When a trial court denies a motion for new trial, a direct appeal is authorized; however, when a trial court denies a motion to set aside a judgment, a discretionary application must be filed. OCGA 5-6-35
(a) (8). The issue raised by this case is whether the application procedure can be circumvented by filing a direct appeal of the denial of the motion for new trial that includes the denial of the motion to set aside.
A careful reading of OCGA 5-6-35
leads us to the inescapable conclusion that the legislature never intended for the application procedure to be circumvented. The statute begins by stating, "Appeals in the following cases shall be taken as provided in this Code section" and goes on to include within the following cases appeals from orders "denying a motion to set aside a judgment." OCGA 5-6-35
(8). Subsection (b) provides, "All appeals taken in cases specified in subsection (a) of this Code section shall be by application. . . ." Thus the statute makes it clear that an application must be filed to appeal from an order denying a motion to set aside a judgment.
Subsection (d) indicates the legislature's preference for the discretionary application process even in cases in which a motion for new trial is also filed. OCGA 5-6-35
(d) divides the time limits for filing discretionary applications in two parts. 1) When only a motion to set aside has been denied by the trial court, the application must be filed within 30 days of the entry of the order denying the motion to set aside. 2) When a motion for new trial and a motion to set aside a judgment have both been denied by the trial court, the application must be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion for new trial.
The legislature expressly set out a special time limitation for filing discretionary applications when a motion for new trial has also been filed. The legislature intended for the application process to be followed and did not intend for the process to be circumvented by filing a motion for new trial.