C & a Land Company v. Wilson Construction Corporation

Court of Appeals of Georgia

C & a Land Company v. Wilson Construction Corporation

161 S.E.2d 922, 117 Ga. App. 744, 1968 Ga. App. LEXIS 1213

Court of Appeals of Georgia·Decided May 3, 1968·No. 43543, 43544·Published·Cited by 4 cases

Opinion

Deen, Judge.

Code Ann. § 81A-156 (h) (Ga. L. 1967, pp. 226, 238), invoked by the appellee in its motion to dismiss the appeal, states in part: “An order denying summary judgment is not subject to review by direct appeal or otherwise, unless within 10 days of the order of denial the trial judge certifies that the order denying summary judgment as to any issue or as to any party should be subject to review, in which case such order shall be subject to review by direct appeal.” Such certification was not made in this case. See Davis v. Holt, 224 Ga. 55 (159 SE2d 403). As a matter of fact it should be made use of only sparingly in close cases where real doubt exists as to the merits of the motion. Otherwise, routine certification by trial courts of the appealability of orders denying motions for summary judgment might well annul the legisla *745 tive intent as to Section (h), the purpose of which was to do away with unnecessary delay and to assist the flow of cases toward a trial on their merits.

Submitted April 3,1968 Decided May 3,1968. Harvey A. Clein, Schwall & Hewett, Emory A. Schwall, for appellants. Claude E. Hambrick, Swertfeger, Scott & Pike, L. Jack Swertfeger, W. Fred Orr, for appellee.

Appeal dismissed.

Jordan, P: J., and Pannell, J., concur.

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Deen, Judge.

Code Ann. § 81A-156 (h) (Ga. L. 1967, pp. 226, 238), invoked by the appellee in its motion to dismiss the appeal, states in part: “An order denying summary judgment is not subject to review by direct appeal or otherwise, unless within 10 days of the order of denial the trial judge certifies that the order denying summary judgment as to any issue or as to any party should be subject to review, in which case such order shall be subject to review by direct appeal.” Such certification was not made in this case. See Davis v. Holt, 224 Ga. 55 (159 SE2d 403). As a matter of fact it should be made use of only sparingly in close cases where real doubt exists as to the merits of the motion. Otherwise, routine certification by trial courts of the appealability of orders denying motions for summary judgment might well annul the legisla *745 tive intent as to Section (h), the purpose of which was to do away with unnecessary delay and to assist the flow of cases toward a trial on their merits.

Submitted April 3,1968 Decided May 3,1968. Harvey A. Clein, Schwall & Hewett, Emory A. Schwall, for appellants. Claude E. Hambrick, Swertfeger, Scott & Pike, L. Jack Swertfeger, W. Fred Orr, for appellee.

Appeal dismissed.

Jordan, P: J., and Pannell, J., concur.

C & a Land Company v. Wilson Construction Corporation, 161 S.E.2d 922, 117 Ga. App. 744, 1968 Ga. App. LEXIS 1213 (Ga. Ct. App. 1968).

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Opinion

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