Conte Enterprises, Inc. v. ROMAX CONSTRUCTION COMPANY, INC. , 128 Ga. App. 121 ( 1973 )

128 Ga. App. 121 (1973) 195 S.E.2d 798

CONTE ENTERPRISES, INC.
v.
ROMAX CONSTRUCTION COMPANY, INC.

47688.

Court of Appeals of Georgia.

Argued January 9, 1973. Decided February 7, 1973.

Allen, Smith & Tomlinson, William P. Smith, III, for appellant.

Skinner, Wilson, Beals & Strickland, John V. Skinner, Jr., Warner R. Wilson, Jr., for appellee.

STOLZ, Judge.

Plaintiff Romax Construction Company, Inc. filed a "Motion to Dismiss Liens" in the Superior Court of DeKalb County seeking to have the court dismiss by direct order certain labor and materialmen's liens previously filed by defendant Conte Enterprises, Inc., d/b/a Hairston Construction Company, Inc., or to direct the defendant to do so. The defendant then filed its answer, in which it set up various defenses and counterclaimed against plaintiff seeking a judgment for $47,398.50. The trial court granted the relief sought by the plaintiff and the defendant appeals without obtaining a certificate for immediate review as provided in Code Ann. § 6-701 (a) (2) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073). Held:

Under the above circumstances the judgment above referred to is not final in that the cause is still pending in DeKalb Superior Court in the form of the defendant's counterclaim. Hence, the appeal is premature and this court is without jurisdiction to consider it. O'Kelley v. Evans, 223 Ga. 512 (156 SE2d 450); Brown v. Elliott, 115 Ga. App. 89 (153 SE2d 665); Passmore v. Truman & Smith Institute, 116 Ga. App. 803 (159 SE2d 92); Butler Auction Co. v. Hosch, 119 Ga. App. 562 (167 SE2d 684).

Appeal dismissed. Eberhardt, P. J., and Pannell, J., concur.