Commercial Bank v. Simmons

278 S.E.2d 53, 157 Ga. App. 391, 1981 Ga. App. LEXIS 1831

Opinion

Quillian, Chief Judge.

The plaintiff obtained judgment by default against the defendant. The plaintiff then filed post judgment interrogatories which were not answered by the defendant. On plaintiffs motion to compel discovery, the trial judge entered an order directing the defendant to answer within Í5 days. The defendant not having complied with this order, the plaintiff moved for an order finding the defendant in contempt. The trial court then enteréd an order which recited: “The Court, after consideration of argument of counsel and checking the pleadings in this case finds that the defendant was served originally by simply leaving a copy of the Complaint at his alleged residence on October 5,1979. 81A-104 (d) 7 requires that the copy be left with some person of suitable age and discretion then residing therein.

“The Court is concerned that proper service was never had on Defendant and therefore declines to hold this Defendant in contempt or to take any penal action.” The plaintiff appeals. Held:

It is obvious that the order in this case did not constitute a final judgment. Therefore, the plaintiff was required to pursue the procedure for interlocutory review but failed to do so. See, McDonald v. McDonald, 244 Ga. 453 (260 SE2d 853). The appeal is thus premature.

Appeal dismissed.

McMurray, P. J., and Pope, J., concur.