Opinion
41685.
ARGUED JANUARY 3, 1966.
DECIDED JANUARY 19, 1966.
Appellate procedure. Fulton Civil Court. Before Judge Webb.
David H. Fink, for appellant.
Powell, Goldstein, Frazer Murphy, Edward E. Dorsey, Robert W. Patrick, for appellee.
The order of the trial court rendered on October 1, 1965, sustained a general demurrer to the petition and "granted 20 days leave within which to amend." Notice of appeal was filed on October 14, 1965, and the case docketed in this court on October 27, 1965. Held:
While a judgment sustaining a general demurrer operates as a dismissal in the absence of a provision allowing time in which to amend ( Wells v. Butler's Builder's Supply Co., 128 Ga. 37, 57 S.E. 55, such dismissal, where time to amend is allowed, does not become effective until the time for amendment has elapsed, and we are bound by these decisions holding that an appeal prior thereto is premature ( Plane v. Awtry Lowndes Co., 85 Ga. App. 414 ( 69 S.E.2d 641); Luke v. Ellis, 201 Ga. 482 (2) ( 40 S.E.2d 85); Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32)), because the case was still pending in the court below when the appeal was filed and no final judgment is appealed from. Id. This court, therefore, has no jurisdiction and the appeal must be dismissed. Peyton v. Rylee, 191 Ga. 40 ( 11 S.E.2d 195). Sec. 1 of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701).
Appeal dismissed. Felton, C. J., and Frankum, J., concur.