Nye v. Murcel Manufacturing Company

156 S.E.2d 383, 116 Ga. App. 44, 1967 Ga. App. LEXIS 686

• Court: Court of Appeals of Georgia
• Decided: June 20, 1967
• Docket: 42811
• Status: Published

Opinion

Deen, Judge.

Prior to the new Appellate Practice Act (Ga. L. 1965, p. 18) it was well established that the overruling or sustaining of a general demurrer to a motion to open a default under Code Ann. § 110-404 prior to the entry of a final judgment in the case was not itself final and could not be the basis of an appeal under Code Ann. § 6-701. See Harry v. Scenic Heights Development Corp., 218 Ga. 352 (127 SE2d 898) and cit. It is contended that the appeal in this case, which is based on the overruling of a general demurrer to a motion to open a default and allow the filing of defensive pleadings, should not be dismissed because Code Ann. § 6-701 has been rewritten. The language of Subsections 1 and 2 of this Code section, requiring that the case be no longer pending in the trial court or that the judgment “if it had been rendered as claimed for by the appellant, would have been a final disposition of the cause or final as to some material party thereto” has been retained in its prior form, however, and both the Supreme Court and this court have since held that this test must be used in all civil cases except those specifically excepted by the Act itself. Undercofler v. Grantham Transfer Co., 222 Ga. 654 (151 SE2d 765); Blackburn v. Hall, 115 Ga. App. 235 (154 SE2d 392).

Submitted May 4,1967 Decided June 20, 1967. John P. Rabun, for appellant. Sharpe, Sharpe & Hartley, T. Malone Sharpe, for appellee.

The judgment overruling the general demurrer to the motion to allow the default opened and defensive pleadings filed is not final, and the appeal being premature must be

Dismissed.

Jordan, P. J., and Quillian, J., concur.