General Recording Corp. v. Chadwick

Court of Appeals of Georgia

General Recording Corp. v. Chadwick

220 S.E.2d 697, 136 Ga. App. 213, 1975 Ga. App. LEXIS 1301

Court of Appeals of Georgia·Decided September 23, 1975·No. 50855·Published·Cited by 4 cases

Opinions

Deen, Presiding Judge.

This case represents an interlocutory appeal from an order grahting the appellee the expenses and attorney fees incident to appearing in response to a notice to take depositions filed by appellant, where appellant failed to appear and failed to notify the appellee of the cancellation.

The order appealed from is not a final judgment and is not accompanied by a certificate of immediate review, as required by Code Ann. § 6-701 (a, 2). D. C. E. v. State of [214]*214Ga., 130 Ga. App. 724 (204 SE2d 481).

Argued July 1, 1975 Decided September 23, 1975 Rehearing denied October 21, 1975 Gilbert H. Deitch, for appellant. Daryl G. LeCroy, for appellee.

Anything to the contrary in Marchman v. Head, 135 Ga. App. 475 is hereby disapproved. The Marchman case relies on Acres v. King, 109 Ga. App. 571 (136 SE2d 510). The Acres case, decided in 1964, followed Booth v. State, 131 Ga. 750 (63 SE 502) decided in 1908, both at a time when under Code § 6-701 (2) of the Code of 1933 and its predecessor § 5526 of the Code of 1895, a case was appealable if the judgment would have been final as to some party thereto, if rendered as contended by the plaintiff in error. Further, Booth involved a final judgment in a receivership and did not involve attorney fees. But Ga. L. 1968, pp. 1072, 1073, repealed Code § 6-701 (2) and put in its place the provision requiring certificates of immediate review for interlocutory orders; otherwise, the criterion is as stated in Code § 6-701 (1), that the cause is no longer pending in the trial court. An order for interrogatories or depositions is an interlocutory order. L. & N. R. Co. v. Clark, 114 Ga. App. 755 (152 SE2d 694). While the judgment as to attorney fees for attending the interlocutory hearing might have been "final as to some material party,” i.e., the attorney, under the former law, it is obvious that the cause is still pending on its merits and requires a certificate of review to be viable.

Appeal dismissed.

Bell, C. J., Evans, Stolz, Webb and Marshall, JJ., concur. Pannell, P. J., Quillian and Clark, JJ., dissent.

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Deen, Presiding Judge.

This case represents an interlocutory appeal from an order grahting the appellee the expenses and attorney fees incident to appearing in response to a notice to take depositions filed by appellant, where appellant failed to appear and failed to notify the appellee of the cancellation.

The order appealed from is not a final judgment and is not accompanied by a certificate of immediate review, as required by Code Ann. § 6-701 (a, 2). D. C. E. v. State of [214]*214Ga., 130 Ga. App. 724 (204 SE2d 481).

Argued July 1, 1975 Decided September 23, 1975 Rehearing denied October 21, 1975 Gilbert H. Deitch, for appellant. Daryl G. LeCroy, for appellee.

Anything to the contrary in Marchman v. Head, 135 Ga. App. 475 is hereby disapproved. The Marchman case relies on Acres v. King, 109 Ga. App. 571 (136 SE2d 510). The Acres case, decided in 1964, followed Booth v. State, 131 Ga. 750 (63 SE 502) decided in 1908, both at a time when under Code § 6-701 (2) of the Code of 1933 and its predecessor § 5526 of the Code of 1895, a case was appealable if the judgment would have been final as to some party thereto, if rendered as contended by the plaintiff in error. Further, Booth involved a final judgment in a receivership and did not involve attorney fees. But Ga. L. 1968, pp. 1072, 1073, repealed Code § 6-701 (2) and put in its place the provision requiring certificates of immediate review for interlocutory orders; otherwise, the criterion is as stated in Code § 6-701 (1), that the cause is no longer pending in the trial court. An order for interrogatories or depositions is an interlocutory order. L. & N. R. Co. v. Clark, 114 Ga. App. 755 (152 SE2d 694). While the judgment as to attorney fees for attending the interlocutory hearing might have been "final as to some material party,” i.e., the attorney, under the former law, it is obvious that the cause is still pending on its merits and requires a certificate of review to be viable.

Appeal dismissed.

Bell, C. J., Evans, Stolz, Webb and Marshall, JJ., concur. Pannell, P. J., Quillian and Clark, JJ., dissent.

General Recording Corp. v. Chadwick, 220 S.E.2d 697, 136 Ga. App. 213, 1975 Ga. App. LEXIS 1301 (Ga. Ct. App. 1975).

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