Court of Appeals
of the State of Georgia

                                            ATLANTA,____________________
                                                     February 07, 2020

The Court of Appeals hereby passes the following order:

A19A2113. REGINALD A. SMITH et al. v. WILMINGTON SAVINGS FUND
    SOCIETY, FSB.

      This case began as a dispossessory action in magistrate court. Following the
magistrate court’s entry of a dispossessory judgment, defendants Reginald A. Smith,
Sharlene Smith, and Tony L. Ware appealed to the superior court. In the superior
court, the defendants filed a motion for declaratory judgment and permanent
injunction, seeking to prevent the plaintiff from enforcing its security deed or
foreclosing upon the property at issue. On March 25, 2019, the superior court denied
the defendants’ motion, and on April 12, 2019, the defendants filed this appeal. We
lack jurisdiction for two reasons.
      First, appeals from superior court decisions reviewing lower court decisions by
certiorari or de novo proceedings must be initiated by filing an application for
discretionary appeal. OCGA § 5-6-35 (a) (1), (b); Bullock v. Sand, 260 Ga. App. 874,
875 (581 SE2d 333) (2003). “Compliance with the discretionary appeals procedure
is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471
SE2d 60) (1996). The defendants’ failure to follow the proper procedure deprives us
of jurisdiction over this direct appeal.1


      1
        The defendants purport to appeal under OCGA § 5-6-34 (a) (4), which
generally permits direct appeals from “[a]ll judgments or orders granting or refusing
applications . . . for interlocutory or final injunctions[.]” But the underlying subject
matter of an appeal controls over the relief sought in determining the proper appellate
procedure. Radio Sandy Springs, Inc. v. Allen Road Joint Venture, 311 Ga. App. 334,
335 (715 SE2d 752) (2011). In their appeal, the defendants challenge the magistrate
      Second, while a notice of appeal generally must be filed within 30 days of entry
of the order sought to be appealed under OCGA § 5-6-38 (a), under OCGA § 44-7-56,
appeals in dispossessory actions must be filed within seven days of the date the
judgment was entered. See Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 522-523
(521 SE2d 456) (1999). The proper and timely filing of a notice of appeal is an
absolute requirement to confer jurisdiction on this Court. Id. at 523. The defendants’
notice of appeal, filed 18 days after the superior court’s order, is untimely.
      For these reasons, this appeal is hereby DISMISSED.

                                        Court of Appeals of the State of Georgia
                                               Clerk’s Office, Atlanta,____________________
                                                                         02/07/2020
                                               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.




court’s dispossessory judgment and the superior court’s review thereof. Accordingly,
the defendants were required to follow the discretionary appeal procedure to obtain
this Court’s review.
