AMERICAN STOVE COMPANY v. Belcher , 86 Ga. App. 203 ( 1952 )

86 Ga. App. 203 (1952) 71 S.E.2d 108

AMERICAN STOVE COMPANY
v.
BELCHER.

34024.

Court of Appeals of Georgia.

Decided May 22, 1952.

George M. Johnston, for plaintiff in error.

Cohen Anderson, contra.

SUTTON, C.J.

American Stove Company filed a suit against J. M. Belcher, in Bulloch Superior Court, on November 26, 1951, for alleged damages to an automobile; and the defendant was served personally with a copy of the suit on November 27, 1951. The defendant failed to answer within the time provided by law; but, on January 22, 1952, 56 days after he had been served with the suit, he filed an answer and affidavit seeking to have the default opened. See Code (Ann. Supp.), §§ 110-401, 110-404. The suit was returnable to the January term of said court, and, on February 5, 1952, after a hearing, the trial judge entered an order allowing the default to be opened, and the plaintiff excepted to that judgment. Held:

1. A judgment granting or refusing to grant a motion to open a default is not a final judgment. Bell v. Stewart, 116 Ga. 714, 716 (43 S.E. 70); Farmers & Merchants Bank v. Pirkle, 9 Ga. App. 583 (1) (71 S.E. 946); Starke v. Hunt, 29 Ga. App. 397 (115 S.E. 505); Williams v. Chambers, 31 Ga. App. 807 (122 S.E. 97); Clay v. Dinkler, 34 Ga. App. 119 (128 S.E. 219); Ryles v. Moore, 191 Ga. 661, 662 (13 S.E. 2d, 672).

2. It appearing from the record that the case is still pending in the court below, the bill of exceptions was prematurely brought to this court, and the motion of the defendant in error to dismiss the same is sustained.

Writ of error dismissed. Felton and Worrill, JJ., concur.