was no suit pending and nothing [on which to proceed].” Id., pp. 827, 828. See also Mitchell v. Excelsior Sales & Imports, 243 Ga. 813 (2) (256 SE2d 785).
The trial court’s order of February 11 correctly determined that the December 31 writ constituted the final judgment in this action. This court lacks jurisdiction to review the merits of that final judgment, since no appeal was taken within 30 days of its entry. Code Ann. § 6-803 (a) (OCGA § 5-6-38 (a)); Stonecypher v. White, 161 Ga. App. 473 (289 SE2d 829). Furthermore, pursuant to Mitchell, supra, p. 816, “any issue as to appellant’s right to possession of the premises has become moot.”
Judgment affirmed.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s decision to affirm the tried court’s order of February 11, 1982, which order held that the proceedings in this case were, in effect, terminated on December 31, 1981 with the issuance of a writ of possession. The trial court and the majority in this case primarily rely upon Leverette v. Moran, 153 Ga. App. 825 (266 SE2d 574) (1980). The facts of this case are different from those in Leverette and therefore the holding in Leverette is not
I am authorized to state that Presiding Judge McMurray, Judge Sognier and Judge Pope join in this dissent.
Reference
- Full Case Name
- Officenters International Corporation of Atlanta v. Interstate North Associates
- Cited By
- 6 cases
- Status
- Published