Scott v. Kelly

143 Ga. App. 729 (1977)

240 S.E.2d 144

SCOTT v. KELLY.

54389.

Court of Appeals of Georgia.

Argued September 20, 1977.

Decided October 14, 1977.

Rehearing Denied November 4, 1977.

White & Jewett, C. Lawrence Jewett, for appellant.

Roberts O. Bennett, Hansell, Post, Brandon & Dorsey, W. Lyman Dillon, John G. Parker, for appellee.

McMURRAY, Judge.

This case involves an appeal of an order requiring the defendant below to pay to the plaintiff below the sum of $500 as attorney fees and expenses, the same amounting to sanctions imposed for failing to respond to each and every interrogatory and request for production of documents. By order dated April 8, 1977, the trial court found that the defendant wilfully failed to comply with an earlier order. The court further ordered that if defendant *730 did not comply with the order to respond "not later than twenty (20) days of the date of this Order ... this Court intends to dismiss the Counterclaim of Defendant and to award an additional Five Hundred Dollars ($500.00) in attorneys' fees and expenses to the Plaintiff." The defendant then filed a motion for reconsideration and upon the hearing the trial court, by order dated April 28, 1977, denied defendant's motion for reconsideration but extended the deadline for defendant's compliance with the order of April 8, 1977, until May 9, 1977.

In General Recording Corp. v. Chadwick, 136 Ga. App. 213 (220 SE2d 697), this court had for decision the very same question involved in this appeal and therein held the order appealed from is not a final judgment. There has been no certificate for immediate review or grant of an interlocutory order allowing an immediate appeal by this court. Consequently, under the authority of the Chadwick case (a 6 to 3 decision), disapproving Marchman v. Head, 135 Ga. App. 475 (218 SE2d 151), we must dismiss this appeal as premature unless this court consider this issue again and overrule Chadwick and reinstate Marchman. It is noted here that an application for writ of certiorari was made to the Supreme Court in Chadwick but was denied. Accordingly, we refuse to reconsider this question and must follow the decision in Chadwick. See also in this connection Vowell v. Carmichael, 235 Ga. 410 (219 SE2d 735).

Appeal dismissed. Bell, C. J., and Smith, J., concur.