Opinion
43594.
ARGUED MAY 6, 1968.
DECIDED OCTOBER 14, 1968.
Appellate procedure. Fulton Superior Court. Before Judge Holt.
Harmon Thackston, Nolan B. Harmon, Archer D. Smith, III, for appellant.
Kilpatrick, Cody, Rogers, McClatchey Regenstein, Wilbur Branch King, S. Phillip Heiner, for appellee.
The Appellate Practice Act provides that appeals may be taken to the appellate courts in specified instances (not here applicable) and also: "1. Where the judgment is final — that is to say — where the cause is no longer pending in the court below . . . [or] 2. Where the decision or judgment complained of, if it had been rendered as claimed for by the appellant, would have been a final disposition of the cause or final as to some material party thereto." Ga. L. 1965, p. 18 ( Code Ann. § 6-701). (The 1968 General Assembly by an amendment to the Act struck the last enumerated instance above and provided instead that a decision or judgment not otherwise subject to direct appeal could be appealed if the trial judge within a certain period of time certified it was of such importance to the case that immediate review should be had. Ga. L. 1968, pp. 1072, 1073, § 2.)
In the present case the appeal is from an order of the trial court dismissing Count 2 of plaintiff's two-count complaint. "A judgment sustaining a general demurrer to one count of a two-count petition . . . is not a final judgment from which an appeal will lie in a non-equity case." McCorkle v. McLendon, 116 Ga. App. 475 ( 157 S.E.2d 901); Wright v. Collins, 117 Ga. App. 105 ( 159 S.E.2d 468). The passage of the Civil Practice Act which allows ex contractu and ex delicto actions to be joined in the same complaint, as in the present case, did not change this rule. Both counts of the complaint arose out of the same circumstances. The ex contractu count still remains; therefore the cause is still pending in the court below.
The appellee's motion to dismiss the appeal as premature is granted.
Appeal dismissed. Felton, C. J., and Eberhardt, J., concur.