Security Branding, Inc. v. Corbitt

Full title: SECURITY BRANDING, INC. v. CORBITT et al. RAY v. SECURITY BRANDING, INC

Court: Court of Appeals of Georgia

Date published: Nov 7, 1977

240 S.E.2d 728 (Ga. Ct. App. 1977)

240 S.E.2d 728

Opinion

54342, 54343.

ARGUED SEPTEMBER 19, 1977.

DECIDED NOVEMBER 7, 1977. REHEARING DENIED DECEMBER 1, 1977.

Action on contract. DeKalb Superior Court. Before Judge Hendon.

Carl v. Kirsch, for Security Branding, Inc.

White, Ray White, Scott A. Ray, Hugh F. Newberry, for Ray and Corbitt et al.

BELL, Chief Judge.

Plaintiff filed suit against several defendants, one of whom was defendant Ray, who moved for summary judgment. By an order entered on March 31, 1977, the trial court granted the motion in part and denied it in part. On April 7, 1977, another order was entered entitled: "modification of judgment" where the court held that it would give no retroactive effect to any portion of the Securities Act of 1973 enacted subsequent to 1974, specifically Code § 97-112 (d), and further ruled that this statute was wholly inapplicable to the case. This order then stated: "The previous order of this court dated March 30, 1977 is hereby amended accordingly, nunc pro tunc." On May 6, 1977, the plaintiff filed a notice of appeal from the judgment and order dated April 7, 1977. Held:

1. As required, the court initially will make a determination as to whether or not we have jurisdiction of this appeal and we conclude that we do not. The order of March 31, 1977, insofar as it partially granted summary judgment to the defendant Ray, could have been appealed. CPA § 56 (1) (Code Ann. § 81A-156 (1)). However, as the order of April 7, 1977, amended the earlier order of March 31, 1977, the plaintiff's notice of appeal filed on May 6, 1977, was not timely as it was filed more than 30 days after entry of the judgment. Appeal of the latter order cannot be done as it was an interlocutory order and appellant has not complied with the procedure for seeking review of an interlocutory judgment. The court has no jurisdiction over the appeal.

2. Cross Appeal. Defendant Ray has cross appealed and enumerates as error the partial denial of his motion for summary judgment. The cross appeal must be dismissed as defendant's application for an interlocutory appeal was denied by this court on April 29, 1977. Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840 ( 229 S.E.2d 753). The recent decision in Stallings v. Chance, 239 Ga. 567, does not apply.

The appeal and the cross appeal are

Dismissed. McMurray and Smith, JJ., concur.

ARGUED SEPTEMBER 19, 1977 — DECIDED NOVEMBER 7, 1977 — REHEARING DENIED DECEMBER 1, 1977, IN CASE No. 54342.