Steele v. Cincinnati Insurance Company
Steele v. Cincinnati Insurance Company
Opinion of the Court
On October 21, 1982, in the Superior Court of Fulton County, appellee Cincinnati Insurance Company’s motion for directed verdict was granted, and judgment was entered on October 25,1982.
In Smith and Hurst, supra, the notice of appeal stated that it was from an order sustaining a motion for directed verdict. We ruled that the sustaining of a motion for directed verdict is not an appealable judgment and said that dismissal was proper.
In Gillen v. Bostick, 234 Ga. 308 (215 SE2d 676) (1975), we reviewed an order holding appellant in wilful contempt of court where the trial court’s order finding appellant in contempt was dated December 20,1974. Appellant’s notice of appeal was filed January 7, 1975, but judgment was not entered until January 15, 1975. We recognized there that under prior decisions of this court (however neither Smith nor Hurst were addressed) such a premature filing of a notice of appeal would be ineffective to vest jurisdiction of the appeal in this court. Id. at 310. However, we went on to conclude that in light of the language of the Appellate Practice Act, OCGA § 5-6-30 (Code Ann. § 6-905), proposing liberal construction of the rules of procedure so as to bring about a decision on the merits of every case appealed and to avoid dismissal, those earlier cases were overruled. We also discussed and accepted the reasoning of Markham v. Holt, 369 F2d 940 (5th Cir. 1966) and 9 Moore’s Federal Practice 119, § 110.08[2] (1974), which agreed that the rule requiring judgment and entry of judgment before an appeal can be taken is better interpreted to prevent loss of the right of appeal than to facilitate loss.
We think that similar reasoning can be profitably applied to the case before us. There is no evidence that in Gillen the appellant misnamed the action appealed from and labeled it an order instead of a judgment entered on the order as Steele did here. Nor did Steele file his notice before entry of judgment, as did the appellant in Gillen. Otherwise, however, these cases are sufficiently analogous to support consistent holdings and, despite the decisions in Hurst and Smith, we conclude that the better result is to reverse the Court of Appeals and follow the route marked by Gillen toward less technical and more
Judgment reversed.
Concurring Opinion
concurring.
I concur in the result reached in this case but do not believe it is necessary to overrule Smith v. Sorrough, 226 Ga, 744 (177 SE2d 246) (1970) and Hurst v. Starr, 226 Ga. 42 (172 SE2d 604) (1970). The general principles announced in those decisions are sound. An appellate court needs to know what is being appealed. It is also important that not every order entered on an interlocutory basis be the proper subject matter for an appeal. However, in this case, it is obvious that the losing party intended to appeal the final outcome in the trial court. As a matter of fact, a final judgment was entered. The appealing party simply failed to use the right nomenclature. I consider this to be an appeal from the final judgment in the trial court.
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