Dempsey v. Bradley Center, Inc.

Court of Appeals of Georgia

Dempsey v. Bradley Center, Inc.

229 S.E.2d 104, 139 Ga. App. 615, 1976 Ga. App. LEXIS 1910

CourtCourt of Appeals of Georgia

DecidedSeptember 22, 1976

Docket52700

StatusPublished

Cited by3 cases

This text of 229 S.E.2d 104 (Dempsey v. Bradley Center, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dempsey v. Bradley Center, Inc., 229 S.E.2d 104, 139 Ga. App. 615, 1976 Ga. App. LEXIS 1910 (Ga. Ct. App. 1976).

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Opinion

Marshall, Judge.

Appellants filed their complaint alleging that appellees proximately caused the death of one Mary G. Dempsey through the negligent performance of medical treatment. Appellees filed their answer asserting as a defense a release signed by Mary G. Dempsey. Following the filing of an amended complaint, appellants filed a motion to strike the asserted defense of release. On the hearing of the motion to strike the defense, the trial court, on April 26,1976, denied the motion to strike. That same day, April 26, .1976, the trial court granted a certificate of immediate review. Appellants filed their notice of appeal *616 in this court on May 26, 1976, and their enumeration of error on July 8, 1976. Appellants have not sought this court to grant an interlocutory appeal. Held:

Argued September 9, 1976 Decided September 22, 1976. Charles E. Floyd, for appellants. Kelly, Champion, Denney & Pease, S. E. Kelly, Ernest Kirk, II, for appellees.

This case sounding in tort is still pending below. There has been no entry of final judgment pursuant to CPA § 54 (b) (Code Ann. § 81A-154; Ga. L. 1966, pp. 609, 658). Appellants did not apply to this court for an interlocutory appeal within 10 days of the interlocutory order pursuant to Code Ann. § 6-701 (a)2 (Ga. L. 1966, p. 18; 1968, pp. 1072, 1073; 1975, pp. 757,758). The failure to comply with Code Ann. § 6-701 (a)2, supra, renders the appeal premature. Therefore this appeal must be dismissed. Richert v. Hill Aircraft &c. Corp., 138 Ga. App. 638 (227 SE2d 83); Partain v. State, 138 Ga. App. 171 (225 SE2d 736); Walker v. Robinson, 232 Ga. 361, 363 (207 SE 2d 6).

Appeal dismissed.

McMurray and Smith, JJ., concur.

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Marshall, Judge.

Appellants filed their complaint alleging that appellees proximately caused the death of one Mary G. Dempsey through the negligent performance of medical treatment. Appellees filed their answer asserting as a defense a release signed by Mary G. Dempsey. Following the filing of an amended complaint, appellants filed a motion to strike the asserted defense of release. On the hearing of the motion to strike the defense, the trial court, on April 26,1976, denied the motion to strike. That same day, April 26, .1976, the trial court granted a certificate of immediate review. Appellants filed their notice of appeal *616 in this court on May 26, 1976, and their enumeration of error on July 8, 1976. Appellants have not sought this court to grant an interlocutory appeal. Held:

Argued September 9, 1976 Decided September 22, 1976. Charles E. Floyd, for appellants. Kelly, Champion, Denney & Pease, S. E. Kelly, Ernest Kirk, II, for appellees.

This case sounding in tort is still pending below. There has been no entry of final judgment pursuant to CPA § 54 (b) (Code Ann. § 81A-154; Ga. L. 1966, pp. 609, 658). Appellants did not apply to this court for an interlocutory appeal within 10 days of the interlocutory order pursuant to Code Ann. § 6-701 (a)2 (Ga. L. 1966, p. 18; 1968, pp. 1072, 1073; 1975, pp. 757,758). The failure to comply with Code Ann. § 6-701 (a)2, supra, renders the appeal premature. Therefore this appeal must be dismissed. Richert v. Hill Aircraft &c. Corp., 138 Ga. App. 638 (227 SE2d 83); Partain v. State, 138 Ga. App. 171 (225 SE2d 736); Walker v. Robinson, 232 Ga. 361, 363 (207 SE 2d 6).

Appeal dismissed.

McMurray and Smith, JJ., concur.

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229 S.E.2d 104, 139 Ga. App. 615, 1976 Ga. App. LEXIS 1910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dempsey-v-bradley-center-inc-gactapp-1976.

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