Title 5 — Appeal and Error

Official Code of Georgia Annotated — Title 5. Appeal and Error

Snapshot of the Georgia code as mirrored by FindLaw, current as of 2024-03-28.

Chapter 3 Superior and State Court Appellate Practice

§ 5-3-1

This chapter shall be known and may be cited as the “Superior and State Court Appellate Practice Act.”

§ 5-3-2

(a) The General Assembly finds that many appeals from a lower judicatory to a superior or state court result in dismissal on complex procedural grounds and not a decision on the merits.

(b) It is the intent of the General Assembly in enacting this chapter to:

(1) Provide a single, modern, and uniform procedure called a “petition for review” for appealing a decision made by a lower judicatory to a superior or state court, as authorized by the laws and the Constitution of this state;

(2) Increase access to justice through the greater resolution of appeals on the basis of substantive issues rather than on complex procedural grounds; and

(3) Retain the limited appellate jurisdiction of state courts prescribed in the Constitution of Georgia and Code sections outside of this chapter.

(c) Consistent with the laws and the Constitutions of Georgia and the United States, the courts shall:

(1) Construe the provisions of this chapter broadly so as to render decisions based on the merits of each case and avoid dismissal of any case or refusal to consider any points raised therein unless such dismissal or refusal is expressly required by statute;

(2) Construe any petition for review filed under this chapter according to its substance, merit, and function and not merely its style, form, or title; and

(3) Not construe this chapter to expand the limited appellate jurisdiction of state courts prescribed in the Constitution of Georgia and Code sections outside of this chapter.

§ 5-3-3

As used in this chapter, the term:

(1) “Article 6 probate court” means a probate court with expanded jurisdiction as provided in Article 6 of Chapter 9 of Title 15.

(2) “Clerk” means a clerk of court or an individual who acts as the functional equivalent of a clerk of court if a lower judicatory does not have an official clerk of court.

(3) “Decision” means any formal or informal adjudication, decision, determination, judgment, order, ruling, or other act of a judicatory that is judicial or quasi-judicial in nature.

(4) “Final judgment” means a decision of a lower judicatory in a case that is no longer pending in a lower judicatory in which a petitioner has:

(A) Exhausted all appeals or administrative remedies available in the lower judicatory; and

(B) Satisfied all conditions precedent to appeal provided by law, including, but not limited to, the conditions provided for in Code Section 33-2-26.

(5) “Judicatory” means any court, official, board, tribunal, commission, municipal or county authority, council, or similar body exercising judicial or quasi-judicial powers authorized by law. The term ‘judicatory’ shall include an arbitrator, administrative law judge, mediator, or similar adjudicator authorized by law to act on behalf or at the request of any public official or body.

(6) “Lower judicatory” means any judicatory:

(A) Inferior in authority to the superior and state courts; and

(B) Subject to the appellate jurisdiction of the superior or state courts as provided by the laws and the Constitution of this state.

(7) “Perfect” or “perfected” means to take all legal steps needed to complete service of process.

(8) “Person” means an individual, corporation, association, partnership, other organization, or other entity.

(9) “Petition for review” means any request for review of a final judgment filed in a reviewing court by a petitioner, including, but not limited to, any request for review formerly titled as a petition for writ of certiorari, petition for writ of mandamus, petition for writ of prohibition, or notice of appeal.

(10) “Reporting” shall have the same meaning as the term “court reporting” as defined in paragraph (4) of Code Section 15-14-22.

(11) “Respondent” means a person who is adverse to the petitioner and a party to the dispute underlying the final judgment rendered by the lower judicatory. Except for reasons other than having rendered the final judgment under review, the term ‘respondent’ shall not include any judge, official, or member of the lower judicatory that rendered the final judgment under review. If there is no party adverse to the petitioner, the respondent shall be:

(A) For quasi-judicial decisions rendered by a state official, board, tribunal, commission, authority, council, or similar body, the respondent shall be the State of Georgia;

(B) For quasi-judicial decisions rendered by a municipal official, board, tribunal, commission, authority, council, or similar body, the respondent shall be the corresponding municipality; and

(C) For quasi-judicial decisions rendered by a county or local school system official, board, tribunal, commission, authority, council, or similar body, the respondent shall be the corresponding county or local school system.

(12) “Reviewing court” means a superior or state court reviewing a final judgment pursuant to this chapter.

§ 5-3-4

(a) Except as provided in subsection (b) of this Code section, the superior and state courts shall have appellate jurisdiction pursuant to this chapter over a final judgment of a lower judicatory.

(b) The superior courts shall not have appellate jurisdiction pursuant to this chapter over any state court. The state courts shall not have appellate jurisdiction pursuant to this chapter over any superior court. In addition, neither a superior court nor a state court shall have appellate jurisdiction pursuant to this chapter over the following courts or matters:

(1) Juvenile courts;

(2) The Municipal Court of Columbus;

(3) The Civil Court of Macon-Bibb County;

(4) The Civil Court of Richmond County;

(5) The Georgia State-wide Business Court;

(6) A civil case in an Article 6 probate court;

(7) An order appointing a temporary administrator; and

(8) Any other court from which an appeal directly to the Court of Appeals or the Supreme Court is authorized.

(c) Except as provided in subsection (g) of Code Section 5-3-17, this chapter shall preempt any local law or any locally enacted law, ordinance, regulation, rule, or procedure in conflict with this chapter governing an appeal of a final judgment to a reviewing court.

§ 5-3-5

(a) Except as provided in subsection (b) of this Code section or otherwise provided by law, a reviewing court shall:

(1) Review only matters raised in the record of the proceeding in the lower judicatory;

(2) Accept the findings of fact and credibility of the lower judicatory unless they are clearly erroneous;

(3) Accept a decision regarding an issue within the sound discretion of the lower judicatory unless such a decision was an abuse of discretion;

(4) Determine whether the final judgment was sustained by sufficient evidence; and

(5) Review questions of law de novo.

(b) A reviewing court shall conduct a de novo proceeding under this chapter if a de novo proceeding is specified by law. Cases reviewed under this subsection shall be heard by the reviewing court without a jury unless a jury trial is ordered by the reviewing court and authorized by law.

(c) A demand for a jury trial under this chapter shall be filed in the reviewing court within 30 days after filing a petition for review.

§ 5-3-6

(a) A petitioner invokes the appellate jurisdiction of a reviewing court under this chapter by filing a petition for review with the clerk of the reviewing court.

(b) The consent of the lower judicatory shall not be required for the filing of a petition for review.

§ 5-3-7

(a) Except as otherwise prescribed by law, superior and state court appellate practices and procedures not prescribed in this chapter shall be governed by the applicable superior or state court rules and orders of the reviewing court not in conflict with this chapter.

(b) Except as otherwise prescribed by law, a petitioner shall file a petition for review with the clerk of the reviewing court within 30 days after the final judgment of the lower judicatory is:

(1) Signed and notice of the final judgment has been provided to all parties, if the lower judicatory does not have a clerk; or

(2) Filed or recorded, whichever first occurs, if the lower judicatory has a clerk.

(c) Except as provided in subsection (d) of this Code section, all parties to the proceedings in the lower judicatory are parties in the reviewing court.

(d) Except for reasons other than having rendered the final judgment under review, any judge, official, or member of a lower judicatory that rendered the final judgment under review shall not be a party, defendant, or respondent in a petition for review. To correct such error, the reviewing court shall:

(1) Require a petitioner to amend the petition for review; or

(2) Upon the reviewing court's own motion, order the erroneously named judge, official, or member of a lower judicatory dismissed.

(e) Except as otherwise required by law, a petition for review shall contain in substantially similar form the following:

(1) A caption stating the name of the petitioner and the name of the respondent, if any;

(2) The title “Petition for review to superior court” or “petition for review to state court” below the caption;

(3) A body that includes the following:

(A) The statement: “(name of petitioner), the petitioner named above, petitions the (Superior or State) Court of (name of county) for review of the final judgment rendered by (name of lower judicatory) on (date) with the following case number designated by the lower judicatory: (lower judicatory case number).”;

(B) A concise statement of the final judgment being appealed;

(C) A brief statement describing any existing recording, transcript, or other record of evidence in the lower judicatory; and

(D) If the case before the lower judicatory is a criminal case, then a brief statement of the offense and sentence prescribed by the lower judicatory, if any, including whether the petitioner is confined in jail or otherwise incarcerated pending the appeal; and

(4) The name, mailing address, telephone number, and email address, if any, of:

(A) The attorney for the petitioner; or

(B) The petitioner, if the petitioner is not represented by an attorney.

(f) Failure to provide the information required by subsection (e) of this Code section shall be an amendable defect, and such defect shall be cured as directed by the reviewing court.

(g) The petitioner shall serve a copy of the petition for review on all parties within five days after filing the petition for review in the reviewing court.

(h) The petitioner shall serve the lower judicatory with a copy of the filed petition for review within five days after filing the petition for review in the reviewing court. The copy of the petition for review served on the lower judicatory shall contain the case number assigned by the reviewing court. If the lower judicatory has a clerk, the copy of the petition for review shall be deemed served on the lower judicatory by service of a copy of the petition for review on the clerk.

§ 5-3-8

(a) The respondent shall file a response to a petition for review with the reviewing court within 30 days after being served with a copy of the petition for review. If a de novo proceeding is required as specified in subsection (b) of Code Section 5-3-5, the response shall include any counterclaim, cross appeal, defense, or third-party claim asserted by the respondent.

(b) A cross appeal or counterclaim shall not require a response, unless one is required by order of the court, and shall automatically stand denied.

(c) A reply, if any, shall be filed by the petitioner within 30 days after being served with a copy of the respondent's response. If a de novo proceeding is required as provided in subsection (b) of Code Section 5-3-5, the petitioner's reply shall include any counterclaim, cross appeal, defense, or third-party claim asserted by the petitioner.

(d) A party may amend a petition for review, response, or reply under this chapter as a matter of course and without leave of the reviewing court at any time before the entry of a pretrial order or before a hearing on the merits is held by the reviewing court, whichever shall first occur. Thereafter, a party may amend a petition for review, response, or reply only by leave of the reviewing court or by written consent of each adverse party. Such leave shall be freely given by the reviewing court if justice so requires.

(e) A party shall serve a copy of any pleading filed with the reviewing court on all parties to the proceeding.

§ 5-3-9

(a) The reviewing court may issue such orders and writs as may be necessary to aid in its jurisdiction and manage court proceedings under this chapter.

(b) The reviewing court shall grant continuances and enter such other orders as may be necessary to permit a just and expeditious review of a petition for review.

(c) After a petition for review is filed in the reviewing court, the reviewing court shall:

(1) Establish filing deadlines for any necessary documents; and

(2) Schedule any necessary proceedings or hearings.

(d) If there is more than one party plaintiff or party defendant in the case before the lower judicatory, any one or more of such parties may file a petition for review pursuant to this chapter regardless of whether other parties join in or consent to such petition for review; provided, however, that upon appeal, all parties in the case before the lower judicatory shall be bound by the final decision of the reviewing court; and provided, further, that, if damages are awarded upon such appeal, the damages shall only be recovered against the party appealing and the appealing party's security, if any, and not against a party failing or refusing to appeal.

(e) The monetary limitation provided for in paragraph (5) of subsection (a) of Code Section 15-10-2 shall not apply to any decision rendered by the reviewing court under this chapter.

§ 5-3-10

(a) Except as otherwise provided by law, service of process under this chapter shall be made in the following manner:

(1) A party's attorney or agent authorized to receive service shall be served with any document, unless:

(A) Direct service on a party is ordered by the reviewing court; or

(B) A specific manner of service is otherwise required by law;

(2) Service of any document shall be made in person, by mail, or electronically if consent to electronic service is given as provided in subsection (b) of this Code section;

(3) Proof of service shall be shown by:

(A) Acknowledgment of the attorney or party served; or

(B) A certificate of service from the attorney, party, or other person perfecting service;

(4) The certificate of service provided for in this subsection shall:

(A) Be attached to the original of the document to be served;

(B) Be taken as prima-facie proof of service; and

(C) Read substantially as follows: “I do certify that (number of copies) of the attached document(s) have been furnished to (name of party served) by (delivery, mail, or email) on (date delivered, mailed, or emailed)”;

(5) Service of any document may be perfected either before or after filing such service with the clerk. If service is made by mail, it shall be deemed perfected on the day it was deposited in the mail. If service is perfected by mail, three days shall be added to any deadline required for a response, to allow for mailing;

(6) If the address of any party is unknown and the party is not represented by an attorney of record, service may be perfected on the party by mail directed to the last known address of the party; and

(7) Service may be waived or acknowledged either before or after filing.

(b) A person may consent to being served with pleadings electronically in a petition for review as provided for in subsection (f) of Code Section 9-11-5.

§ 5-3-11

(a) Any party requesting a filing deadline extension from the reviewing court shall do so before the expiration of the existing filing period in effect, whether prescribed or extended.

(b) The reviewing court shall only grant one filing deadline extension not to exceed 30 days for the filing of a petition for review under subsection (b) of Code Section 5-3-7. The reviewing court may grant such filing deadline extensions for other documents as may be necessary to permit a just and expeditious review of a petition for review.

(c) The clerk of the reviewing court shall promptly serve all parties and the clerk of the lower judicatory with a copy of:

(1) Any extension granted under this Code section; and

(2) The corresponding motion filed to request such extension.

§ 5-3-12

(a) Except for a final decision on the merits, a reviewing court shall not dismiss a petition for review unless the reviewing court finds one or more of the following:

(1) The petition for review was not filed within the time prescribed or extended;

(2) The reviewing court lacks jurisdiction;

(3) The question presented by the petitioner is moot;

(4) The absence of a justiciable controversy;

(5) The failure of a petitioner to prosecute; or

(6) The failure of a petitioner to comply with the provisions of this chapter or any court rule or order.

(b) The reviewing court shall not immediately dismiss a petition for review because of any defect in the petition for review, bond, or affidavit of indigence, or because of the failure of the lower judicatory to transmit any document.

(c) The reviewing court shall give the petitioner a reasonable opportunity to amend a petition for review, bond, or affidavit of indigence for the purpose of curing any defect. The reviewing court may impose such filing deadlines for amendments under this subsection as may be necessary to permit a just and expeditious review of a petition for review.

(d) The reviewing court shall not immediately dismiss a petition for review for failure to perfect service on any party if the party obligated to perfect service shows due diligence in attempting to timely perfect service.

§ 5-3-13

(a) A petitioner shall file a petition for review in the superior or state court where venue and jurisdiction are proper as prescribed by the laws and the Constitution of this state.

(b) Upon a finding by a lower judicatory, a reviewing court, the Court of Appeals, or the Supreme Court that venue is improper or jurisdiction is lacking for any petition for review, the clerk of the applicable court shall promptly transfer a petition for review to a court where venue and jurisdiction are proper in accordance with the rules and procedures applicable to the transferring court.

§ 5-3-14

(a) In civil cases and misdemeanor criminal cases, a lower judicatory may require the audio or video recording, reporting, or transcribing of the evidence and proceedings in the lower judicatory on terms prescribed by the lower judicatory.

(b) Except as provided in subsection (c) of this Code section, in civil cases where a transcript of the evidence and proceedings in the lower judicatory has not been prepared and a transcript is necessary to conduct a review under this chapter, the petitioner shall prepare a transcript at the petitioner's expense from recollection or otherwise only if the petitioner is financially able to pay the costs of transcribing.

(c) In civil cases, a lower judicatory may require the parties to share the cost of reporting or transcribing the evidence and proceedings in the lower judicatory; provided, however, that a lower judicatory shall not require a party to share such costs if that party is financially unable to pay. If the lower judicatory determines that any or all of the parties are financially unable to pay such costs, the lower judicatory, in its discretion, may authorize the trial of the case to go unreported.

(d) Any party shall have the right to have any criminal or civil case in a lower judicatory reported or transcribed at the party's own expense.

(e) If a proceeding in a lower judicatory is reported, the court reporter shall report and transcribe all:

(1) Motions;

(2) Colloquies;

(3) Objections;

(4) Rulings;

(5) Evidence, whether admitted or stricken on objection or otherwise;

(6) Copies or summaries of all documentary evidence;

(7) The charge of the court; and

(8) Other proceedings before the court.

(f) If a proceeding in a lower judicatory is reported, the lower judicatory shall ensure that all matters listed in subsection (e) of this Code section are included in any transcript or record transferred to the reviewing court.

(g) If matters in a lower judicatory are not reported, such as objections to oral argument, misconduct of the jury, or other like instances, and a party requests a transcript of such matters, the lower judicatory shall order a transcript be prepared from recollection or otherwise and included as a part of the record transferred to the reviewing court.

(h) A transcript of the proceedings in a lower judicatory shall not be reduced to narrative form unless all parties agree; but if the transcript of the evidence and proceedings is not available and the transcript is prepared from recollection, such a transcript may be prepared in narrative form.

(i) If a court reporter transcribes the evidence and proceedings in the lower judicatory, the court reporter shall complete the transcript and file the original and one copy of the transcript with the clerk of the lower judicatory along with the court reporter's certificate attesting to its correctness. Upon filing of the transcript by the court reporter, the transcript shall become part of the record.

(j) The clerk of the lower judicatory shall ensure that a true copy of the transcript of the evidence and proceedings in the lower judicatory is included in the record transmitted to the reviewing court under this chapter.

(k) If the parties cannot agree regarding whether the transcript or record truly or fully discloses what transpired in the proceedings in the lower judicatory, the lower judicatory shall schedule a hearing with notice to all parties to resolve the dispute and conform the record to the truth.

(l) A transcript of evidence and proceedings that is prepared from recollection with an attached statement that all parties agree to its contents shall carry the same authority as a transcript prepared by a court reporter; but if the parties cannot agree regarding the correctness of a transcript prepared from recollection, the lower judicatory shall decide whether it is correct. If the lower judicatory is unable to recall what transpired in the case under review, the lower judicatory shall issue a decision stating that fact. The lower judicatory's decision under this subsection is final and not subject to review.

(m) If anything material to any party is omitted from or misstated in the record under review, the parties may stipulate, or the lower judicatory may direct, that the omission or misstatement be corrected before or after the record is transmitted to the reviewing court. The clerk of the lower judicatory shall promptly transmit to the reviewing court any correction of the record made after the record is transmitted to the reviewing court.

(n) The lower judicatory may transmit a supplemental record to the reviewing court.

(o) The lower judicatory or the reviewing court may order the clerk of the lower judicatory to send up any original documents, exhibits, or other items in the case under review. The reviewing court shall return such original documents, exhibits, or other items to the lower judicatory after the final disposition of the case under review.

(p) If a lower judicatory does not allow a party to file a document for inclusion in the record for a petition for review, such party may file the document in the reviewing court with an attached notation of the lower judicatory's disallowance. In such case, the document shall become part of the record under review.

(q) If all parties agree, in lieu of a transcript of the evidence and proceedings in the lower judicatory, they may file in the lower judicatory a stipulation of the case showing how the question under review arose and was decided along with a statement of facts. In such cases, the parties shall provide sufficient information in the stipulation and statement of facts to enable the reviewing court to conduct a review. Such stipulation and statement of facts must be approved by the lower judicatory prior to transmission to the reviewing court as part of the record.

§ 5-3-15

(a) Upon being served with a copy of the petition for review and unless otherwise ordered by the reviewing court, the clerk of the lower judicatory shall retain the original of the corresponding record and transmit a true copy of the record to the reviewing court within 30 days, or within fewer days if otherwise required by law, after the copy of the petition for review is served on the clerk of the lower judicatory.

(b) If known or reasonably believed to be the case, the clerk in the lower judicatory shall notify the reviewing court if a petitioner in a criminal case is confined in jail or otherwise incarcerated at the time the record is transmitted from the lower judicatory. Such notice shall accompany the record transmitted from the lower judicatory.

(c) If no record is available for transmission to the reviewing court, the clerk of the lower judicatory shall notify the lower judicatory accordingly so that further action may be taken pursuant to this chapter.

(d) If the clerk of the lower judicatory does not transmit the record to the reviewing court within 30 days after being served with a copy of the petition for review, the petitioner shall notify the reviewing court, which then shall order the clerk of the lower judicatory to promptly transmit the record or state the reason for the delay.

§ 5-3-16

(a) The payment of all costs accrued in a lower judicatory shall not be required in order to file a petition for review under this chapter.

(b) Except to the extent prohibited by law, no petition for review shall be heard in a reviewing court unless the petitioner:

(1) Pays all unpaid costs owed to the lower judicatory within 30 days after receiving notice of such costs; or

(2) Files an affidavit of indigence with the reviewing court stating that the petitioner is unable to pay the costs owed to the lower judicatory because of indigence.

(c) No appeal shall be dismissed by a reviewing court because of nonpayment of the costs owed to a lower judicatory unless the petitioner has been ordered by the reviewing court to pay such costs and has failed to comply with such order.

(d) An executor, administrator of an estate, or other trustee, when defending an action in such capacity or when solely defending an estate's title, may file a petition for review without paying costs as required by this Code section and without giving a bond and security as provided in Code Section 5-3-17; provided, however, that, if a judgment is obtained against an executor, administrator of an estate, or other trustee and not the assets of the estate, then the executor, administrator of an estate, or other trustee shall pay such costs as required by this Code section and give security if required under Code Section 5-3-17.

(e) Unless the petitioner in a civil case files an affidavit of indigence with the reviewing court stating that the petitioner is unable to pay the costs owed to the lower judicatory because of indigence, the petitioner in a civil case shall obtain and file with the reviewing court a certificate of payment of costs from the lower judicatory certifying that the petitioner has paid all costs owed to the lower judicatory. Such certificate shall be:

(1) Filed in the reviewing court within five days after issuance by the lower judicatory; and

(2) Signed by a judge, clerk, official, member, or other designated representative of the lower judicatory.

§ 5-3-17

(a) Except to the extent prohibited by law, the filing of a petition for review under this chapter shall act as supersedeas and shall suspend but not vacate a final judgment of a lower judicatory.

(b) Except as provided in subsection (c) of this Code section, a supersedeas bond need not be given by a petitioner under this chapter.

(c)(1) Except as provided in subsection (d) of Code Section 5-3-16 or otherwise prohibited by law, the reviewing court may require that a supersedeas bond be given with good security while a petition for review is under review.

(2) In criminal cases where a bond is required pursuant to paragraph (1) of this subsection, the lower judicatory shall order that the petitioner be released from custody upon the giving of a bond by the petitioner.

(d) If a petitioner fails to give a bond when a bond is required, the supersedeas provided for in subsection (a) of this Code section shall cease unless the petitioner files with the reviewing court an affidavit stating that because of indigence the petitioner is unable to give a bond.

(e) A bond set pursuant to this chapter shall not exceed the total amount of damages, fines, fees, penalties, and surcharges imposed by the lower judicatory in the case under review.

(f) Bonds given pursuant to this chapter are subject to the following requirements:

(1) If a person has been convicted of any criminal or quasi-criminal offense or a violation of any ordinance, bond shall be payable to the state unless such conviction is in a municipal court, in which case it shall be payable to the municipality under which such court exists. This paragraph shall not apply to constitutional city courts or state courts;

(2) In civil cases, the petitioner shall make a bond payable to the respondent;

(3) The petitioner must agree under oath to personally appear and abide by the final judgment, decision, order, or sentence in the case;

(4) If a secured bond is required, the person providing security shall swear under oath that he or she can fulfill the bond obligation; and

(5) The giving of a bond shall be consistent with the Constitution of the United States and the laws and the Constitution of this state, including, but not limited to, Code Section 17-6-1.

(g) A bond may be forfeited in the same manner as any other bond in any court having jurisdiction, except that a bond payable to a municipality may be forfeited as prescribed in a municipal ordinance of such municipality.

(h) A supersedeas provided for in this Code section shall suspend the final judgment of the lower judicatory until the petition for review is decided or dismissed by the reviewing court or by an appellate court upon appeal, provided that the petitioner applies for and procures the necessary writs for reviewing the decision complained of within the time prescribed.

(i) If a petition for review is filed by a petitioner's attorney, the petitioner's attorney shall be authorized to sign the name of the petitioner to the supersedeas bond. In such cases, the petitioner shall be bound by the supersedeas bond as though the petitioner had personally signed it.

(j) An action may be brought on the bond given under this chapter in any court having jurisdiction.

(k) A valid bond may replace or be amended to replace a void bond or no bond at all at any time under this Code section.

(l) A petitioner's surety, if any, shall be bound by the judgment in a petition for review. A surety compelled to pay off a debt or damages for which judgment is entered under this chapter shall only have recourse against the surety's principal.

(m) When several partners or joint contractors bring or defend a claim, any one of the partners or joint contractors may file a petition for review in the name of the firm or joint contractors and sign the name of the firm or joint contractors to a bond if a bond is required by the reviewing court. Such petition for review and bond shall be binding on the firm and the joint contractors as though they had signed it themselves.

§ 5-3-18

(a)(1) After a petition for review is reviewed under this chapter, the reviewing court shall render a final decision:

(A) Entering a judgment upon the petition for review;

(B) Ordering dismissal of the petition for review;

(C) Remanding a petition for review back to the lower judicatory with instructions; or

(D) A combination thereof.

(2) If the final decision rendered pursuant to this Code section is a judgment upon the petition for review, it shall be in writing and specify whether the reviewing court is affirming, reversing, or vacating the final judgment of the lower judicatory.

(3) If the final decision rendered pursuant to this Code section remands the petition for review back to the lower judicatory, it shall provide instructions to the lower judicatory for further proceedings.

(b) The clerk of the reviewing court shall serve a copy of the reviewing court's final decision regarding a petition for review on the clerk of the lower judicatory and on all parties named in the petition for review within five days after the date such decision was rendered. The clerk of the lower judicatory shall promptly notify each judge, official, or member of the lower judicatory who rendered the final judgment appealed of any final decision served on the clerk of the lower judicatory. If the lower judicatory does not have a clerk, then the clerk of the reviewing court shall serve a copy of the reviewing court's final decision on each judge, official, or member of the lower judicatory who rendered the final judgment appealed.

(c) A final decision by the reviewing court under this chapter may be appealed to the appropriate appellate court as prescribed by law.

§ 5-3-19

(a) If a petition for review is dismissed or withdrawn pursuant to this chapter, the rights of all parties shall be the same as if no appeal had been filed. Notwithstanding any other provision of law, the dismissal or withdrawal of a petition for review under this chapter shall:

(1) Dismiss the petition for review;

(2) Not dismiss the petitioner's underlying case from the lower judicatory or vacate the final judgment of the lower judicatory; and

(3) Reinstate the final judgment of the lower judicatory as if the petition for review had not been filed.

(b) This Code section shall apply to all cases appealed under this chapter regardless of the standard of review applied under Code Section 5-3-5.

§ 5-3-20

Reasonable and necessary attorney's fees and expenses of litigation may be assessed for frivolous actions or defenses in a petition for review as provided in Code Section 9-15-14.

§ 5-3-21

(a) If a petition for review is sustained and a final decision regarding the case is made by the reviewing court, the petitioner may have judgment entered for the sum recovered by the petitioner in the lower judicatory, the costs paid to obtain the petition for review, and the costs in the reviewing court.

(b) If a petition for review is returned to the lower judicatory for a new hearing, the petitioner shall have judgment entered for the costs in the reviewing court only, leaving the costs paid to obtain the petition for review to be awarded upon the final judgment of the lower judicatory after the new hearing.

(c) If a petition for review is dismissed and a final decision regarding the case is made by the reviewing court, the respondent in a petition for review may have judgment entered in the reviewing court against the petitioner and the petitioner's security for the sum recovered by the respondent, together with the costs in the reviewing court.

(d) If a petition for review is returned to the lower judicatory and the lower judicatory decides the case in favor of the respondent, then the security on the petition for review bond shall be included in the lower judicatory's final judgment.

Chapter 5 New Trial

§ 5-5-1

(a) The superior, state, and juvenile courts, the Georgia State-wide Business Court, and the City Court of Atlanta shall have power to correct errors and grant new trials in cases or collateral issues in any of the respective courts in such manner and under such rules as they may establish according to law and the usages and customs of courts.

(b) Probate courts shall have power to correct errors and grant new trials in civil cases provided for by Article 6 of Chapter 9 of Title 15 under such rules and procedures as apply to the superior courts.

§ 5-5-20

In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.

§ 5-5-21

The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.

§ 5-5-22

The courts may grant new trials in all cases when any material evidence may be illegally admitted to or illegally withheld from the jury over the objection of the movant.

§ 5-5-23

A new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.

§ 5-5-24

(a) Except as otherwise provided in this Code section, in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. Objection need not be made with the particularity formerly required of assignments of error and need only be as reasonably definite as the circumstances will permit. This subsection shall not apply in criminal cases.

(b) In all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein. Copies of requests shall be given to opposing counsel for their consideration prior to the charge of the court. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury but shall instruct the jury after the arguments are completed. The trial judge shall file with the clerk all requests submitted to him, whether given in charge or not.

(c) Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.

§ 5-5-25

In all motions for a new trial on other grounds not provided for in this Code, the presiding judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts.

§ 5-5-40

(a) All motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury.

(b) The motion may be amended any time on or before the ruling thereon.

(c) Where the grounds of the motion require consideration of the transcript of evidence or proceedings, the court may in its discretion grant an extension of time, except in cases where the death penalty is imposed, for the preparation and filing of the transcript, which may be done any time on or before the hearing; or the court may in its discretion hear and determine the motion before the transcript of evidence and proceedings is prepared and filed.

(d) The grounds of the motion need not be approved by the court.

(e) The motion may be heard at any time; but, where it is not heard at the time specified in the order, it shall stand for hearing at such time as the court by order at any time may prescribe, unless sooner disposed of.

(f) Motions for new trial in cases in which the death penalty is imposed shall be given priority.

(g) On appeal, a party shall not be limited to the grounds urged in the motion or any amendment thereof.

(h) The court also shall be empowered to grant a new trial on its own motion within 30 days from entry of the judgment, except in criminal cases where the defendant was acquitted.

§ 5-5-41

(a) When a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court. In all such cases, 20 days' notice shall be given to the opposite party.

(b) Whenever a motion for a new trial has been made within the 30 day period in any criminal case and overruled or when a motion for a new trial has not been made during such period, no motion for a new trial from the same verdict or judgment shall be made or received unless the same is an extraordinary motion or case; and only one such extraordinary motion shall be made or allowed.

(c)(1) Subject to the provisions of subsections (a) and (b) of this Code section, a person convicted of a felony may file a written motion before the trial court that entered the judgment of conviction in his or her case for the performance of forensic deoxyribonucleic acid (DNA) testing.

(2) The filing of the motion as provided in paragraph (1) of this subsection shall not automatically stay an execution.

(3) The motion shall be verified by the petitioner and shall show or provide the following:

(A) Evidence that potentially contains deoxyribonucleic acid (DNA) was obtained in relation to the crime and subsequent indictment, which resulted in his or her conviction;

(B) The evidence was not subjected to the requested DNA testing because the existence of the evidence was unknown to the petitioner or to the petitioner's trial attorney prior to trial or because the technology for the testing was not available at the time of trial;

(C) The identity of the perpetrator was, or should have been, a significant issue in the case;

(D) The requested DNA testing would raise a reasonable probability that the petitioner would have been acquitted if the results of DNA testing had been available at the time of conviction, in light of all the evidence in the case;

(E) A description of the evidence to be tested and, if known, its present location, its origin and the date, time, and means of its original collection;

(F) The results of any DNA or other biological evidence testing that was conducted previously by either the prosecution or the defense, if known;

(G) If known, the names, addresses, and telephone numbers of all persons or entities who are known or believed to have possession of any evidence described by subparagraphs (A) through (F) of this paragraph, and any persons or entities who have provided any of the information contained in petitioner's motion, indicating which person or entity has which items of evidence or information; and

(H) The names, addresses, and telephone numbers of all persons or entities who may testify for the petitioner and a description of the subject matter and summary of the facts to which each person or entity may testify.

(4) The petitioner shall state:

(A) That the motion is not filed for the purpose of delay; and

(B) That the issue was not raised by the petitioner or the requested DNA testing was not ordered in a prior proceeding in the courts of this state or the United States.

(5) The motion shall be served upon the district attorney and the Attorney General. The state shall file its response, if any, within 60 days of being served with the motion. The state shall be given notice and an opportunity to respond at any hearing conducted pursuant to this subsection.

(6)(A) If, after the state files its response, if any, and the court determines that the motion complies with the requirements of paragraphs (3) and (4) of this subsection, the court shall order a hearing to occur after the state has filed its response, but not more than 90 days from the date the motion was filed.

(B) The motion shall be heard by the judge who conducted the trial that resulted in the petitioner's conviction unless the presiding judge determines that the trial judge is unavailable.

(C) Upon request of either party, the court may order, in the interest of justice, that the petitioner be at the hearing on the motion. The court may receive additional memoranda of law or evidence from the parties for up to 30 days after the hearing.

(D) The petitioner and the state may present evidence by sworn and notarized affidavits or testimony; provided, however, any affidavit shall be served on the opposing party at least 15 days prior to the hearing.

(E) The purpose of the hearing shall be to allow the parties to be heard on the issue of whether the petitioner's motion complies with the requirements of paragraphs (3) and (4) of this subsection, whether upon consideration of all of the evidence there is a reasonable probability that the verdict would have been different if the results of the requested DNA testing had been available at the time of trial, and whether the requirements of paragraph (7) of this subsection have been established.

(7) The court shall grant the motion for DNA testing if it determines that the petitioner has met the requirements set forth in paragraphs (3) and (4) of this subsection and that all of the following have been established:

(A) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;

(B) The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;

(C) The evidence was not tested previously or, if tested previously, the requested DNA test would provide results that are reasonably more discriminating or probative of the identity of the perpetrator than prior test results;

(D) The motion is not made for the purpose of delay;

(E) The identity of the perpetrator of the crime was a significant issue in the case;

(F) The testing requested employs a scientific method that has reached a scientific state of verifiable certainty such that the procedure rests upon the laws of nature; and

(G) The petitioner has made a prima facie showing that the evidence sought to be tested is material to the issue of the petitioner's identity as the perpetrator of, or accomplice to, the crime, aggravating circumstance, or similar transaction that resulted in the conviction.

(8) If the court orders testing pursuant to this subsection, the court shall determine the method of testing and responsibility for payment for the cost of testing, if necessary, and may require the petitioner to pay the costs of testing if the court determines that the petitioner has the ability to pay. If the petitioner is indigent, the cost shall be paid from the fine and bond forfeiture fund as provided in Article 3 of Chapter 21 of Title 15.

(9) If the court orders testing pursuant to this subsection, the court shall order that the evidence be tested by the Division of Forensic Sciences of the Georgia Bureau of Investigation. In addition, the court may also authorize the testing of the evidence by a laboratory that meets the standards of the DNA advisory board established pursuant to the DNA Identification Act of 1994, Section 14131 of Title 42 of the United States Code, to conduct the testing. The court shall order that a sample of the petitioner's DNA be submitted to the Division of Forensic Sciences of the Georgia Bureau of Investigation and that the DNA analysis be stored and maintained by the bureau in the DNA data bank.

(10) If a motion is filed pursuant to this subsection the court shall order the state to preserve during the pendency of the proceeding all evidence that contains biological material, including, but not limited to, stains, fluids, or hair samples in the state's possession or control.

(11) The result of any test ordered under this subsection shall be fully disclosed to the petitioner, the district attorney, and the Attorney General.

(12) The judge shall set forth by written order the rationale for the grant or denial of the motion for new trial filed pursuant to this subsection.

(13) The petitioner or the state may appeal an order, decision, or judgment rendered pursuant to this Code section.

§ 5-5-42

(a) The form for motion for new trial in civil cases prescribed in subsection (b) of this Code section shall be sufficient, but any other form substantially complying therewith shall also be sufficient.

(b) Form for motion for new trial in civil cases:

IN THE _____ COURT OF _____ COUNTY

STATE OF GEORGIA

MOTION FOR NEW TRIAL

Defendant moves the court to set aside the verdict returned herein on (date), _____, and the judgment entered thereon on (date), _____, and to grant a new trial on the following grounds:

(1) The verdict is contrary to law.

(2) The verdict is contrary to the evidence.

(3) The verdict is strongly against the weight of the evidence.

(4) The court erred in permitting witness Smith to testify as follows: _____.

(5) The court erred in failing to charge the jury on unavoidable accident as requested in writing by defendant.

(6) The court erred in charging the jury as follows: _____.

(Here set forth rule nisi and certificate of service.)

(c) The form for motion for new trial in criminal cases in subsection (d) of this Code section is declared to be sufficient but any other form substantially complying therewith shall also be sufficient.

(d) Form for motion for new trial in criminal cases:

IN THE _____ COURT OF _____ COUNTY

STATE OF GEORGIA

MOTION FOR NEW TRIAL

Defendant moves the court to set aside the verdict returned herein on (date), _____, and the sentence entered thereon on (date), _____, and to grant a new trial on the following grounds:

(1) The defendant should be acquitted and discharged due to the state's failure to prove guilt beyond a reasonable doubt.

(2) Although the state proved the defendant's guilt beyond a reasonable doubt, the evidence was sufficiently close to warrant the trial judge to exercise his discretion to grant the defendant a retrial.

(3) The court committed an error of law warranting a new trial.

(Here set forth rule nisi and certificate of service.)

§ 5-5-43

A judge who did not try the case may, if presented with a motion for new trial within 30 days from the date of the verdict or judgment sought to be set aside, allow the filing of, issue rule nisi thereon, and decide the motion either where he is presiding in the court in which the trial was had, or where he is named in the rule, or where he is otherwise authorized by law to do so.

§ 5-5-44

In all motions for a new trial the opposite party shall be served with a copy of the rule nisi unless such copy is waived. The clerks of the courts shall not be required, except by order of the presiding judge, to enter upon the minutes of the courts motions for new trial in cases tried therein; but the motions shall be filed in the clerk's office as are other papers and shall be recorded together with the other pleadings in the cases when the same are finally disposed of as required by law.

§ 5-5-45

A rule nisi for a new trial may be amended by adding new grounds not taken at the time the motion was filed.

§ 5-5-46

(a) The rule nisi on a motion for a new trial in a criminal case shall not operate as a supersedeas unless it is so ordered by the court.

(b) When requested to do so by the defendant or his counsel, the judge trying the case shall grant an order superseding the sentence until the motion for a new trial is heard and decided.

§ 5-5-47

(a) It shall be the right of any person convicted of a crime which is bailable under the law, and in which case a motion for a new trial has been filed as provided by law, to give a supersedeas bond immediately upon the filing of the motion for new trial without having to wait for the filing of a notice of appeal.

(b) The judge of the court having jurisdiction of the case, immediately upon the approval and filing of a motion for new trial therein, shall assess the amount of the bond, which shall be approved in the manner provided by law.

(c) The provisions of Code Section 5-6-45, relating to supersedeas and supersedeas bonds when a notice of appeal is filed, shall apply equally to cases when a motion for a new trial is filed.

§ 5-5-48

When a new trial has been granted by the court, the case shall be placed on the docket for trial as though no trial had been had, subject to the rules for continuances provided in this Code.

§ 5-5-49

(a) A case decided by the Supreme Court or Court of Appeals which is not finally disposed of by the decision shall stand for further hearing at the term next ensuing after the decision by the appellate court unless the lower court is in session when the decision is made, in which event it shall stand for trial during such term of the lower court.

(b) The clerk of the lower court, upon receipt of the remittitur of the appellate court, shall docket the case for trial in accordance with subsection (a) of this Code section.

(c) The judge presiding may in his discretion postpone the hearing of any such case to a day in the term as to him may seem reasonable; or, if necessary to give proper time for preparation, he may continue the case until the next term of the court.

§ 5-5-50

The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.

§ 5-5-51

In all civil cases in which a new trial is granted, if the grant of a new trial is based on the discretion of the judge, the judge shall set forth by written order the reason or reasons for the exercise of his discretion. Such order shall not be required to conform to the provisions of Code Section 9-11-52, relating to findings by the court.

Chapter 6 Certiorari and Appeals to Appellate Courts Generally

§ 5-6-1

When a case is set for a hearing before the Supreme Court or the Court of Appeals and there are parties besides the plaintiffs and defendants, whether shown by the record or not, who have a direct interest in its result, upon the interest being made to appear the court shall allow the other parties to appear by counsel on equal terms with the parties directly before the court.

§ 5-6-2

The transcript of the record shall not be recorded by the clerk of the appellate court but shall be carefully labeled and filed so as to be found easily when needed.

§ 5-6-3

(a) Whenever the appellate court may be unable to dispose of all cases on its docket for any term before the time fixed by law for the succeeding term to begin, the court may pass an order requiring counsel in all such cases to file their briefs in the clerk's office of the court on or before a certain day prior to the succeeding term. All cases in which briefs are thus filed shall be considered as heard at the term of the court to which returned. They shall be determined and the decision therein shall be announced by the court as soon after the briefs are filed as may be practicable. Should the court desire to hear argument in addition to that submitted in the briefs, the court may pass an order requiring counsel to submit further argument by brief or in open court at such time as may be prescribed in the order.

(b) Upon failure of counsel for the appellant to comply with the order of the court, where no sufficient excuse is shown for noncompliance, the case shall be dismissed for want of prosecution.

§ 5-6-4

(a) The bill of costs for every application to the Supreme Court for a writ of certiorari or for applications for appeals filed in the Supreme Court or the Court of Appeals or appeals to the Supreme Court or the Court of Appeals shall be $80.00 in criminal cases and in habeas corpus cases for persons whose liberty is being restrained by virtue of a sentence imposed against them by a state court and $300.00 in all other civil cases. The costs shall be paid by counsel for the applicant or appellant at the time of the filing of the application or, in the case of direct appeals, at the time of the filing of the original brief of the appellant. In those cases in which the writ of certiorari or an application for appeal is granted, there shall be no additional costs.

(b) Costs shall not be required when at the time the same are due:

(1) The pro se applicant or pro se appellant is incarcerated at the time of the filing;

(2) Counsel for the applicant or appellant was appointed to represent the defendant by the trial court because of the defendant's indigency; or

(3) The applicant, appellant, or counsel for applicant or appellant files an affidavit of indigency.

(c) The clerk shall be prohibited from receiving the application for appeal or the brief of the appellant unless the costs have been paid or the provisions of subsection (b) of this Code section have been satisfied.

§ 5-6-5

If there is a judgment of reversal, the appellant shall be entitled to a judgment for the amount of the costs in the appellate court against the appellee as soon as the remittitur is returned to the court below.

§ 5-6-6

When in the opinion of the court the case was taken up for delay only, 10 percent damages may be awarded by the appellate court upon any judgment for a sum certain which has been affirmed. The award shall be entered in the remittitur.

§ 5-6-7

No decision shall be rendered ore tenus. The reporter shall publish in the official reports of the Supreme Court and the Court of Appeals all judgments, but only those opinions which the courts shall direct to be published.

§ 5-6-8

The decision in each case shall be entered on the minutes. It shall be within the power of the appellate court rendering the decision in a case to make such order and to give such direction as to the final disposition of the case by the lower court as may be consistent with the law and justice of the case.

§ 5-6-9

(a) Where a further hearing of the case is to follow in the lower court, the clerk of the appellate court shall transmit a copy of the opinion to the clerk of the lower court, without charge, as soon as the opinion is written out. The copy shall remain on file for the information of the court and the parties.

(b) The appellate court, on rendering its decision in any case, shall instruct the clerk whether the case comes within the terms of this Code section; and a note of such instructions shall be entered on the minutes of the court.

§ 5-6-10

The decision of the appellate court and any direction awarded in the case shall be certified by the clerk to the court below, under the seal of the court. The decision and direction shall be respected and carried into full effect in good faith by the court below. The remittitur shall contain nothing more, except the costs paid in the appellate court.

§ 5-6-11

In all cases where the Supreme Court of Georgia has affirmed the imposition of the death penalty in a case or has affirmed the denial of a petition for a writ of habeas corpus in any case in which the death penalty has been imposed, the remittitur shall not issue from that court for at least 90 days from the date of the court's decision, or from the date of the court's denial of a motion for a rehearing, if such motion is timely filed, whichever is later; provided, however, that this Code section shall not apply where the defendant has previously applied for a writ of habeas corpus which has been denied and the denial thereof has been affirmed by the Supreme Court of Georgia, or where the writ has been granted but the grant thereof has been reversed by the Supreme Court of Georgia.

§ 5-6-12

If the judgment of the lower court is affirmed, upon the filing of the remittitur with the clerk of the court below, the supersedeas shall cease and execution shall issue at once for the amount of the original judgment.

§ 5-6-13

(a) A judge of any trial court or tribunal having the power to adjudge and punish for contempt shall grant to any person convicted of or adjudged to be in contempt of court a supersedeas upon application and compliance with the provisions of law as to appeal and certiorari, where the person also submits, within the time prescribed by law, written notice that he intends to seek review of the conviction or adjudication of contempt. It shall not be in the discretion of any trial court judge to grant or refuse a supersedeas in cases of contempt.

(b) This Code section shall not apply to contempt in the presence of the court during the progress of a proceeding.

§ 5-6-14

When judgments are rendered on appeal in injunction or other extraordinary cases, the judges of the superior courts may give immediate effect to such judgments.

§ 5-6-15

The writ of certiorari shall lie from the Supreme Court to the Court of Appeals as provided by Article VI, Section VI, Paragraph V of the Constitution of this state.

§ 5-6-16

(a)(1) When either the plaintiff or the defendant dies after a case has been tried and before the expiration of the time within which the party, if living, might have entered an appeal, and no appeal has been entered, the personal representative of the estate of the deceased party may enter an appeal within 30 days from the time such personal representative qualifies.

(2) If an appeal is not entered within the time prescribed in this Code section, judgment may be entered and execution issued as though the deceased party were alive, without making the personal representative a party.

(3) For purposes of this subsection, the term “personal representative” includes temporary administrators, subject to the provisions of Code Sections 53-6-31 and 53-7-4.

(b)(1) When an appeal is entered as provided in paragraph (1) of subsection (a) of this Code section, it shall not be necessary to revive the action, but it shall be revived by the appealing party giving notice to the adverse party within 30 days from the time of entering the appeal.

(2) When a defendant appeals as provided in paragraph (1) of subsection (a) of this Code section, the case shall stand for trial on the appeal docket at the first term of the court after the expiration of six months from the qualification of the personal representative.

(c) Nothing in paragraph (2) of subsection (a) or paragraph (2) of subsection (b) of this Code section shall impair the operation or limit the applicability of Article 4 of Chapter 7 of Title 53.

§ 5-6-30

It is the intention of this article to provide a procedure for taking cases to the Supreme Court and the Court of Appeals, as authorized in Article VI, Sections V and VI of the Constitution of this state; to that end, this article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in this article.

§ 5-6-31

The filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of this article.

§ 5-6-32

(a) Whenever under this article service or the giving of any notice is required or permitted to be made upon a party and the party is represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service of all notices and other papers hereunder and service of motions for new trial, motions in arrest, motions for judgment notwithstanding the verdict, and all other similar motions, orders, and proceedings may be made by the attorney or party filing the notice or paper, in person or by mail, and proof thereof shown by acknowledgment of the attorney or party served, or by certificate of the attorney, party, or other person perfecting service. Service of any paper, motion, or notice may be perfected either before or after filing with the clerk thereof; and when service is made by mail it shall be deemed to be perfected as of the day deposited in the mail. Where the address of any party is unknown and the party is not represented by an attorney of record, service of all notices and other papers referred to above may be perfected on the party by mail directed to the last known address of the party.

(b) Service of any notice, motion, or other paper provided for in this article may be waived or acknowledged either before or after filing.

§ 5-6-33

(a)(1) Either party in any civil case and the defendant in any criminal proceeding in the superior, state, or city courts, or in the Georgia State-wide Business Court, may appeal from any sentence, judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers.

(2) Either party in any civil case in the probate courts provided for by Article 6 of Chapter 9 of Title 15 may appeal from any judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers.

(b) This Code section shall not affect Chapter 7 of this title.

§ 5-6-34

(a) Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the Georgia State-wide Business Court, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state:

(1) All final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35;

(2) All judgments involving applications for discharge in bail trover and contempt cases;

(3) All judgments or orders directing that an accounting be had;

(4) All judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions;

(5) All judgments or orders granting or refusing applications for attachment against fraudulent debtors;

(6) Any ruling on a motion which would be dispositive if granted with respect to a defense that the action is barred by Code Section 16-11-173;

(7) All judgments or orders granting or refusing to grant mandamus or any other extraordinary remedy, except with respect to temporary restraining orders;

(8) All judgments or orders refusing applications for dissolution of corporations created by the superior courts;

(9) All judgments or orders sustaining motions to dismiss a caveat to the probate of a will;

(10) All judgments or orders entered pursuant to subsection (c) of Code Section 17-10-6.2;

(11) All judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders;

(12) All judgments or orders entered pursuant to Code Section 35-3-37; and

(13) All judgments or orders entered pursuant to Code Section 9-11-11.1.

(b) Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, including but not limited to the denial of a defendant's motion to recuse in a criminal case, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted. The application shall be in the nature of a petition and shall set forth the need for such an appeal and the issue or issues involved therein. The applicant may, at his or her election, include copies of such parts of the record as he or she deems appropriate, but no certification of such copies by the clerk of the trial court shall be necessary. The application shall be filed with the clerk of the Supreme Court or the Court of Appeals and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties in the case in the manner prescribed by Code Section 5-6-32, except that such service shall be perfected at or before the filing of the application. The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 45 days of the date on which the application was filed. Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, may file a notice of appeal as provided in Code Section 5-6-37. The notice of appeal shall act as a supersedeas as provided in Code Section 5-6-46 and the procedure thereafter shall be the same as in an appeal from a final judgment.

(c) In criminal cases involving a capital offense for which the death penalty is sought, a hearing shall be held as provided in Code Section 17-10-35.2 to determine if there shall be a review of pretrial proceedings by the Supreme Court prior to a trial before a jury. Review of pretrial proceedings, if ordered by the trial court, shall be exclusively as provided by Code Section 17-10-35.1 and no certificate of immediate review shall be necessary.

(d) Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. For purposes of review by the appellate court, one or more judgments, rulings, or orders by the trial court held to be erroneous on appeal shall not be deemed to have rendered all subsequent proceedings nugatory; but the appellate court shall in all cases review all judgments, rulings, or orders raised on appeal which may affect the proceedings below and which were rendered subsequent to the first judgment, ruling, or order held erroneous. Nothing in this subsection shall require the appellate court to pass upon questions which are rendered moot.

(e) Where an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.

§ 5-6-35

(a) Appeals in the following cases shall be taken as provided in this Code section:

(1) Appeals from decisions of the superior courts reviewing decisions of the State Board of Workers' Compensation, the State Board of Education, auditors, state and local administrative agencies, and lower courts by petition for review; provided, however, that this provision shall not apply to decisions of the Public Service Commission and probate courts and to cases involving ad valorem taxes and condemnations;

(2) Appeals from judgments or orders in divorce, alimony, and other domestic relations cases including, but not limited to, granting or refusing a divorce or temporary or permanent alimony or holding or declining to hold persons in contempt of such alimony judgment or orders;

(3) Appeals from cases involving distress or dispossessory warrants in which the only issue to be resolved is the amount of rent due and such amount is $2,500.00 or less;

(4) Appeals from cases involving garnishment or attachment, except as provided in paragraph (5) of subsection (a) of Code Section 5-6-34;

(5) Appeals from orders revoking probation;

(5.1) Appeals from decisions of superior courts reviewing decisions of the Sexual Offender Risk Review Board;

(5.2) Appeals from decisions of superior courts granting or denying petitions for release pursuant to Code Section 42-1-19;

(6) Appeals in all actions for damages in which the judgment is $10,000.00 or less;

(7) Appeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial;

(8) Appeals from orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment or under subsection (e) of Code Section 9-11-60 denying relief upon a complaint in equity to set aside a judgment;

(9) Appeals from orders granting or denying temporary restraining orders;

(10) Appeals from awards of attorney's fees or expenses of litigation under Code Section 9-15-14;

(11) Appeals from decisions of the state courts reviewing decisions of the magistrate courts by de novo proceedings so long as the subject matter is not otherwise subject to a right of direct appeal;

(12) Appeals from orders terminating parental rights; and

(13) Appeals from orders under subsection (a) of Code Section 44-14-610 granting or denying an objection to the filing of a lis pendens or granting or denying a motion canceling a lis pendens.

(b) All appeals taken in cases specified in subsection (a) of this Code section shall be by application in the nature of a petition enumerating the errors to be urged on appeal and stating why the appellate court has jurisdiction. The application shall specify the order or judgment being appealed and, if the order or judgment is interlocutory, the application shall set forth, in addition to the enumeration of errors to be urged, the need for interlocutory appellate review.

(c) The applicant shall include as exhibits to the petition a copy of the order or judgment being appealed and should include a copy of the petition or motion which led directly to the order or judgment being appealed and a copy of any responses to the petition or motion. An applicant may include copies of such other parts of the record or transcript as he deems appropriate. No certification of such copies by the clerk of the trial court shall be necessary in conjunction with the application.

(d) The application shall be filed with the clerk of the Supreme Court or the Court of Appeals within 30 days of the entry of the order, decision, or judgment complained of and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties as provided by law, except that the service shall be perfected at or before the filing of the application. When a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.

(e) The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The response may point out that the decision of the trial court was not error, or that the enumeration of error cannot be considered on appeal for lack of a transcript of evidence or for other reasons.

(f) The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 30 days of the date on which the application was filed.

(g) Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, shall file a notice of appeal as provided by law. The procedure thereafter shall be the same as in other appeals.

(h) The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.

(i) This Code section shall not affect Code Section 9-14-52, relating to practice as to appeals in certain habeas corpus cases.

(j) When an appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not in subsection (a) of this Code section, is initiated by filing an otherwise timely application for permission to appeal pursuant to subsection (b) of this Code section without also filing a timely notice of appeal, the appellate court shall have jurisdiction to decide the case and shall grant the application. Thereafter the appeal shall proceed as provided in subsection (g) of this Code section.

(k) Where an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.

§ 5-6-36

(a) A motion for new trial need not be filed as a condition precedent to appeal or consideration of any judgment, ruling, or order in any case; but, in all cases where a motion for new trial is an available remedy, the party entitled thereto may elect to file the motion first or to appeal directly. However, where matters complained of arise or are discovered subsequent to verdict or judgment which otherwise would not appear in the record, such as newly discovered evidence, and in other like instances, a motion for new trial or other available procedure shall be filed and together with all proceedings thereon shall become a part of the record on appeal. Otherwise, the motion for new trial need not be transmitted as a part of the record on appeal; nor shall it be necessary that the overruling thereof be enumerated as error (subject to the exception last stated), as the appellate court may consider all questions included in the enumeration of errors provided for in Code Section 5-6-40. The entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.

(b) A motion for judgment notwithstanding the verdict need not be filed as a condition precedent to review upon appeal of an order or ruling of the trial court overruling a motion for directed verdict; but, in all cases where the motion is an available remedy, the party may file the motion or appeal directly from the final judgment and enumerate as error the overruling of the motion for directed verdict.

§ 5-6-37

Unless otherwise provided by law, an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal. The notice shall set forth the title and docket number of the case; the name of the appellant and the name and address of his attorney; a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal; the court appealed to; a designation of those portions of the record to be omitted from the record on appeal; a concise statement as to why the appellate court appealed to has jurisdiction rather than the other appellate court; and, if the appeal is from a judgment of conviction in a criminal case, a brief statement of the offense and the punishment prescribed. The appeal shall not be dismissed nor denied consideration because of failure to include the jurisdictional statement or because of a designation of the wrong appellate court. In addition, the notice shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal. Approval by the court is not required as a condition to filing the notice. All parties to the proceedings in the lower court shall be parties on appeal and shall be served with a copy of the notice of appeal in the manner prescribed by Code Section 5-6-32.

§ 5-6-38

(a) 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 new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion. In civil cases, the appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant; and the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him; and in no case shall the appellee be required to institute an independent appeal on his own right, although the appellee may at his option file an independent appeal. The notice of cross appeal shall set forth the title and docket number of the case, the name of the appellee, the name and address of his attorney, and a designation of any portions of the record or transcript designated for omission by the appellant and which the appellee desires included and shall state that the appellee takes a cross appeal. In all cases where the notice of appeal did not specify that a transcript of evidence and proceedings was to be transmitted as a part of the record on appeal, the notice of cross appeal shall state whether such transcript is to be filed for inclusion in the record on appeal. A copy of the notice of cross appeal shall be served on other parties of record in the manner prescribed by Code Section 5-6-32.

(b) Where a cross appeal is filed, only one record and, where specified, only one transcript of evidence and proceedings need be prepared and transmitted to the appellate court; but the cross appellant may, at his election, require that such a separate record (and transcript, if required) be transmitted. Where a cross appeal is filed and only one record (and transcript, where required) is sent up, the court shall by order provide for the division of costs therefor between the parties if they are unable to do so by agreement.

(c) Notwithstanding subsection (a) of this Code section, where either the state or the defendant wishes to appeal any judgment, ruling, or order in the pretrial proceedings of a criminal case involving a capital offense for which the death penalty is sought, such appeal shall be brought as provided in Code Section 17-10-35.1.

§ 5-6-39

(a) Any judge of the trial court or any justice or judge of the appellate court to which the appeal is to be taken may, in his discretion, and without motion or notice to the other party, grant extensions of time for the filing of:

(1) Notice of appeal;

(2) Notice of cross appeal;

(3) Transcript of the evidence and proceedings on appeal or in any other instance where filing of the transcript is required or permitted by law;

(4) Designation of record referred to under Code Section 5-6-42; and

(5) Any other similar motion, proceeding, or paper for which a filing time is prescribed.

(b) No extension of time shall be granted for the filing of motions for new trial or for judgment notwithstanding the verdict.

(c) Only one extension of time shall be granted for filing of a notice of appeal and a notice of cross appeal, and the extension shall not exceed the time otherwise allowed for the filing of the notices initially.

(d) Any application to any court, justice, or judge for an extension must be made before expiration of the period for filing as originally prescribed or as extended by a permissible previous order. The order granting an extension of time shall be promptly filed with the clerk of the trial court, and the party securing it shall serve copies thereof on all other parties in the manner prescribed by Code Section 5-6-32.

§ 5-6-40

The appellant and cross appellant shall file with the clerk of the appellate court, at such time as may be prescribed by its rules, an enumeration of the errors which shall set out separately each error relied upon. The enumeration shall be concise and need not set out or refer to portions of the record on appeal. It shall be served upon the appellee or cross appellee in the manner prescribed in Code Section 5-6-32, need not have approval of the trial court, and when filed shall become a part of the record on appeal. The appellate court, by rule, may permit the enumeration to be made a part of the brief.

§ 5-6-41

(a) In all felony cases, the transcript of evidence and proceedings shall be reported and prepared by a court reporter as provided in Code Section 17-8-5 or as otherwise provided by law.

(b) In all misdemeanor cases, the trial judge may, in the judge's discretion, require the reporting and transcribing of the evidence and proceedings by a court reporter on terms prescribed by the trial judge.

(c) In all civil cases tried in the superior and city courts, in the Georgia State-wide Business Court, and in any other court, the judgments of which are subject to review by the Supreme Court or the Court of Appeals, the trial judge thereof may require the parties to have the proceedings and evidence reported by a court reporter, the costs thereof to be borne equally between them; and, where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant's expense. Where it is determined that the parties, or either of them, are financially unable to pay the costs of reporting or transcribing, the judge may, in the judge's discretion, authorize trial of the case unreported; and, when it becomes necessary for a transcript of the evidence and proceedings to be prepared, it shall be the duty of the moving party to prepare the transcript from recollection or otherwise.

(d) Where a trial in any civil or criminal case is reported by a court reporter, all motions, colloquies, objections, rulings, evidence, whether admitted or stricken on objection or otherwise, copies or summaries of all documentary evidence, the charge of the court, and all other proceedings which may be called in question on appeal or other posttrial procedure shall be reported; and, where the report is transcribed, all such matters shall be included in the written transcript, it being the intention of this article that all these matters appear in the record. Where matters occur which were not reported, such as objections to oral argument, misconduct of the jury, or other like instances, the court, upon motion of either party, shall require that a transcript of these matters be made and included as a part of the record. The transcript of proceedings shall not be reduced to narrative form unless by agreement of counsel; but, where the trial is not reported or the transcript of the proceedings for any other reason is not available and the evidence is prepared from recollection, it may be prepared in narrative form.

(e) Where a civil or criminal trial is reported by a court reporter and the evidence and proceedings are transcribed, the reporter shall complete the transcript and file the original and one copy thereof with the clerk of the trial court, together with the court reporter's certificate attesting to the correctness thereof. In criminal cases where the accused was convicted of a capital felony, an additional copy shall be filed for the Attorney General, for which the court reporter shall receive compensation from the Department of Law as provided by law. The original transcript shall be transmitted to the appellate court as a part of the record on appeal; and one copy will be retained in the trial court, both as referred to in Code Section 5-6-43. Upon filing by the reporter, the transcript shall become a part of the record in the case and need not be approved by the trial judge.

(f) Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth. If anything material to either party is omitted from the record on appeal or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court. The trial court or the appellate court may at any time order the clerk of the trial court to send up any original papers or exhibits in the case, to be returned after final disposition of the appeal.

(g) Where a trial is not reported as referred to in subsections (b) and (c) of this Code section or where for any other reason the transcript of the proceedings is not obtainable and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter as referred to in subsection (e) of this Code section. In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.

(h) Where any amendment or other pleading or paper which requires approval or sanction of the court in any proceeding before being filed of record is disallowed or sanction thereof is refused, the amendment, pleading, or paper may nevertheless be filed, with notation of disallowance thereon, and shall become part of the record for purposes of consideration on appeal or other procedure for review.

(i) In lieu of sending up a transcript of record, the parties may by agreement file a stipulation of the case showing how the questions arose and were decided in the trial court, together with a sufficient statement of facts to enable the appellate court to pass upon the questions presented therein. Before being transmitted to the appellate court, the stipulation shall be approved by the trial judge or the presiding judge of the court where the case is pending.

(j) In all cases, civil or criminal, any party may as a matter of right have the case reported at the party's own expense.

§ 5-6-42

If the appellant designates any matter to be omitted from the record on appeal as provided in Code Section 5-6-37, the appellee may, within 15 days of serving of the notice of appeal by appellant, file a designation of record designating that all or part of the omitted matters be included in the record on appeal. A copy of the designation shall be served on all other parties in the manner prescribed by Code Section 5-6-32. Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed as provided by Code Section 5-6-41; but, when the appellant has designated that the transcript not be made a part of the record on appeal and its inclusion is by reason of a designation thereof by appellee, the appellee shall cause the transcript to be prepared and filed as referred to in Code Section 5-6-41 at his expense. The party having the responsibility of filing the transcript shall cause it to be filed within 30 days after filing of the notice of appeal or designation by appellee, as the case may be, unless the time is extended as provided in Code Section 5-6-39. In all cases, it shall be the duty of the trial judge to grant such extensions of time as may be necessary to enable the court reporter to complete his transcript of evidence and proceedings.

§ 5-6-43

(a) Within five days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee, as the case may be, it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee, together with a copy of the notice of appeal and copy of any notice of cross appeal, with date of filing thereon, and transmit the same, together with the transcript of evidence and proceedings, to the appellate court, together with his certificate as to the correctness of the record. Where no transcript of evidence and proceedings is to be sent up, the clerk shall prepare and transmit the record within 20 days after the date of filing of the notice of appeal. If for any reason the clerk is unable to transmit the record and transcript within the time required in this subsection or when an extension of time was obtained under Code Section 5-6-39, he shall state in his certificate the cause of the delay and the appeal shall not be dismissed. The clerk need not recopy the transcript of evidence and proceedings to be sent up on appeal but shall send up the reporter's original and retain the copy, as referred to in Code Section 5-6-41; and it shall not be necessary that the transcript be renumbered as a part of the record on appeal. The clerk shall retain an exact duplicate copy of all records and the transcript sent up, with the same pagination, in his office as a permanent record.

(b) Where the accused in a criminal case was convicted of a capital felony, the clerk shall likewise furnish, at no cost, the Attorney General with an exact copy of the record on appeal.

(c) Where a defendant in a criminal case is confined in jail pending appeal, it shall be the duty of the clerk to state that fact in his certificate; and it shall be the duty of the appellate court to expedite disposition of the case.

(d) Where a transcript of evidence and proceedings is already on file at the time the notice of appeal is filed, as where the transcript was previously filed in connection with a motion for new trial or for judgment notwithstanding the verdict, the clerk shall cause the record and transcript (where specified for inclusion) to be transmitted as provided in subsection (a) of this Code section within 20 days after the filing of the notice of appeal.

§ 5-6-44

(a) Whenever two or more persons are defendants or plaintiffs in an action, and a judgment, verdict, or decree has been rendered against each of them, jointly or severally, or where two or more cases are tried together, the plaintiffs or defendants, as the case may be, shall be entitled, but not required, to file joint appeals, motions for new trial, motions in arrest, motions to set aside, and motions for judgment notwithstanding the verdict, without regard to whether the parties have a joint interest, or whether the cases were merely consolidated for purposes of trial, or whether the cases were simply tried together without an order of consolidation.

(b) Where joint appeals are filed, the appealing parties may nevertheless be entitled, but not required, to file separate enumerations of error in the appellate court.

(c) When separate appeals, motions for new trial, or motions for judgment notwithstanding the verdict are filed, only one transcript of evidence and proceedings (where required) and only one record need be prepared, filed, or transmitted to the appellate court (as the case may be).

(d) In such cases, the court shall by order specify the division of costs between the parties.

(e) This Code section shall apply to both civil and criminal cases.

§ 5-6-45

(a) In all criminal cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to bail. If the sentence is bailable, the defendant may give bond in an amount prescribed by the presiding judge, with security approved by the clerk, conditioned upon the defendant's personal appearance to abide the final judgment or sentence of the court. If the judgment or sentence is or includes a fine which is unconditionally required to be paid, and is not required to be paid over a period of probation, nor as a condition of a suspended or probated sentence, nor as an alternative sentence, the bond may also be conditioned upon payment of the fine at the time the defendant appears to abide the final judgment or sentence.

(b) If the defendant is a corporation which has been convicted as provided in Code Section 17-7-92, the presiding judge, on the motion of the defendant, prosecuting attorney, or on its own motion, may order that supersedeas be conditioned upon the posting of a supersedeas bond. Said order may be entered either before or after the filing of a motion for a new trial or notice of appeal. The bond shall be in an amount prescribed by the presiding judge, with security approved by the clerk, conditioned upon the defendant's appearance, by and through a corporate officer, agent, or attorney at law, to satisfy the judgment, together with all costs and interest. If the corporation fails to make the bond as ordered, the prosecuting attorney or other proper officer may use any and all lawful process and procedures available to enforce and collect the judgment. Should final judgment be entered in favor of the defendant, the presiding judge shall order a refund of all amounts collected in satisfaction of the judgment. The State of Georgia, and its political subdivisions, district attorney, solicitor-general, sheriff, marshal, all other proper officers, and all agents and employees of the aforementioned persons shall be immune from all civil liability for acts and attempts to enforce and collect a judgment under this subsection.

(c) Any supersedeas bond may be reviewed by the presiding judge on the motion of defendant, prosecuting attorney, or on its own motion, and the court may require new or additional security, or order the bond strengthened, increased, reduced, or otherwise amended as justice may reasonably require.

§ 5-6-46

(a) In civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant and it shall not be necessary that a supersedeas bond or other form of security be filed; provided, however, that upon motion by the appellee, made in the trial court before or after the appeal is docketed in the appellate court, the trial court shall require that supersedeas bond or other form of security be given with such surety and in such amount as the court may require, conditioned for the satisfaction of the judgment in full, together with costs, interest, and damages for delay if the appeal is found to be frivolous. When the judgment is for the recovery of money not otherwise secured, the amount of the bond or other form of security shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the court after notice and hearing and for good cause shown fixes a lesser amount. When the judgment determines the disposition of the property in controversy as in real actions, trover, and actions to foreclose mortgages and other security instruments, or when such property is in the custody of the sheriff or other levying officer, or when the proceeds of such property or a bond for its value are in the custody or control of the court, the amount of the supersedeas bond or other form of security shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay.

(b) Notwithstanding subsection (a) of this Code section, in any civil case under any legal theory, including cases involving individual, aggregated, class-action, or otherwise joined claims, the amount of supersedeas bond or other form of security to be furnished during the pendency of all appeals or discretionary reviews of any judgment granting legal, equitable, or any other form of relief or damages, including compensatory, special, punitive, exemplary, or other damages, in order to stay execution of the judgment during the entire course of appellate review by any court shall be set in accordance with applicable laws or court rules, but the total supersedeas bond or other form of security that is required of all appellants collectively shall not exceed $25 million regardless of the value of the judgment.

(c) If supersedeas bond or other form of security is not filed within the time specified by the judge, or if the bond or other form of security filed is found insufficient, a bond or other form of security may be filed at such time as may be fixed by the trial court.

(d) By entering into an appeal or supersedeas bond or other form of security given pursuant to this Code section, the surety submits himself or herself to the jurisdiction of the court and irrevocably appoints the clerk of the court as the surety's agent upon whom any papers affecting the surety's liability on the bond may be served. The surety's liability may be enforced on motion without the necessity of notice or an independent action.

(e) Nothing in this Code section shall deprive the superior courts of their separate power to grant supersedeas under paragraph (1) of Code Section 15-6-9 nor deprive the appellate courts of the power to grant supersedeas in such manner as they may determine to meet the ends of justice.

(f) If an appellee proves by a preponderance of the evidence that a party bringing an appeal, for whom the supersedeas bond or other form of security has been limited pursuant to subsection (b) of this Code section, is dissipating or secreting its assets, or diverting assets outside the ordinary course of business to avoid payment of a judgment, a court may require the appellant to post a bond or other form of security in an amount not to exceed the total amount of the judgment.

§ 5-6-47

(a) In all civil cases where the party taking an appeal files an affidavit stating that because of his indigence he is unable to pay costs or to post a supersedeas bond, if any, as may be required by the trial judge as provided in Code Section 5-6-46, the notice of appeal and affidavit of indigence shall act as supersedeas.

(b) Any party at interest or his agent or attorney may contest the truth of the affidavit of indigence by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the trial court under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.

§ 5-6-48

(a) Failure of any party to perfect service of any notice or other paper hereunder shall not work dismissal; but the trial and appellate courts shall at any stage of the proceeding require that parties be served in such manner as will permit a just and expeditious determination of the appeal and shall, when necessary, grant such continuance as may be required under the circumstances.

(b) No appeal shall be dismissed or its validity affected for any cause nor shall consideration of any enumerated error be refused, except:

(1) For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder;

(2) Where the decision or judgment is not then appealable; or

(3) Where the questions presented have become moot.

(c) No appeal shall be dismissed by the appellate court nor consideration of any error therein refused because of failure of any party to cause the transcript of evidence and proceedings to be filed within the time allowed by law or order of court; but the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party. In like manner, the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence; provided, however, that no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays, and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail or statutory overnight delivery, of the amount of costs.

(d) At any stage of the proceedings, either before or after argument, the court shall by order, either with or without motion, provide for all necessary amendments, require the trial court to make corrections in the record or transcript or certify what transpired below which does not appear from the record on appeal, require that additional portions of the record or transcript of proceedings be sent up, or require that a complete transcript of evidence and proceedings be prepared and sent up, or take any other action to perfect the appeal and record so that the appellate court can and will pass upon the appeal and not dismiss it. If an error appears in the notice of appeal, the court shall allow the notice of appeal to be amended at any time prior to judgment to perfect the appeal so that the appellate court can and will pass upon the appeal and not dismiss it.

(e) Dismissal of the appeal shall not affect the validity of the cross appeal where notice therefor has been filed within the time required for cross appeals and where the appellee would still stand to receive benefit or advantage by a decision of his cross appeal.

(f) Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed. An appeal shall not be dismissed nor consideration thereof refused because of failure of the court reporter to file the transcript of evidence and proceedings within the time allowed by law or order of court unless it affirmatively appears from the record that the failure was caused by the appellant.

§ 5-6-49

(a) Bills of exceptions, exceptions pendente lite, assignments of error, and all rules relating thereto are abolished.

(b) Motions for new trial and for judgment notwithstanding the verdict need not set out portions of the record or transcript of evidence and it shall not be necessary that the grounds thereof be complete in themselves or be approved by the court; provided, however, that the motions must be sufficiently definite to inform the opposite party of the contention of the movant.

§ 5-6-50

The procedure provided in this article shall serve all purposes which a bill of exceptions or writ of error has served in the past; and, where under any law of force in this state provision is made for the taking of writs of error or bills of exception, the procedure prescribed in this article shall be deemed to apply in lieu thereof as to the procedure and as to all time requirements.

§ 5-6-51

The following suggested forms are declared to be sufficient, but any other form substantially complying therewith shall also be sufficient:

(1) NOTICE OF APPEAL--CIVIL CASES.

IN THE _____ COURT OF _____ COUNTY

STATE OF GEORGIA

NOTICE OF APPEAL

Notice is hereby given that _____ and _____, defendants above-named, hereby appeal to the _____ (Court of Appeals or Supreme Court) from the _____ (describe order or judgment) entered in this action on (date), _____.

Motion for new trial (or motion for judgment n.o.v., etc.) was filed and overruled (or granted, etc.) on (date), _____.

The clerk will please omit the following from the record on appeal:

1. ---

2. ---

3. ---

Transcript of evidence and proceedings will/will not be filed for inclusion in the record on appeal.

This court, rather than the (Court of Appeals or Supreme Court) has jurisdiction of this case on appeal for the reason that _____.

(CERTIFICATE OF SERVICE)

(2) NOTICE OF APPEAL--CRIMINAL CASES.

IN THE _____ COURT OF _____ COUNTY

STATE OF GEORGIA

NOTICE OF APPEAL

Notice is hereby given that _____, defendant above-named, hereby appeals to the _____ (Court of Appeals or Supreme Court) from the judgment of conviction and sentence entered herein on (date), _____.

The offense(s) for which defendant was convicted is (are) _____, and the sentence(s) imposed is (are) as follows: _____.

Motion for new trial (or motion in arrest of judgment, etc.) was filed and overruled on (date), _____.

The clerk will please omit the following from the record on appeal:

1. ---

2. ---

3. ---

Transcript of evidence and proceedings will/will not be filed for inclusion in the record on appeal.

This court, rather than the (Court of Appeals or Supreme Court) has jurisdiction of this case on appeal for the reason that _____.

(CERTIFICATE OF SERVICE)

(3) NOTICE OF CROSS APPEAL.

IN THE _____ COURT OF _____ COUNTY

STATE OF GEORGIA

NOTICE OF CROSS APPEAL

Notice is hereby given that _____, one of the defendants above-named, hereby cross appeals to the _____ (Court of Appeals or Supreme Court) from the _____ (describe order or judgment) entered in this action on (date), _____.

Notice of appeal was heretofore filed on (date), _____.

The clerk will please include the following in the record on appeal, all of which were designated for omission by appellant:

1. ---

2. ---

3. ---

Transcript of evidence and proceedings (will be filed) (will not be filed) (has already been designated to be filed by appellant) for inclusion in the record on appeal.

(CERTIFICATE OF SERVICE)

(4) ENUMERATION OF ERRORS.

ENUMERATION OF ERRORS

1. The court erred in charging the jury on gross negligence.

2. The court erred in admitting the testimony of witness Smith concerning his opinion as to how the collision happened.

3. The court erred in refusing to grant a mistrial because of the misconduct of plaintiff's attorney in oral argument.

4. The court erred in refusing to admit in evidence testimony of witness Jones concerning his estimate as to damages.

5. The court erred in denying defendant's motion for continuance.

Chapter 7 Appeal or Certiorari by State in Criminal Cases

§ 5-7-1

(a) An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts, and juvenile courts and such other courts from which a direct appeal is authorized to the Court of Appeals or the Supreme Court in criminal cases and adjudication of delinquency cases in the following instances:

(1) From an order, decision, or judgment setting aside or dismissing any indictment, accusation, or a petition alleging that a child has committed a delinquent act, or any count thereof;

(2) From an order, decision, or judgment arresting judgment of conviction or adjudication of delinquency upon legal grounds;

(3) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy;

(4) From an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first;

(5) From an order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first, if:

(A) Notwithstanding the provisions of Code Section 5-6-38, the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and

(B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding;

(6) From an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state;

(7) From an order, decision, or judgment of a superior court transferring a case to the juvenile court pursuant to Code Section 15-11-560 or subsection (b) of Code Section 17-7-50.1;

(8) From an order, decision, or judgment of a court granting a motion for new trial or an extraordinary motion for new trial;

(9) From an order, decision, or judgment denying a motion by the state to recuse or disqualify a judge made and ruled upon prior to the defendant being put in jeopardy;

(10) From an order, decision, or judgment issued pursuant to subsection (c) of Code Section 17-10-6.2; or

(11) From an order, decision, or judgment that reduces the mandatory minimum sentence as provided in subsection (k) of Code Section 16-15-4.

(b) In any instance in which any appeal is taken by and on behalf of the State of Georgia in a criminal case, the defendant shall have the right to cross appeal. Such cross appeal shall be subject to the same rules of practice and procedure as provided for in civil cases under Code Section 5-6-38.

(c) In any instance in which the defendant in a criminal case applies for and is granted an interlocutory appeal as provided in Code Section 5-6-34 or an appeal is taken pursuant to Code Section 17-10-35.1, the state shall have the right to cross appeal on any matter ruled on prior to the impaneling of a jury or the defendant being put in jeopardy. Such cross appeal shall be subject to the same rules of practice and procedure as provided for in civil cases under Code Section 5-6-38. The state shall not be required to obtain a certificate of immediate review for such cross appeal.

§ 5-7-2

(a) Except as provided in subsection (b) of this Code section, in any appeal under this chapter where the order, decision, or judgment is not final, it shall be necessary that the trial judge certify within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that an immediate review should be had.

(b) A certificate of immediate review shall not be required from an:

(1) Order, decision, or judgment suppressing or excluding evidence as set forth in paragraph (4) or (5) of subsection (a) of Code Section 5-7-1; or

(2) Order, decision, or judgment described in paragraph (1) or (7) of subsection (a) of Code Section 5-7-1.

(c) For purposes of this Code section, the granting of a motion for new trial or an extraordinary motion for new trial shall be considered a final order.

§ 5-7-3

A proceeding by certiorari or petition for review may be taken by and on behalf of the State of Georgia from one court to another court of this state, where the right of certiorari is provided as a procedure for appealing a judgment, in the specified situations set forth in Code Sections 5-7-1 and 5-7-2.

§ 5-7-4

An appeal by the state, except as otherwise provided for in this chapter, and certiorari by the state, when authorized by this chapter, shall be governed by the same laws and provisions as to time and other procedures as apply to other appellants in criminal cases.

§ 5-7-5

In the event the state files an appeal as authorized in this chapter, the accused shall be entitled to be released on reasonable bail pending the disposition of the appeal, except in those cases punishable by death. The amount of the bail, to be set by the court, shall be reviewable on direct application by the court to which the appeal is taken.

§ 5-7-6

This chapter shall be liberally construed to effectuate the purposes stated in this chapter.