Walton v. Collins

Court of Appeals of Georgia

Walton v. Collins

324 S.E.2d 574, 172 Ga. App. 736, 1984 Ga. App. LEXIS 2647

CourtCourt of Appeals of Georgia

DecidedNovember 26, 1984

Docket69410

StatusPublished

Cited by4 cases

This text of 324 S.E.2d 574 (Walton v. Collins) 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

Walton v. Collins, 324 S.E.2d 574, 172 Ga. App. 736, 1984 Ga. App. LEXIS 2647 (Ga. Ct. App. 1984).

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Opinion

Banke, Presiding Judge.

This is an appeal from the grant of a motion by the appellees to set aside a default judgment previously entered in favor of the appellants. The order was based on findings that the appellees are nonresidents of the county where the suit was filed and that service was never perfected on the only resident defendant. Held:

“Where the default judgment is vacated and set aside, jurisdiction remains in the trial court and the judgment is neither final within the meaning of [OCGA § 5-6-34 (a) (1)] nor directly appealable within the provisions of [OCGA § 5-6-34 (a) (2-9)].” Notrica v. Sou. Bell &c. Co., 147 Ga. App. 737 (250 SE2d 196) (1978). Although the trial court set aside the default judgment in this case based on an express finding that it “never acquired jurisdiction over the non-resident defendants,” and while this finding would certainly warrant dismissal of the action, the fact remains that no dismissal motion has been filed, and no dismissal was ordered. Since there has been no [737]*737compliance with the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b), it follows that the appeal is premature and must be dismissed.

Decided November 26, 1984. Albert R. Sacks, for appellants. Kenneth R. Ott, for appellees.

Appeal dismissed.

Pope and Benham, JJ., concur.

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Banke, Presiding Judge.

This is an appeal from the grant of a motion by the appellees to set aside a default judgment previously entered in favor of the appellants. The order was based on findings that the appellees are nonresidents of the county where the suit was filed and that service was never perfected on the only resident defendant. Held:

“Where the default judgment is vacated and set aside, jurisdiction remains in the trial court and the judgment is neither final within the meaning of [OCGA § 5-6-34 (a) (1)] nor directly appealable within the provisions of [OCGA § 5-6-34 (a) (2-9)].” Notrica v. Sou. Bell &c. Co., 147 Ga. App. 737 (250 SE2d 196) (1978). Although the trial court set aside the default judgment in this case based on an express finding that it “never acquired jurisdiction over the non-resident defendants,” and while this finding would certainly warrant dismissal of the action, the fact remains that no dismissal motion has been filed, and no dismissal was ordered. Since there has been no [737]*737compliance with the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b), it follows that the appeal is premature and must be dismissed.

Decided November 26, 1984. Albert R. Sacks, for appellants. Kenneth R. Ott, for appellees.

Appeal dismissed.

Pope and Benham, JJ., concur.

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Bluebook (online)

324 S.E.2d 574, 172 Ga. App. 736, 1984 Ga. App. LEXIS 2647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walton-v-collins-gactapp-1984.

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