Wachstein v. Citizens & Southern National Bank

Court of Appeals of Georgia

Wachstein v. Citizens & Southern National Bank

234 S.E.2d 828, 142 Ga. App. 23, 1977 Ga. App. LEXIS 1459

CourtCourt of Appeals of Georgia

DecidedApril 15, 1977

Docket53702

StatusPublished

Cited by2 cases

This text of 234 S.E.2d 828 (Wachstein v. Citizens & Southern National Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wachstein v. Citizens & Southern National Bank, 234 S.E.2d 828, 142 Ga. App. 23, 1977 Ga. App. LEXIS 1459 (Ga. Ct. App. 1977).

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Opinion

Bell, Chief Judge.

On June 25, 1976, defendant’s motion to require plaintiff to make a more definite statement of its claim was granted and the trial court provided in its order that if plaintiff failed to comply within 15 days "said complaint shall be dismissed without further notice or order of court.” A response to this motion by plaintiff was not made within the 15-day limit. Later, plaintiff filed a motion to set aside. One of the grounds of the motion was that plaintiff was not served with the order requiring a more definite statement as required by CPA § 12 (e) (Code Ann. § 81A-112 (e)). The trial court after a hearing found as a fact that plaintiff had not been served with the order and granted the motion to set aside the June 25th order and reinstated the case. Held:

The appeal is premature and must be dismissed. Shannon Co. v. Heneveld, 235 Ga. 635 (221 SE2d 200), cited by appellant is not in point as it held that the denial of a motion to set aside is an appealable judgment. Obviously, the denial of a motion to set aside is a final judgment. However, the granting of a motion to set aside and the reinstating of the case in the trial court leaves the case pending in the trial court and is not an appealable final judgment. Mayson v. Malone, 122 Ga. App. 814 (178 SE2d 806).

Appeal dismissed.

McMurray and Smith, JJ., concur. *24 Leiter & Leiter, Robert Paul Leiter, for appellant. Carnes & White, James A. White, Jr., for appellee.

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Bell, Chief Judge.

On June 25, 1976, defendant’s motion to require plaintiff to make a more definite statement of its claim was granted and the trial court provided in its order that if plaintiff failed to comply within 15 days "said complaint shall be dismissed without further notice or order of court.” A response to this motion by plaintiff was not made within the 15-day limit. Later, plaintiff filed a motion to set aside. One of the grounds of the motion was that plaintiff was not served with the order requiring a more definite statement as required by CPA § 12 (e) (Code Ann. § 81A-112 (e)). The trial court after a hearing found as a fact that plaintiff had not been served with the order and granted the motion to set aside the June 25th order and reinstated the case. Held:

The appeal is premature and must be dismissed. Shannon Co. v. Heneveld, 235 Ga. 635 (221 SE2d 200), cited by appellant is not in point as it held that the denial of a motion to set aside is an appealable judgment. Obviously, the denial of a motion to set aside is a final judgment. However, the granting of a motion to set aside and the reinstating of the case in the trial court leaves the case pending in the trial court and is not an appealable final judgment. Mayson v. Malone, 122 Ga. App. 814 (178 SE2d 806).

Appeal dismissed.

McMurray and Smith, JJ., concur. *24 Leiter & Leiter, Robert Paul Leiter, for appellant. Carnes & White, James A. White, Jr., for appellee.

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234 S.E.2d 828, 142 Ga. App. 23, 1977 Ga. App. LEXIS 1459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wachstein-v-citizens-southern-national-bank-gactapp-1977.

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