Thum v. White

251 S.E.2d 100, 148 Ga. App. 109, 1978 Ga. App. LEXIS 3036

• Court: Court of Appeals of Georgia
• Decided: November 14, 1978
• Docket: 56424
• Status: Published

Opinion

Shulman, Judge.

Appellees brought suit against appellant on a promissory note. Appellant answered and counterclaimed for business losses due to misrepresentations made by appellees and for exemplary damages. On motion by appellees, the trial court granted judgment on the pleadings against appellant for the amount sought in the complaint. This appeal is from that judgment.

Appellees’ motion for judgment on the pleadings made no reference to appellant’s counterclaim. The order granting the motion for judgment on the pleadings and the judgment itself speak only of appellees’ claim against appellant. There has been no dismissal of the counterclaim and no entry of judgment on that claim. The record contains no certificate of immediate review and there has been no compliance with the interlocutory appeal procedure provided in Code Ann. § 6-701 (a) 2.

"Under the above circumstances the judgment above referred to is not final in that the cause is still pending in the [trial court] in the form of the defendant’s counterclaim. Hence, the appeal is premature and this court is without jurisdiction to consider it. [Cit.]” Trump v. Scott Exterminating Co., 135 Ga. App. 473 (218 SE2d ).

Argued September 19, 1978 Decided November 14, 1978. Jones & Wilbur, Carl Fredericks, for appellant. G. Robert Howard, Maurice Hilliard, for appellees.

Appeal dismissed.

Bell, C. J., and Birdsong, J., concur.