GA Code § 9-11-62 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 11 - Civil Practice Act|Article 6 - Trials|§ 9-11-62. Stay of Proceedings to Enforce a Judgment

  Stay upon entry of judgment. No execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after its entry, except that, in the case of a default judgment, execution may issue and enforcement proceedings may be taken at any time after entry of judgment and except that, in any case in which both the plaintiff or plaintiffs and the defendant or defendants agree, in writing, and file a copy of such agreement with the clerk of the court, execution may issue and enforcement proceedings may be taken at any time after entry of judgment. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. Subsection (c) of this Code section governs the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.   Stay on motion for new trial or for judgment. The filing of a motion for a new trial or motion for judgment notwithstanding the verdict shall act as supersedeas unless otherwise ordered by the court; but the court may condition supersedeas upon the giving of bond with good security in such amounts as the court may order.   Injunction pending appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.   Stay in favor of the state or agency thereof. When an appeal is taken by the state or by any county, city, or town within the state, or an officer or agency thereof, and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.   Power of appellate court not limited. The provisions in this Code section do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve that status quo or the effectiveness of the judgment subsequently to be entered.   Stay of judgment as to multiple claims or multiple parties. When a court has ordered a final judgment under the conditions stated in subsection (b) of Code Section 9-11-54, the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.    (Ga. L. 1966, p. 609, § 62; Ga. L. 1967, p. 226, § 28; Ga. L. 1970, p. 550, § 1; Ga. L. 1972, p. 689, § 9; Ga. L. 1973, p. 693, § 1.)   Cross references.   - Suspension of judgment by entry of appeal, § 9-12-19.   U.S. Code.   - For provisions of Federal Rules of Civil Procedure, Rule 62, and annotations pertaining thereto, see 28 U.S.C.   Law reviews.   - For note discussing procedure for issuance and amendment of a writ of execution, see 12 Ga. L. Rev. 814 (1978).   JUDICIAL DECISIONS   Judgments effective upon entry.    - Absent supersedeas, judgments are effective and therefore payable upon entry, even though execution thereon may be delayed ten days. Leventhal v. Citizens & S. Nat'l Bank, 249 Ga. 390, 291 S.E.2d 222 (1982).    Clear mandate of subsection (a) of O.C.G.A. § 9-11-62 is to provide the party against whom a judgment has been entered the right to be free from execution and from proceedings for enforcement of the judgment for a period of ten days in order to determine the party's future course of action. Bank S. v. Roswell Jeep Eagle, Inc., 200 Ga. App. 489, 408 S.E.2d 503 (1991).    Trial court's issuance of a writ of fieri facias at the time of the entry of the court's judgment against a law client violated O.C.G.A. § 9-11-62(a) as the judgment deprived the client of the client's right to be free from execution of the judgment for ten days in order to determine the client's future course of conduct; however, the trial court thereafter ordered that the client could post a cash bond, which rendered the issuance of the writ harmless. Landau v. Davis Law Group, P.C., 269 Ga. App. 904, 605 S.E.2d 461 (2004).   Exemption of injunction cases from automatic supersedeas.    - It was the intention of the legislature in enacting Ga. L. 1966, p. 609, § 62 (see now O.C.G.A. § 9-11-62) to exempt injunction cases from the automatic supersedeas provisions of former Code 1933, § 6-1002 (see now O.C.G.A. § 5-6-46). Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); Davis v. Creative Land Dev. Corp., 230 Ga. 47, 195 S.E.2d 411 (1973).    Trial court had authority to hold a property owner in contempt for failure to comply with a court order that imposed a permanent restraining order in favor of the owner's neighbors, even though the order was on appeal, as there was no order by the court that stayed the judgment pending appeal, pursuant to O.C.G.A. § 9-11-62(a), which was an exception to the automatic supersedeas provisions of O.C.G.A. § 5-6-46. Knapp v. Cross, 279 Ga. App. 632, 632 S.E.2d 157 (2006).    Because a property owner complied with an injunction without first obtaining a grant of supersedeas, the owner's appeal from the judgment granting the injunction was dismissed as moot, pursuant to a rule of equitable jurisprudence and appellate procedure as well as O.C.G.A. § 9-11-62(a). Babb v. Putnam County, 269 Ga. App. 431, 605 S.E.2d 33 (2004).   Exemption of receivership case from automatic supersedeas.    - In an action to dissolve a corporation, the filing of a notice of appeal from an order providing for either a forced sale or redesignation of a custodian as a receiver did not divest the trial court of jurisdiction to enter a final order converting the custodianship into a receivership since the final order merely implemented the earlier determination. Black v. Graham, 266 Ga. 154, 464 S.E.2d 814 (1996).   Exemption of administrative decisions from automatic supersedeas.    - In an action in which the school district appealed an administrative law judge's (ALJ) decision in favor of the parents that awarded $14,875 to the parents for reimbursement of the cost of private education services provided to the child and paid for by the child's parents, enforcement of that provision of the ALJ's final decision was stayed pursuant to Fed. R. Civ. P. 62(f) because in Georgia, the school district was a county agency, under O.C.G.A. § 9-11-62(d), the district would be entitled to a stay without having to post a bond. Dekalb County Sch. Dist. v. J.W.M., 445 F. Supp. 2d 1371 (N.D. Ga. 2006).    Good cause for a supersedeas bond was financial difficulties. Leventhal v. Seiter, 208 Ga. App. 158, 430 S.E.2d 378 (1993).    Trial court is empowered to suspend or modify an injunction after appeal is taken therefrom by requiring a bond of plaintiff or otherwise so as to insure the security of the rights of the adverse party. Stephens v. Geise, 226 Ga. 639, 176 S.E.2d 923 (1970).    Under subsection (c) of O.C.G.A. § 9-11-62, the trial court was authorized to modify an earlier order to protect the rights of the parties notwithstanding a pending appeal. Etheredge v. All Am. Hummer Limousines, Inc., 269 Ga. 436, 498 S.E.2d 60 (1998).    Burden rests upon appellant to obtain such order as will protect the appellant's rights and preserve the status quo during the pendency of the appeal. Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); Davis v. Creative Land Dev. Corp., 230 Ga. 47, 195 S.E.2d 411 (1973).    To stop an action that has been ordered by trial court, supersedeas must be obtained from the trial court or from an appellate court in the event the trial court refuses to grant a supersedeas. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974).   Failure to file supersedeas or notice of appeal.    - Subsection (a) of O.C.G.A. § 9-11-62, by negative implication, clearly allows an execution to issue upon a judgement after the ten-day period has run, if a notice of appeal or post-trial motion acting as a supersedeas has not been filed. Bank S. v. Roswell Jeep Eagle, Inc., 200 Ga. App. 489, 408 S.E.2d 503 (1991).   Once ordered action is done appeal becomes moot.    - Without supersedeas, an action ordered by the trial court must be done as ordered, and once the ordered action is taken, the complaint about its being erroneously ordered becomes moot. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974); Jackson v. Bibb County Sch. Dist., 271 Ga. 18, 515 S.E.2d 151 (1999); Peters v. State, 237 Ga. App. 625, 516 S.E.2d 331 (1999).    To prevent appeal of an order requiring action which may affect the rights of litigants from becoming moot, it is necessary for the appealing party to obtain a supersedeas; if supersedeas is not obtained, and the ordered action takes place as ordered, the appeal becomes moot. Padgett v. Cowart, 232 Ga. 633, 208 S.E.2d 455 (1974); Jackson v. Bibb County Sch. Dist., 271 Ga. 18, 515 S.E.2d 151 (1999).    Vendor's appeal from a one-year disqualification period from the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) was moot because the one-year period had expired by the time the appeal was heard; the vendor had not sought a stay or an injunction preventing the disqualification from taking place pending the appeal, pursuant to O.C.G.A. § 9-11-62. Babies Right Start v. Ga. Dep't of Pub. Health, 293 Ga. 553, 748 S.E.2d 404 (2013).   Injunction pending appeal properly granted.    - In a threatened foreclosure case in which the trial court concluded that an injunction pending final judgment was not warranted, but granted the appellants' injunction pending appeal, the trial court properly granted the appellants an injunction to prohibit any foreclosure pending the resolution of their appeal because, especially in light of the trial court's initial and provisional determination that an interlocutory injunction pending final judgment might be appropriate, the trial court did not err in finding the case close enough to warrant an injunction pending appeal. Green Bull Ga. Partners, LLC v. Register, 301 Ga. 472, 801 S.E.2d 843 (2017).   Appeals not to amount to independent establishment of injunction.    - No appeal from denial of an injunction should have the effect of establishing an injunction independently of an order of the court entered pursuant to subsection (c) of this section. Howard v. Smith, 226 Ga. 850, 178 S.E.2d 159 (1970); Davis v. Creative Land Dev. Corp., 230 Ga. 47, 195 S.E.2d 411 (1973).    Mere appeal from an order denying an injunction, without further application for an interim order of supersedeas, does not impose any judicial restraint upon appellees' activities nor prohibit execution of the matter sought to be enjoined. Clarke v. City of Atlanta, 231 Ga. 84, 200 S.E.2d 264 (1973).    When judgment is entered declining to enjoin consummation of a future transaction, there is no legal impediment to prohibit the transaction from thereafter being effected; to erect such an impediment it is necessary for the losing party in the trial court to apply to such court for an injunction during the pendency of the appeal, and if the trial court denies such injunction, the losing party may then apply to the Supreme Court therefor. Citizens to Save Paulding County v. City of Atlanta, 236 Ga. 125, 223 S.E.2d 101 (1976).   Appeal from denial of injunction moot once act is done.    - When injunctive relief is denied at the trial level, and pending appeal such relief is not allowed by either the trial court or the Supreme Court, there is no legal prohibition against consummation of the act or transaction in question, and once such act or transaction has been consummated, appeal from the judgment that denied injunctive relief becomes moot. Citizens to Save Paulding County v. City of Atlanta, 236 Ga. 125, 223 S.E.2d 101 (1976).   Appeals from restraining orders.    - In action to enjoin holding of corporate stockholders meeting for the purpose of electing directors, when the trial court, after hearing, dissolves a restraining order and dismisses the complaint for failure to state a claim, and the stockholder's meeting is then held, an appeal of the order dissolving the restraining order and dismissing the complaint must be dismissed pursuant to Ga. L. 1972, p. 624, § 1 (see now O.C.G.A. § 5-6-48). Strickland v. Adams, 231 Ga. 729, 204 S.E.2d 294 (1974).    Trial court has no authority to require county to post a supersedeas bond. Guhl v. Tuggle, 242 Ga. 412, 249 S.E.2d 219 (1978).   Indigency does not avoid bond requirement.    - O.C.G.A. § 9-11-62 contains no provision for avoiding bond by filing an indigency affidavit. Byelick v. Michel Herbelin U.S.A., Inc., 260 Ga. App. 111, 578 S.E.2d 907 (2003).   Dismissal of prematurely instituted garnishment action.    - Ordering that funds be paid into court and merely suspending the funds' disbursal until such time as the judgment becomes final or until a supersedeas bond is posted is clearly not harmless when the proper action was dismissal of a prematurely instituted garnishment action. Tate v. Burns, 172 Ga. App. 688, 324 S.E.2d 485 (1984).   Exempting custody provisions for the supersedeas action.    - Appellate court found no error in the trial court's inclusion in the court's grant of a husband's motion for supersedeas bond a provision excepting the custody provisions of the final decree from the supersedeas arising from the wife's filing of a motion for new trial. Frazier v. Frazier, 280 Ga. 687, 631 S.E.2d 666 (2006).   Motion for new trial did not act as supersedeas given court's order to abide by child support award.    - Trial court did not err in holding a spouse in contempt for failing to pay the child support that accrued while the spouse's motion for new trial was pending; O.C.G.A. § 9-11-62(b) provided that filing a motion for new trial acted as a supersedeas unless otherwise ordered, and in this case, the trial court ordered the spouse to abide by the child support award. Franklin v. Franklin, 294 Ga. 204, 751 S.E.2d 411 (2013).    Cited in Berrie v. Baucknecht, 224 Ga. 432, 162 S.E.2d 317 (1968); Martin v. GMC, Fisher Body Div., 224 Ga. 677, 164 S.E.2d 107 (1968); Dennis v. City of Palmetto, 226 Ga. 853, 178 S.E.2d 161 (1970); Kilgore v. Buice, 229 Ga. 445, 192 S.E.2d 256 (1972); Lott v. Foskey, 230 Ga. 134, 196 S.E.2d 141 (1973); McGee v. Craig, 230 Ga. 553, 198 S.E.2d 165 (1973); Brown v. Auchmuty, 232 Ga. 879, 209 S.E.2d 209 (1974); McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975); Datry v. Metropolitan Atlanta Rapid Transit Auth., 235 Ga. 521, 221 S.E.2d 8 (1975); Georgia Ass'n of Educators v. Harris, 403 F. Supp. 961 (N.D. Ga. 1975); Adair v. Adair, 236 Ga. 443, 224 S.E.2d 21 (1976); Herring v. Herring, 138 Ga. App. 145, 225 S.E.2d 697 (1976); Killingsworth v. First Nat'l Bank, 237 Ga. 544, 228 S.E.2d 901 (1976); Anthony v. Anthony, 239 Ga. 273, 236 S.E.2d 621 (1977); Faulkner v. Georgia Power Co., 241 Ga. 618, 247 S.E.2d 80 (1978); Exum v. Long, 157 Ga. App. 592, 278 S.E.2d 13 (1981); Imperial Body Works, Inc. v. National Claims Serv., Inc., 158 Ga. App. 241, 279 S.E.2d 534 (1981); Hunnicutt v. Hunnicutt, 248 Ga. 516, 283 S.E.2d 891 (1981); Williamson v. Bank Bldg. & Equip. Corp. of Am., 162 Ga. App. 295, 291 S.E.2d 124 (1982); Radio Webs, Inc. v. Tele-Media Corp., 249 Ga. 598, 292 S.E.2d 712 (1982); Ronskowsky v. Peters, 254 Ga. 270, 327 S.E.2d 735 (1985); Jones v. Gordon, 182 Ga. App. 29, 354 S.E.2d 658 (1987); State v. Vurgess, 182 Ga. App. 544, 356 S.E.2d 273 (1987); Bell v. Bell, 247 Ga. App. 462, 543 S.E.2d 455 (2000); Goswick v. Murray County Bd. of Educ., 281 Ga. App. 442, 636 S.E.2d 133 (2006); Coleman v. Retina Consultants, P.C., 286 Ga. 317, 687 S.E.2d 457 (2009); Blackmore v. Blackmore, 311 Ga. App. 885, 717 S.E.2d 504 (2011); Higdon v. Higdon, 321 Ga. App. 260, 739 S.E.2d 498 (2013); Sherman v. Atlanta Indep. Sch. Sys., 293 Ga. 268, 744 S.E.2d 26 (2013).   RESEARCH REFERENCES   Am. Jur. 2d.   - 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 16 et seq.   C.J.S.   - 4 C.J.S., Appeal and Error, § 408 et seq. 33 C.J.S., Executions, § 152 et seq. 35B C.J.S., Federal Civil Procedure, § 1284 et seq. 49 C.J.S., Judgments, § 131 et seq.   ALR.    - Right of state or federal court to protect litigants by enjoining proceedings in bankruptcy, 32 A.L.R. 979.    Judicial, execution, or tax sale on election day, holiday, or Sunday, 58 A.L.R. 1273.    Appeal from award of injunction as stay or supersedeas, 93 A.L.R. 709.    Character, as direct or collateral attack, of action to set aside judgment, as affected by prayer for relief in respect of execution or other proceeding to enforce it, 140 A.L.R. 823.    Injunction pendente lite in suit for divorce or separation, 164 A.L.R. 321.