Walton v. Collins

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

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 compliance 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.