Hood v. General Shoe Corporation , 119 Ga. App. 649 ( 1969 )

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119 Ga. App. 649 (1969) 168 S.E.2d 326
HOOD
v.
GENERAL SHOE CORPORATION et al.
44421.
Court of Appeals of Georgia.
Submitted April 7, 1969. Decided May 9, 1969.
Jones, Cork, Miller & Benton, Wallace Miller, Jr., for appellant.

R. T. Spencer, Henry G. Smith, Jr., for appellees.

PANNELL, Judge.

General Shoe Corporation, plaintiff in fi. fa., filed an appeal and Angie Hood, claimant, filed what she designated a cross appeal, which recited that claimant "files this her cross appeal and appeals to the Court of Appeals of Georgia from the order of the Superior Court of Houston County, Georgia, denying her motion for summary judgment filed as to her claim in this matter, said order and judgment of the court being dated February 19, 1969." The only enumeration of error complains of the overruling of the motion for summary judgment. In its brief, the appellee suggests the dismissal of this case. Held:

1. Treating the appeal as a direct appeal from the overruling of the motion for summary judgment (a proper certificate therefor having been obtained from the trial judge), the appeal is premature, the appeal having been filed one day before the judgment appealed from was entered. See Gibson v. Hodges, 221 Ga. 779 (147 SE2d 329).

2. Should we treat the appeal as a cross appeal we would be unable to pass upon the sole enumeration of error as the overruling of a motion for summary judgment may be reviewed only upon a direct appeal from that judgment. Section 25 of the Act of 1967 (Ga. L. 1967, pp. 226, 238; Code Ann. § 81A-156 (h)) amending Section 56 (h) of the Civil *650 Practice Act of 1966, pp. 609, 660; and Section 1, Paragraph 4 of the Act of 1968 (Ga. L. 1968, pp. 1072, 1073; Code Ann. § 6-701). The direct appeal from the judgment here overruling the motion for summary judgment being ineffective to give this court jurisdiction as shown in Division 1 of this opinion, we have no jurisdiction to review the sole enumeration of error on cross appeal.

3. Accordingly, the appeal must be dismissed.

Appeal dismissed. Felton, C. J., and Quillian, J., concur.