Opinion
A00A0194.
DECIDED: NOVEMBER 19, 1999.
Motion to set aside. Floyd Superior Court. Before Judge Salmon.
Parker Lundy, William L. Lundy, Jr., Charles E. Morris, Jr., for appellant.
Mundy Gammage, John S. Husser, Macey, Wilensky, Cohen, Wittner Kessler, Michael C. Kaplan, Susan L. Howick, for appellees.
Appellant/plaintiff Ferri appeals the trial court's grant of appellee-defendant Puckett's out-of-term motion to vacate and set aside the judgment against appellee-defendant. Appellee-defendant has filed his motion to dismiss appellant-plaintiff's appeal contending that there is no final judgment from which this direct appeal lies. OCGA § 5-6-34 (a). We agree. Held:
In the underlying action, appellant-plaintiff brought suit upon a promissory note, thereafter, amending his complaint to allege fraud against the appellee-defendant.
"`[T]he grant of a motion to set aside a judgment, like the grant of a motion for new trial, leaves the case still pending in the court below and thus is not a final judgment.' [Cit.]." Franklin v. Collins, 162 Ga. App. 755 ( 293 S.E.2d 364). Inasmuch as appellant has not complied with the interlocutory appeal procedure and there is no certificate of the superior court as required by OCGA § 5-6-34 (b), this appeal is premature and must be dismissed for want of jurisdiction. Court of Appeals of Georgia Rule 41 (c).
Appeal dismissed. Johnson, C. J., and Phipps, J., concur.