W. L. Pettus Construction Co. v. Commercial Union Insurance

226 S.E.2d 77, 138 Ga. App. 281, 1976 Ga. App. LEXIS 2134

• Court: Court of Appeals of Georgia
• Decided: February 18, 1976
• Docket: 51625
• Status: Published

Opinion

Stolz, Judge.

To the action against it filed by George W. Smith Co., W. L. Pettus Construction Co., Inc. filed a pleading denominated answer and "cross claim,” stating joint and several claims against the plaintiff and Commercial Union Insurance Co., which was brought in as a party defendant pursuant to the provisions of Code Ann. § 81A-113 (h) (Ga. L. 1966, pp. 609, 625). The defendant appeals, without an immediate review certificate, from the trial judge’s order granting defendant Commercial Union’s motion to dismiss as to it.

1. Since the substance of a legal pleading determines its nature, rather than how it is denominated (Nunnery v. Dept. of Transportation, 128 Ga. App. 221, 222 (196 SE2d 171) and cit.), we treat the defendant’s pleading against opposing parties, as a counterclaim by definition, although erroneously denominated a "cross claim,” which is a "claim by one party against a co-party.” (Emphasis supplied.) Code Ann. § 81A-113 (g).

Submitted January 12, 1976 Decided February 18, 1976 Rehearing denied March 31, 1976. William R. Parker, Thomas A. Rice, for appellant. Hugh Nations, Lokey & Bowden, Glenn Frick, for appellees.

2. The dismissal of the counterclaim as to one party was not a final order and is not appealable in the absence of an express determination by the judge that there was no just reason for delay, an express direction for the entry of judgment, and an immediate review certificate. Code Ann. § 81A-154 (b) (Ga. L. 1966, pp. 609, 658); Register v. Kandlbinder, 132 Ga. App. 435 (208 SE2d 565) and cits. Accordingly, Commercial Union’s motion to dismiss the appeal is granted.

Appeal dismissed.

Bell, C. J., and Clark, J., concur.