Davis v. Holt

159 S.E.2d 403, 224 Ga. 55, 1968 Ga. LEXIS 667

Opinion

Frankum, Justice.

The appeal in this case is from the denial of a motion by the plaintiff for a summary judgment in his favor in his action in the nature of mandamus against the appellees. The court did not grant or deny the writ of mandamus sought by the plaintiff and upon denial of the motion for a summary judgment the action was left pending in the trial court. (No question was raised in the trial court as to whether a motion for a summary judgment is an available remedy in an action of mandamus.) The appeal must be dismissed because: first, “. . . no appeal shall be taken from a decision or judgment in a mandamus . . . proceeding . . . , until there has been a final judgment in the trial court . . .” (Ga. L. 1965, p. 18); and second, “. . . an order denying summary judgment is not subject to review by direct appeal or otherwise, unless within ten (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.” Ga. L. 1967, pp. 226, 238. The record does not show such certificate by the trial judge.

Appeal dismissed.

All the Justices concur. Submitted January 8, 1968 Decided January 18, 1968. Merritt ■& Pruitt, Glyndon C. Pruitt, for appellant. Stark & Stark, Homer M. Stark, for appellees.