Opinion
47978.
SUBMITTED MARCH 7, 1973.
DECIDED APRIL 3, 1973.
Action for damages. Walton Superior Court. Before Judge Barrow.
Ross Finch, I. J. Parkerson, Malcolm P. Smith, for appellant.
Erwin, Epting, Gibson Chilivis, Eugene A. Epting, for appellee.
In this companion case to Malcolm v. Cotton, 128 Ga. App. 699, the plaintiff husband sought damages for personal injuries and property damage to his automobile. The trial judge granted the defendant's motion for a directed verdict on his defense of accord and satisfaction, then later granted the plaintiff's amended motion for new trial on the special ground that the circumstances of the case created a valid, equitable reason not to enforce the legal principle forbidding the splitting of a cause of action (claim). The defendant appeals from the order granting the motion for new trial. Held:
The order granting the motion for a new trial was not an appealable judgment under Code Ann. § 6-701 (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073). No certificate for immediate review was entered under the provisions of Code Ann. § 6-701 (a, 2). Thus, the case is still pending in the court below and the appeal is premature. Eastland v. Candler, 225 Ga. 585 ( 170 S.E.2d 422) and cit.; Pilgreen's Airport, Inc. v. Gold, 122 Ga. App. 194 ( 176 S.E.2d 480). Accordingly, on appellee's motion to dismiss the appeal, it must be dismissed.
Appeal dismissed. Eberhardt, P. J., and Pannell, J., concur.