English v. TUCKER FEDERAL SAVINGS & LOAN ASSOCIATION
332 S.E.2d 365
Ga. Ct. App.
1985
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ENGLISH v. TUCKER FEDERAL SAVINGS & LOAN ASSOCIATION et al.

70670

Court of Appeals of Georgia

DECIDED JUNE 6, 1985.

332 SE2d 365

SOGNIER, Judge.

on a finding that the appellant had not exercised due diligence to perfect service of the complaint prior to the expiration of the applicable statute of limitation. On February 24, 1984, the appellant filed a notice of appeal to this court from that order. On July 2, 1984, the appellee moved to dismiss the appeal based on an alleged delay in the transmittal of the record occasioned by the appellant‘s failure to pay costs in a timely manner. See generally OCGA § 5-6-48 (c). The appellant then filed a motion on August 22, 1984, asking the trial court to vacate or amend its dismissal order of January 25, 1984. On August 30, 1984, the trial court dismissed the appeal, finding that appellant‘s failure to make timely payment of the costs was both unreasonable and inexcusable. No appeal was taken from this order, and on January 4, 1985, the trial court denied the appellant‘s motion to amend or vacate the original dismissal order. It is from that order that the appellant filed this appeal. Held:

“A review of the [appellant‘s] motion [in connection with the entire record] reveals it to be simply a motion for reconsideration of the previous dismissal entered by the trial court. It does not allege either lack of jurisdiction or the existence of a non-amendable defect appearing on the face of the record. Consequently, the filing of the motion did not extend the time for filing the appeal, nor was its denial appealable in its own right. [Cits.]”

. The appeal is accordingly dismissed for lack of jurisdiction.

Appeal dismissed. McMurray, P. J., and Benham, J., concur.

DECIDED JUNE 6, 1985.

Robert John White, for appellant.

Stephen A. Friedman, E. J. Van Gerpen, Malcolm C. McArthur, for appellee.

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.

. Because appellant failed to com-ply with the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b), the appeal is premature and must be dismissed.
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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).

DECIDED JUNE 6, 1985.

Winship E. Rees, for appellant.

Walter C. Alford, for appellees.