Gorrell v. Fowler

273 S.E.2d 852, 247 Ga. 67

• Court: Supreme Court of Georgia
• Decided: January 27, 1981
• Docket: 36716
• Status: Published

Opinion

Clarke, Justice.

Gorrell, the appellant, sued for breach of contract and Fowler, the appellee, counterclaimed. Gorrell’s complaint was dismissed during the course of the trial. This is his appeal which was brought under Code Ann. § 6-701 (a) 1: “Where the judgment is final — that is to say — where the cause of action is no longer pending in the court below.....”

The appellee has filed a motion to dismiss on the ground that the order sought to be appealed is not final as the counterclaim has not been dismissed and therefore the cause is still pending. There has been no order of final judgment ordered under Code Ann. § 81 A-154 (b), nor has there been compliance with Code Ann. § 6-701 (a) 2. Under these circumstances, the appeal must be dismissed. O’Kelley v. Evans, 223 Ga. 512 (156 SE2d 450) (1967); Farmers Co-operative Ins. Co. v. Hicks, 227 Ga. 755 (182 SE2d 895) (1971); Williams v. Ray, 144 Ga. App. 634 (241 SE2d 502) (1978).

Gorrell argues that the counterclaim was abandoned because Fowler did not attempt to prosecute the counterclaim when the main case was dismissed, and therefore the “cause is no longer pending” and the appeal is from a final judgment. While parts of the record raise some question as to abandonment of the counterclaim, there is a clear statement of the trial judge that the counterclaim was not dismissed and is still pending. In fact, counsel for Gorrell asked the court if they should continue with the trial of the counterclaim. The court’s, reply was: “No, it will be held in abeyance then until this is decided.”

We must therefore dismiss this appeal as premature, as the judgment is not final until the counterclaim can be disposed of in some manner below.

Appeal dismissed.

All the Justices concur, except Hill, P. J., and Smith, J., who concur in the judgment only, and Gregory, J., not participating.