332 S.E.2d 365 | Ga. Ct. App. | 1985
ENGLISH
v.
TUCKER FEDERAL SAVINGS & LOAN ASSOCIATION et al.
Court of Appeals of Georgia.
Winship E. Rees, for appellant.
Walter C. Alford, for appellees.
SOGNIER, Judge.
Appellant obtained a judgment against appellee when it failed to answer the summons of garnishment. Appellee moved the trial court to set aside the judgment for failure to serve the proper party and insufficiency of service. The trial court granted the motion which leaves the case pending below as the complaint was not dismissed. This judgment therefore is not a final one. Mayson v. Malone, 122 Ga. App. 814 (178 SE2d 806) (1970). Because appellant failed to comply *70 with the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b), the appeal is premature and must be dismissed. Finance America Corp. v. Drake, 151 Ga. App. 383 (259 SE2d 739) (1979).
Appeal dismissed. Birdsong, P. J., concurs. Carley, J., concurs specially.
CARLEY, Judge, concurring specially.
I agree completely with the majority's conclusion that the appeal in this case must be dismissed. However, the majority dismisses on the basis that the appeal is "premature" because the order sought to be appealed is an interlocutory one and there has been no compliance with the interlocutory appeal procedure prescribed by OCGA § 5-6-34 (b). I write only to point out that even if the judgment sought to be reviewed in this case were final, we would nevertheless be without jurisdiction over this case as a direct appeal because it is a case involving garnishment and an appeal in such case can only be taken pursuant to an order granting a discretionary appeal. OCGA § 5-6-35 (a) (4).
