Trump v. Scott Exterminating Co.

218 S.E.2d 149, 135 Ga. App. 473, 1975 Ga. App. LEXIS 1702

• Court: Court of Appeals of Georgia
• Decided: July 16, 1975
• Docket: 50593
• Status: Published

Opinion

Pannell, Presiding Judge.

Plaintiff brought this suit against Scott Exterminating Company, Inc., to recover for damages to her home resulting from termite infestation. In her complaint, plaintiff alleged that the defendant was negligent in inspecting said premises and fraudulently represented said premises to be free of termites. In its answer, the defendant set up various defenses and counterclaimed against plaintiff seeking a judgment for $1,500. After plaintiff had completed the presentation of her evidence, the defendant made a motion to dismiss plaintiffs action. The court, trying the case without a jury, granted defendant’s motion. Plaintiff appeals from the order granting defendant’s motion to dismiss. This appeal is brought without a certificate for immediate review as provided in Code Ann. § 6-701 (a) (2) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073). Held:

Under the above circumstances the judgment above referred to is not final in that the cause is still pending in the Civil Court of Fulton County in the form of the defendant’s counterclaim. Hence, the appeal is premature and this court is without jurisdiction to consider it. Conte Enterprises, Inc. v. Romax Const. Co., 128 Ga. App. 121 (195 SE2d 798).

Appeal dismissed.

Quillian and Clark, JJ., concur.