Shepherd v. Epps

242 Ga. 322 (1978) 249 S.E.2d 33

SHEPHERD
v.
EPPS et al.

33852.

Supreme Court of Georgia.

Submitted July 21, 1978. Decided October 4, 1978.

Blackburn & Luck, Joseph I. Weinberg, for appellant.

William H. Whaley, Glenville Haldi, William D. Smith, for appellees.

MARSHALL, Justice.

On August 24, 1977, orders granting motions for summary judgment of two of the four defendants were entered. On September 22, 1977, the plaintiff filed a "motion for rehearing" of the orders. On March 1, 1978, the "motion for rehearing" was denied. On March 31, 1978, the plaintiff filed a notice of appeal from the March 1, 1978, orders "granting summary judgment in favor of defendants."

1. Appellees' motion to dismiss the appeal is granted. The orders of August 24, 1977, granting summary judgments, were appealable orders. Code Ann. § 81A-156 (h) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759). The March 1, 1978, orders appealed from did not, as the appellant contends, grant the summary judgments, but rather merely denied the "motion for rehearing," which is not one of the four statutory motions which could extend the time of filing of the notice of appeal from the appealable judgments of August 24, 1977. See Johnson v. Barnes, 237 Ga. 502 (1) (229 SE2d 70) (1976). The failure to file notice of appeal within the time required by statute is one of the statutory grounds for dismissal of the appeal. See Code Ann. § 6-809 (b) (1); Kennedy v. Brown, 239 Ga. 286 (1) (236 SE2d 632) (1977) and cit.; Adamson v. Adamson, 226 Ga. 719 (177 SE2d 241) (1970); Ellis v. Continental Ins. Co., 141 Ga. App. 809 (234 SE2d 377) (1977) and cits. It should be noted that the appellant can obtain appellate review of this grant of summary judgment as to less than all of the defendants by means of an appeal on rendition of the final judgment. Culwell v. Lomas & Nettleton Co., 242 Ga. 242, (1978).

2. The appellees' motion to assess damages under Code § 6-1801 because the appeal was for delay, is denied, the appeal not being from a judgment for a sum certain. Hodges v. Hodges, 235 Ga. 848 (3) (221 SE2d 597) (1976).

Appeal dismissed. Motion to assess damages denied. All the Justices concur.