Boynton v. Reeves

173 S.E.2d 702, 226 Ga. 202, 1970 Ga. LEXIS 482

• Court: Supreme Court of Georgia
• Decided: March 5, 1970
• Docket: 25585
• Status: Published

Opinion

Frankum, Justice.

The notice of appeal in this case states that the order appealed from is “the final order entered herein on July 18, 1969, and the judgment thereon, dismissing” the appellants’ petition for failure to state a claim upon which relief could be granted. Upon examination of the record, no such order or judgment was found. However, in the reporter’s transcript it does appear that in a colloquy between the trial judge and the counsel for the parties the judge announced that he would sustain the motion to dismiss as set out in paragraph 7 of the defendant’s answer and motion. The Clerk of the Superior Court of Spalding County has certified that no written order was issued in this case. Under these circumstances there is no appealable judgment in the record. Under the Appellate Practice Act the well established rule that “what the judge orally declares is no judgment until it has been put in writing and entered as such,” is still of force, and both a written judgment and its entry by filing the writing with the clerk are essential prerequisites to an appeal. Construction & General Laborers Union v. Williams Constr. Co., 212 Ga. 691 (1) (95 SE2d 281); Seabolt v. Seabolt, 220 Ga. 181 (1) (137 SE2d 642); Gibson v. Hodges, 221 Ga. 779 (2) (147 SE2d 329); Olivet v. State, 117 Ga. App. 860 (1) (162 SE2d 306); Code Ann. § 6-903 (Ga. L. 1965, pp. 18, 32).

Submitted January 13, 1970 Decided March 5, 1970. Howard Moore, Jr., Peter E. Rindskopf, for appellants. Cumming, Gumming ■& Gumming, Joseph R. Gumming, for appellees.

Appeal dismissed.

All the Justices concur.