Ferri v. Puckett

525 S.E.2d 779, 241 Ga. App. 34, 99 Fulton County D. Rep. 4417, 1999 Ga. App. LEXIS 1544

• Court: Court of Appeals of Georgia
• Decided: November 19, 1999
• Docket: A00A0194
• Status: Published

Opinion

McMurray, Presiding Judge.

Appellant-plaintiff Ferri appeals the trial court’s grant of appel-lee-defendant Puckett’s out-of-term motion to vacate and set aside the judgment¹ against appellee-defendant. Appellee-defendant has filed his motion to dismiss appellant-plaintiff’s appeal contending that there is no final judgment from which this direct appeal lies. OCGA § 5-6-34 (a). We agree. Held:

Decided November 19, 1999. Parker & Lundy, William L. Lundy, Jr., Charles E. Morris, Jr., for appellant. Mundy & Gammage, John S. Husser, Macey, Wilensky, Cohen, Wittner & Kessler, Michael C. Kaplan, Susan L. Howick, for appel-lees.

“ ‘[T]he grant of a motion to set aside a judgment, like the grant of a motion for new trial, leaves the case still pending in the court below and thus is not a final judgment.’ [Cit.]” Franklin v. Collins, 162 Ga. App. 755 (293 SE2d 364). Inasmuch as appellant has not complied with the interlocutory appeal procedure and there is no certificate of the superior court as required by OCGA § 5-6-34 (b), this appeal is premature and must be dismissed for want of jurisdiction. Court of Appeals Rule 41 (c).

Appeal dismissed.

Johnson, C. J, and Phipps, J., concur.

1 In the underlying action, appellant-plaintiff brought suit upon a promissory note, thereafter, amending his complaint to allege fraud against the appellee-defendant.