Rockmart Finance Company v. High

163 S.E.2d 758, 118 Ga. App. 351, 1968 Ga. App. LEXIS 936

• Court: Court of Appeals of Georgia
• Decided: September 16, 1968
• Docket: 43878
• Status: Published

Opinion

Hale, Judge.

This is an appeal from an order overruling a motion for a judgment on the pleadings. The appellee filed a motion to dismiss the appeal. The Appellate Practice Act of 1965, as amended (Ga. L. 1968, pp. 1072, 1073) authorizes an appeal “Where the judgment is final — that is to say— where the cause is no longer pending in the court below,” and “where the trial judge in rendering an order, decision or judgment not otherwise subject to direct appeal certifies within ten (10) days of entry thereof that such order, decision or judgment is of such importance to the case that immediate review should be had.” Where there is no certificate, the appeal is premature and the motion to dismiss must be granted.

It should be emphasized that this is not a technical dismissal. On the contrary the appellant is in no way prejudiced by the grant of this motion. If the appellant prevails on final judgment, the alleged error is then moot. If the final judgment is unfavorable, the appellant can enumerate the same as error in its appeal from a final judgment. In actuality trial judges should be commended for exercising a discretion in refusing to so certify in every case. If the certificate is granted in every appeal from a judgment which is not final, the purpose of this new provision in our law will be destroyed, which will inevitably lead to its repeal. Furthermore the grant of the certificate is itself an indication that the trial court has doubt of the validity of its previous order.

Appeal dismissed.

Bell, P. J., and Quillian, J., concur. Smith & Smith, C. E. Smith, Jr., for appellant. Marson G. Dunaway, Jr., for appellees.