FARMERS CO-OPERATIVE INSURANCE COMPANY v. Hicks

227 Ga. 755 (1971)

182 S.E.2d 895

FARMERS CO-OPERATIVE INSURANCE COMPANY et al. v. HICKS et al.

26488.

Supreme Court of Georgia.

Submitted April 13, 1971.

Decided July 9, 1971.

Rogers, Magruder & Hoyt, J. Clinton Sumner, Jr., Matthews, Walton, Smith, Shaw & Maddox, James D. Maddox, for appellants.

Lipshutz, Macey, Zusmann & Sikes, Charles C. Pritchard, Robert Edward Surles, F. H. Boney, for appellees.

HAWES, Justice.

Farmers Co-operative Insurance Company and American Indemnity Company jointly filed an action in the nature of an interpleader and for injunction against Robert E. Hicks, as trustee in bankruptcy for Manufactured Homes Corporation, Mrs. Stella Willingham and Jimmy B. Willingham, Jr. Mrs. Willingham filed defensive pleadings, including a motion to dismiss the complaint for failure to state a claim, an answer and a counterclaim against Farmers Co-operative Insurance Company. Jimmy Willingham, Jr., filed defensive pleadings, including a motion to dismiss the complaint for failure to state a claim, an answer and a counterclaim against American Indemnity Company. Hicks filed defensive pleadings embodying therein a demand that title to certain described premises be decreed in him. The trial court passed an order denying a temporary injunction and thereafter Mrs. Willingham filed a cross claim against Hicks and a motion for a summary judgment on the same, which was granted. The effect of that order was to eliminate Hicks as a party defendant. The case came on for a pre-trial hearing, and pursuant thereto the trial court passed an order sustaining the motions of both defendants Willingham to dismiss the plaintiffs' complaint. That judgment is the one appealed from. No certificate of immediate review was filed.

The appeal is premature and must be dismissed. Still pending in the trial court are the counterclaims of the defendants Willingham against the plaintiffs, and, therefore, the judgment is not such a final judgment as may be directly appealed under the provisions of Code Ann. § 6-701. O'Kelley v. Evans, 223 Ga. 512 (156 SE2d 450).

Appeal dismissed. All the Justices concur.