Mack v. Third Bedford-Pines Apartments, Ltd.

Beasley, Judge,

concurring specially.

I concur fully in Division 2 but reach the ruling in Division 1, regarding jurisdiction, for a different reason.

During the pendency of the action, the trial court ordered the clerk to pay to the landlord those amounts of rent which had been paid into the registry by tenant and were not in controversy. This is provided for in OCGA § 44-7-54 (c) as a mechanism for retaining only those funds representing rent about which there is a dispute. By the time of trial there was only $507 in the registry, representing the amount which had been paid in by the tenant but was in dispute and thus subject to the court’s judgment.

Based on the court’s findings of fact, it concluded that plaintiff was entitled to the $507 plus $1,172. The judgment was entered for the latter amount only, plus costs, since plaintiff would receive $507 from the clerk as the final order directed and could not be given a judgment including that amount on which to levy. Thus the total amount in the controversy which the court had to resolve was $1,679, as defendant tenant had claimed that only $169 per month rent was due.

Consequently, the threshold amount for nondiscretionary appeals which is set out in OCGA § 5-6-35 (a) (3) is not met, and an application for appeal would be required but for the fact that the judgment also awards a writ of possession. The right to possession having been an additional issue resolved by the judgment appealed from, OCGA § 5-6-35 (a) (3) does not apply. Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457, 458 (339 SE2d 590) (1986). Contrary to appellant’s argu*840ment, it is irrelevant that plaintiff, after the judgment was entered, did not obtain the writ to which it was entitled.

Decided December 5, 1989. James Mack, pro se. Wallace & deMayo, John L. Skelton, Jr., for appellee.