Sumner v. Adel Banking Company

246 S.E.2d 680, 241 Ga. 563, 1978 Ga. LEXIS 1046

• Court: Supreme Court of Georgia
• Decided: July 6, 1978
• Docket: 33688
• Status: Published

Opinion

Nichols, Chief Justice.

The bank brought suit against Sumner seeking, in Count 1, a money judgment for principal, interest and attorney fees and, in Count 2, a writ of possession pursuant to Code Ann. § 67-701 et seq. as to certain farming equipment in which it claimed a security interest.

An immediate writ of possession was issued pursuant to Code Ann. § 67-709. The equipment was levied upon by the sheriff pursuant to Code Ann. §§ 67-707 and 67-714. Sumner filed defensive pleadings pursuant to Code Ann. § 67-715 and motions pursuant to Code Ann. § 67-716. The trial court denied all grounds of the motions, some of which asserted denials of federal and state rights to due process and equal protection. Sumner appeals.

Code Ann. § 67-706 provides, in relevant part, that "Any judgment by the court shall be appealable pursuant to Code Title 6 or any other applicable law.” Accordingly, the appealability of the order in the present case must be determined by the principles stated in Code Ann. §§ 6-701 and 81A-154 (b).

The order sought to be appealed is not "final” within the meaning of Code Ann. § 6-701 (a) 1 because the case still is pending in the trial court. Neither did the trial court act pursuant to Code Ann. § 81A-154 (b).

The trial court has not issued a certificate pursuant to Code Ann. § 6-701 (a) 2 (A) and no application has been made to this court pursuant to Code Ann. § 6-701 (a) 2 (B) for interlocutory appeal. The order is not one of those enumerated under Code Ann. § 6-701 (a) 3. Hence, the order sought to be appealed is not properly before this court on appeal.

The cases of Coppage v. Mellon Bank, 142 Ga. App. 12 (234 SE2d 824) (1977) and First Nat. Bank of Commerce v. Baker, 142 Ga. App. 870(237 SE2d233) (1977) incorrectly held that Code Ann. § 67-706 provides that any judgment entered under Code Ann. Ch. 67-7 shall be appealable. Those cases will not be followed.

The order as to which an appeal was sought in the present case was interlocutory and was not appealable except in accordance with Code Ann. § 6-701 (a) 2.

Submitted June 2, 1978 Decided July 6, 1978. Elsie Higgs Griner, J. Laddie Boatright, for appellant. Griffis & Thomas, Tom W. Thomas, Arthur K. Bolton, Attorney General, for appellee.

Appeal dismissed.

All the Justices concur.