Anthony v. Anthony

224 S.E.2d 349, 236 Ga. 508, 1976 Ga. LEXIS 919

• Court: Supreme Court of Georgia
• Decided: February 24, 1976
• Docket: 30764
• Status: Published

Opinions

Per curiam.

This is a domestic relations case from Muscogee Superior Court in which a wife sought alimony from her husband. Although the complaint originally alleged the husband was a resident of the county, the sheriff was unable to perfect personal service on him. The wife amended her complaint to allege that her husband was concealing himself in Alabama and that a receiver should be appointed to take charge of the husband’s property in Muscogee County to satisfy any judgment the wife might obtain in her alimony claim. The trial court ordered that the husband be served by publication and also appointed a receiver by an order entered August 27, 1975.

The husband, through his counsel, filed a plea to the jurisdiction of the court which asserted the husband was a resident of Alabama and urged the court to dismiss the action in Georgia. The husband also filed a separate motion to dismiss in which he attacked his wife’s amended complaint as legally insufficient. This motion also asked the trial court to enter an order dismissing the August 27, 1975, order which appointed the receiver. However, no other defensive pleadings were filed by the husband. The plea to the jurisdiction and the motion'to dismiss came on regularly to be heard and considered by the trial court.

Argued February 9, 1976 Decided February 24, 1976 Rehearing denied March 12, 1976. Araguel & Sanders, Jerry D. Sanders, for appellant. Hirsch, Beil & Partin, Milton Hirsch, for appellee.

On October 22, 1975, the trial court entered two separate orders, both dated October 21, 1975. The first order denied the husband’s plea to the jurisdiction. The second order overruled the motion to dismiss. On November 13, 1975, the trial court heard evidence and on November 23,1975, entered a final judgment which awarded title to the husband’s Muscogee County property to the wife as alimony.

The husband has appealed to this court. His notice of appeal was dated and filed November 21,1975. The notice of appeal recites that it is "from the Order denying the Defendant’s Plea to Jurisdiction, dated the 21st day of October, 1975, and entered on October 22, 1975.” It also states that no transcript of evidence will be filed "as no evidence was taken at the hearing on the cause.” The notice of appeal makes no reference to the order dated October 21, 1975, which overruled the husband’s motion to dismiss (in which he sought dismissal of the receiver) or to the final judgment dated November 13, 1975, which was filed on November 23, 1975.

Under the record in this case, we have an appeal only from the trial court’s order "denying the Defendant’s [husband] Plea to Jurisdiction.” This was an interlocutory order and it is not appealable without a certificate of immediate review. See Code Ann. § 6-701 (a) 2 (A) and (B). Therefore, the appellee wife’s motion to dismiss the appeal must be granted.

Appeal dismissed.

All the Justices concur, except Hill, J., who concurs in the judgment only and Jordan and Hall, JJ., who dissent.