Havischak v. Neal , 176 Ga. App. 203 ( 1985 )

176 Ga. App. 203 (1985) 335 S.E.2d 469

HAVISCHAK
v.
NEAL.

71249.

Court of Appeals of Georgia.

Decided September 20, 1985.

Charles L. Jurjevich, for appellant.

Robert L. Neal, for appellee.

BANKE, Chief Judge.

The plaintiff left her automobile with defendant Crafts & Cars, Inc., to be repaired, and a dispute arose over the amount of the bill. She filed this suit to recover actual and punitive damages from the company based on its alleged action in "illegally withholding [her] automobile by using fraud to increase the price of repair agreed upon and not notifying [her] of same for her approval." Later, after Crafts & Cars, Inc., had been served but one day before it filed its answer, the plaintiff sought and obtained an ex parte order granting her leave to amend her complaint to add the appellant, Dennis Havischak, as an additional defendant, "subject to objections." Havischak subsequently filed an answer, which the plaintiff moved to strike as untimely. The plaintiff also filed motions for judgment on the pleadings and summary judgment against Havischak based on the alleged untimeliness of his answer. Havischak, in turn, moved to vacate the order allowing him to be added as a defendant. Without ruling on the latter motion, the trial court struck Havischak's answer as untimely and entered judgment on the pleadings against him in the amount of $55,000, plus costs. Havischak then moved to set this judgment aside pursuant to OCGA § 9-11-60. The trial court granted the motion to set aside with respect to the award of damages but allowed the judgment to stand as a determination of liability. This appeal is from the latter ruling. Held:

Through the procedural muddle from which this appeal has arisen, a central fact stands out — the judgment appealed from is not final, either with respect to the case as a whole or with respect to the claim against Havischak. See generally OCGA § 5-6-34 (a) (1). There having been no compliance with the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b), the appeal must consequently be dismissed. Accord Black v. Sturdivant, 131 Ga. App. 698 (206 SE2d 526) (1974); Spivey v. Rogers, 167 Ga. App. 729 (307 SE2d 677) (1983).

Appeal dismissed. McMurray, P. J., and Benham, J., concur.