English v. Delbridge

Plaintiff P. T. Delbridge, Jr., brought an action on account against defendant Frank English in the Magistrate Court of Tift County, Georgia, alleging that English owed him $2,000 pursuant to a contract to provide siding to defendant’s home. Defendant answered and counterclaimed for breach of contract, alleging that plaintiff’s “sloppy [and] poor workmanship [required] extra expense to complete [the] job. . . .” His counterclaim (in the nature of set-off) demanded $1,284. The magistrate found that plaintiff failed to carry his burden of proof and plaintiff appealed to the Superior Court of Tift County, Georgia. After a trial de novo, the jury returned a verdict for plaintiff, awarding him $1,650 plus costs. Proceeding pro se, defendant filed this direct appeal. Held-.

Decided February 10, 1995

Reconsideration denied February 22, 1995.

Frank English, pro se.

P. T. Delbridge, Jr., pro se.

“Appeals from decisions of the superior courts reviewing decisions of . . . lower courts by certiorari or de novo proceedings . . shall be by application for discretionary appeal. OCGA § 5-6-35 (a) (1), (b). “The clear intent of section (a) (1), above, was to give the appellate courts (particularly the Court of Appeals . . .) the discretion not to entertain an appeal where the superior court had reviewed a decision of certain specified lower tribunals (i.e., two tribunals had already adjudicated the case).” C & S Nat. Bank v. Rayle, 246 Ga. 727, 730 (273 SE2d 139). In the case sub judice, the judgment of the superior court entered on the jury verdict after a trial de novo represents review of lower court proceedings, i.e., the judgment of the magistrate court, and requires an application to this court for permission to pursue a discretionary appeal. Moreover, this final judgment awards contractual damages in an amount less than $10,000, and so would require an application for discretionary appeal pursuant to OCGA § 5-6-35 (a) (6). “ ‘Because the appeal to this Court is taken from the decision of a [superior] court reviewing a decision of a magistrate court by a de novo proceeding involving a subject matter not otherwise subject to a right of direct appeal, the discretionary appeal procedures of OCGA § 5-6-35 were required and this appeal must be dismissed. (Cit.); OCGA § 5-6-35 (a) ([1]).’ Lewis v. Barclays American/Mortgage Corp., 204 Ga. App. 227 (419 SE2d 538) (1992).” Crowder v. Citizens Trust Bank, 213 Ga. App. 477 (444 SE2d 853).

Appeal dismissed.

Andrews and Blackburn, JJ., concur.