CARTER v. FAYETTE COUNTY (1997)

In this action, alleging wrongful or excessive levy in execution of judgments, claimant Anthony J. Carter filed his pro se notice of appeal on March 27, 1997, complaining of an alleged “Order on Return of Sheriff filed October 7, 1996.”   Held:

 “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.”  OCGA § 5-6-38(a).  “ ‘The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.’  Jordan v. Caldwell, 229 Ga. 343, 344, 191 S.E.2d 530.”  Barnes v. Justis, 223 Ga.App. 671, 672, 478 S.E.2d 402.   In the case sub judice, the “RETURN OF SHERIFF” is not itself an appealable order.   Scrutiny of the record reveals an “ORDER ON CLAIM OF JOHN ALAN CARTER,” filed February 3, 1997.   But the March 27, 1997 notice of appeal from an order dated February 3, 1997, is not timely under OCGA § 5-6-38(a).   Since we are without jurisdiction to consider this appeal, it must be dismissed.

Appeal dismissed.

McMURRAY, Presiding Judge.

BEASLEY and SMITH, JJ., concur.