Opinion
A92A0732.
DECIDED JUNE 3, 1992.
Action on contract. Tift State Court. Before Judge Buckley.
Sims, Fleming Swan, Alan H. Swan, for appellant.
Allen, Kelley Sowell, D. Lynn Kelley, for appellees.
Appellant, a nonresident sub-contractor, brought an action against appellees, alleging nonpayment of sums due under a contract. Appellees filed an answer and counterclaim against appellant and subsequently moved to dismiss the complaint on the grounds that appellant had not complied with the registration requirements of the Nonresident Contractors Act, Ga. L. 1978, p. 309 § 2 at 738 (codified at OCGA § 48-13-37.) The trial court dismissed the complaint without prejudice and this appeal followed.
"`"An appeal from an order dismissing the plaintiff's claim is premature when there is a counterclaim pending in the court below." [Cits.]... (T)he pendency of the counterclaim plus the absence of a determination by the trial judge that there was no just reason for delay and express direction for entry of judgment under... [OCGA § 9-11-54 (b)] (cits.) prevented the order from being final and (directly) appealable. This, coupled with the appellant's failure to follow the applicable procedure for review under (OCGA § 5-6-34 (b)) (cits.), subjects the instant appeal to dismissal (as premature).' [Cit.]" Fasse v. Sexton, 193 Ga. App. 9 ( 387 S.E.2d 17) (1989).
Appeal dismissed. Sognier, C. J., and McMurray, P. J., concur.