Howard v. Thomas

162 S.E.2d 721, 224 Ga. 515, 1968 Ga. LEXIS 841

• Court: Supreme Court of Georgia
• Decided: July 16, 1968
• Docket: 24751
• Status: Published

Opinion

Mobley, Justice.

The appeal is from an order dismissing the answer of the appellant, Robert L. Howard, to the equitable complaint of Mrs. Sadie A. Thomas, the appellee. While an order appears in the record granting the motion of the appellant to convert the appellee’s motion to strike the appellant’s answer into a motion for summary judgment, the order appealed from does not deal with the matter as one on summary judgment. On review we can not consider the order as deciding issues it does not purport to deal with, and we must treat it merely as one striking the amended answer of the appellant.

Error is assigned in the enumeration of errors because the dismissal of the answer automatically carried with it the appellant’s injunction previously issued by the court. In a supplemental brief for the appellant it is admitted that the appellant has moved from the premises in controversy, and it is stated that the assignment of error on the injunctive feature of the case is moot.

The dismissal of the appellant’s answer is not a final judgment as contemplated by Section 1 (a) (1) of the Appellate Practice Act (Ga. L. 1965, p. 18). With the injunctive feature eliminated, the order does not come within those listed in Section 1 (a) (3) of the 1968 amendment to the Act (Ga. L. 1968, pp. 1072, 1073).

The trial judge rendering the order did not certify within ten days of the entry thereof that the order is of such importance to the case that immediate review should be had, as permitted by Section 1 (a) (2) of the 1968 amendment, supra.

The order is not one from which a direct appeal can be taken, and the appeal must be

Dismissed.

All the Justices concur.