The principal question in this case is whether the state court has jurisdiction to hear de novo an appeal from a magistrate court’s denial of a new action seeking relief from the entry of default judgment under OCGA § 15-10-43 g, this as distinct from its jurisdiction to review de novo an appeal from the magistrate court’s entry of default judgment in the original action. As to the latter, it is well-settled that “no appeal shall lie from a default judgment. Review shall be by certiorari to the state court of that county or to the superior court of that county.” OCGA § 15-10-41 b. Shelley contends that the state court erred in dismissing her de novo appeal of the magistrate court’s judgment upon her petition for relief from judgment as filed in a new action seeking relief from default judgment under OCGA § 15-10-43 b. Otherwise, Shelley claims that upon granting her petition for certiorari, the state court erred in affirming the magistrate court’s judgment on her petition insofar as the magistrate judge found that she had been properly served through her husband and that damages in the underlying action were liquidated, foreclosing the need to hear evidence thereon. Finding that OCGA § 15-10-41 b 2 prohibits any direct appeal from a magistrate court’s entry of default judgment, we affirm since this is an attempt to do by indirection what is prohibited from being done directly.
Appellee-defendant in certiorari Harvey M. Koenig, an attorney, filed a claim for fees in the Magistrate Court of Henry County against a former client, appellant-petitioner in certiorari Ida V. Shelley. The magistrate judge entered a default judgment against Shelley after she failed to appear for the hearing. By letter to the magistrate court, Shelley, pro se , thereafter challenged the perfection of service of process and the propriety of the default judgment. Upon considering Shelley’s claims as a motion to dismiss, a motion to send case to arbitration, and a motion to set aside default judgment, the magistrate court denied them. Shelley filed a notice of appeal in the magistrate court,1 citing the original case number assigned to Koenig’s action against her. The magistrate court, in turn, forwarded the same as a de novo appeal to the State Court of Henry County. See OCGA § 15-10-41 b except as to appeals from default judgment, judgments returned in magistrate court authorized direct appeal de novo to state or superior court of the county. There the state court dismissed the appeal in the alternative, i.e., a if deemed a direct de novo appeal from the magistrate court’s rulings on Shelley’s motions seeking relief from default judgment, then dismissed for failure to file a new action under OCGA § 15-10-43 g; Cardenas v. Limon , 250 Ga. App. 694, 694-695 552 SE2d 884 2001, or, b if deemed an appeal from the default judgment in the original action, then dismissed under OCGA § 15-10-41 b 2 “No appeal shall lie from default judgment. Review shall be by certiorari to the state court or the superior court of that county.”
