Nugent v. Willis

118 Ga. App. 335 (1968)

163 S.E.2d 891

NUGENT v. WILLIS et al.

43712.

Court of Appeals of Georgia.

Argued June 4, 1968.

Decided September 9, 1968.

Doremus & Karsman, Ogden Doremus, Swift, Currie, McGhee & Hiers, Albert E. Phillips, for appellant.

Usher & Haupt, Reginald C. Haupt, Jr., for appellees.

QUILLIAN, Judge.

John L. Nugent, defendant in the court below, appealed to this court from an order overruling his *336 motion to dismiss, motion for judgment on the pleadings, and objections to request for admissions. The notice of appeal was filed on April 8, 1968. Held:

Under the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701) appeals could be taken: (1) "Where the judgment is final that is to say where the cause is no longer pending in the court below. (2) Where the decision or judgment complained of, if it had been rendered as claimed for by the appellant, would have been a final disposition of the cause or final as to some material party thereto." However, on April 8, 1968, the same day this appeal was filed, an Act of the legislature was approved amending the Appellate Practice Act. Under the authority of Scott v. Oxford, 105 Ga. App. 301, 304 (124 SE2d 420); Crawford v. Irwin, 211 Ga. 241, 245 (2) (85 SE2d 8) and Hill v. Willis, 224 Ga. 263 (161 SE2d 281), it is apparent that the 1968 amendment would be applicable to this appeal.

As now written, appeals may be taken: (1) where the judgment is final, and (2) "Where the trial judge in rendering an order, decision or judgment not otherwise subject to direct appeal, certifies within ten (10) days of entry thereof that such order, decision or judgment is of such importance to the case that immediate review should be had." Ga. L. 1968, pp. 1072, 1073. The instant appeal was not from a final order and there is nothing in the record to indicate that the trial judge, within 10 days of entering the order complained of, certified that the order was of such importance to the case that immediate review should be had. Thus, the appeal in the present case was premature and must be dismissed.

Appeal dismissed. Bell, P. J., and Hall, J., concur.