Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 02, 2017
The Court of Appeals hereby passes the following order:
A17D0242. IN RE: ESTATE OF JIMMY DARRYL BANKS.
Jimmy D. Banks, Jr., has filed an application for discretionary appeal, seeking
review of an order of the Meriwether County Probate Court granting a motion to
establish ownership of property in this estate administration proceeding. OCGA
§ 15-9-123 (a) provides that any party to a civil case in probate court shall have the
right of appeal to this Court or the Supreme Court. A “probate court” for purposes
of this statute, however, is defined, in relevant part, as “a probate court of a county
having a population of more than 90,000 persons according to the United States
decennial census of 2010 or any future such census.” OCGA § 15-9-120 (2). As the
Meriwether County Probate Court does not meet this requirement, § 15-9-123 (a) is
not applicable to appeals from the rulings and judgments of that court. See 2010
Census, OCGA Vol. 42A, 2016 Supp., p. 60 (listing a 2010 population of 21,992 for
Meriwether County). Instead, OCGA § 5-3-2 (a) vests the superior court with
appellate jurisdiction over any probate court decision other than an order appointing
a temporary administrator. Appellate jurisdiction in this case thus is controlled by
§ 5-3-2 (a), and not by § 15-9-123 (a).
The Georgia Constitution provides that “[a]ny court shall transfer to the
appropriate court in the state any civil case in which it determines that jurisdiction or
venue lies elsewhere.” Ga. Const. of 1983, Art. VI, Sec. I, Par. VIII; Bosma v.
Gunter, 258 Ga. 664, 665 (373 SE2d 368) (1988). Although appellate jurisdiction in
this action lies in the superior court as a general matter, an appeal under § 5-3-2 is
available only from a final judgment. See Driver v. State, 198 Ga. App. 643, 644
(402 SE2d 524) (1991) (no right of appeal to the superior court lies from an
interlocutory ruling in the probate court); Sears v. State, 196 Ga. App. 207, 207 (396
SE2d 1) (1990) (same). The probate court’s order here is not a final judgment, as the
estate administration proceeding remains pending before that court. Consequently,
because there is no court in which appellate jurisdiction over the probate court’s order
lies, this application is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/02/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
In Re: Estate of Jimmy Darryl Banks
Combined Opinion