Opinion
47586.
ARGUED OCTOBER 6, 1972.
DECIDED FEBRUARY 7, 1973.
Appellate procedure. Douglas Superior Court. Before Judge Emeritus Foster.
M. David Harrison, H. Winthrop Pettigrew, John L. Cromartie, Jr., Bettye H. Kehrer, for appellants.
J. Clifford Johnson, for appellee.
As an appeal from an order dismissing a counterclaim is not a final judgment because the case remains pending in the trial court, such appeal is premature and must be dismissed in the absence of requisite immediate review certificate. Code Ann. § 6-701.
ARGUED OCTOBER 6, 1972 — DECIDED FEBRUARY 7, 1973.
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 S.E.2d 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 S.E.2d 375); Melton v. Grider, 119 Ga. App. 376 ( 166 S.E.2d 915). See also Hood v. Akins, 114 Ga. App. 733 ( 152 S.E.2d 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.