Parrish v. Clements

181 S.E.2d 510, 123 Ga. App. 495, 1971 Ga. App. LEXIS 1277

• Court: Court of Appeals of Georgia
• Decided: March 19, 1971
• Docket: 45995
• Status: Published

Opinion

Quillian, Judge.

The appeal in this case is from an order refusing to set aside two prior orders, one of which granted one of the defendant’s motions to dismiss and the other which dismissed the action as to the remaining defendants. A defendant’s counterclaim against the plaintiff was not disposed of and is still pending.

Argued March 2, 1971 Decided March 19, 1971. Olin C. Hammock, James H. Harmon, for appellant. Wisse, Kushinska, Clarke & McConnell, Levis A. McConnell, Jr., John A. Nixon, John P. Nixon, for appellees.

In such circumstances, either there must be an express determination under Sec. 54 (b) of the Civil Practice Act (Code Ann. §81A-154 (b); Ga. L. 1966, pp. 609, 658), or there must be a certificate under Sec. 1 (a, 2) of the Appellate Practice Act (Code Ann. §6-701 (a, 2); Ga. L. 1965, p. 18, 1968, pp. 1072, 1073). In their absence, this order is not appealable. Davis v. Roper, 119 Ga. App. 442 (167 SE2d 685); Butler Auction Co. v. Hosch, 119 Ga. App. 562 (167 SE2d 684).

None of the orders issued by the trial judge contained an express determination that there existed no just cause for delay and an express direction for entry of judgment, nor was there a certificate for immediate review.

Thus, the appeal is premature and must be

Dismissed.

Jordan, P. J., and Evans, J., concur.