Dempsey v. Bradley Center, Inc. , 139 Ga. App. 615 ( 1976 )

139 Ga. App. 615 (1976) 229 S.E.2d 104

DEMPSEY et al.
v.
BRADLEY CENTER, INC. et al.

52700.

Court of Appeals of Georgia.

Argued September 9, 1976. Decided September 22, 1976.

Charles E. Floyd, for appellants.

Kelly, Champion, Denney & Pease, S. E. Kelly, Ernest Kirk, II, for appellees.

MARSHALL, Judge.

Appellants filed their complaint alleging that appellees proximately caused the death of one Mary G. Dempsey through the negligent performance of medical treatment. Appellees filed their answer asserting as a defense a release signed by Mary G. Dempsey. Following the filing of an amended complaint, appellants filed a motion to strike the asserted defense of release. On the hearing of the motion to strike the defense, the trial court, on April 26, 1976, denied the motion to strike. That same day, April 26, 1976, the trial court granted a certificate of immediate review. Appellants filed their notice of appeal in this court on May 26, 1976, and their enumeration of error on July 8, 1976. Appellants have not sought this court to grant an interlocutory appeal. Held:

This case sounding in tort is still pending below. There has been no entry of final judgment pursuant to CPA § 54 (b) (Code Ann. § 81A-154; Ga. L. 1966, pp. 609, 658). Appellants did not apply to this court for an interlocutory appeal within 10 days of the interlocutory order pursuant to Code Ann. § 6-701 (a)2 (Ga. L. 1966, p. 18; 1968, pp. 1072, 1073; 1975, pp. 757, 758). The failure to comply with Code Ann. § 6-701 (a)2, supra, renders the appeal premature. Therefore this appeal must be dismissed. Richert v. Hill Aircraft &c. Corp., 138 Ga. App. 638 (227 SE2d 83); Partain v. State, 138 Ga. App. 171 (225 SE2d 736); Walker v. Robinson, 232 Ga. 361, 363 (207 S.E.2d 6).

Appeal dismissed. McMurray and Smith, JJ., concur.