Kilgore v. KENNESAW FINANCE COMPANY OF DOUGLASVILLE

128 Ga. App. 120 (1973)

195 S.E.2d 799

KILGORE et al. v. KENNESAW FINANCE COMPANY OF DOUGLASVILLE.

47586.

Court of Appeals of Georgia.

Argued October 6, 1972.

Decided February 7, 1973.

M. David Harrison, H. Winthrop Pettigrew, John L. Cromartie, Jr., Bettye H. Kehrer, for appellants.

J. Clifford Johnson, for appellee.

CLARK, Judge.

This appeal is brought by defendants below enumerating error upon a judgment which sustained plaintiff's motion to dismiss their counterclaim. Although no dismissal motion was filed in this court by appellee, we are required to act ex mero motu when we lack jurisdiction. Code Ann. § 24-3619 (d). Motels, Inc. v. Shadrick, 96 Ga. App. 464 (100 SE2d 592).

Unless a judgment is final this court does not have the power to rule upon an appeal in the absence of a certificate from the trial judge stating that "such order, decision or judgment is of such importance to the case that immediate review should be had." Code Ann. § 6-701 (a). As a dismissal of a counterclaim is not a final order such dismissal judgment is not appealable in the absence of such immediate review certificate. Cook v. Peeples, 227 Ga. 473 (181 SE2d 375); Melton v. Grider, 119 Ga. App. 376 (166 SE2d 915). See also Hood v. Akins, 114 Ga. App. *121 733 (152 SE2d 704) and cits.

Of course, such prior non-appealable order may be used as an enumeration of error whenever an appeal is brought to this court from a final judgment.

Appeal dismissed. Eberhardt, P. J., and Deen, J., concur.