Opinion
45102.
SUBMITTED FEBRUARY 2, 1970.
DECIDED JUNE 16, 1970.
Processioning. Rabun Superior Court. Before Judge Smith.
John G. Davis, for appellants.
Knox Bynum, for appellee.
Where there is no final judgment and no certificate of review entered by the trial court, the appeal is premature.
SUBMITTED FEBRUARY 2, 1970 — DECIDED JUNE 16, 1970.
The Georgia Power Company filed an application with the land processioners to re-establish a certain land line in Rabun County. The processioners duly ran the line in question and filed their return with the ordinary. Within the 30-day time limit prescribed by law, Charlie C. Moore and Ralph C. Thrift, two of the parties named in the Processioning proceeding, filed their protest with the ordinary and papers were duly transferred to the clerk of the superior court for trial.
The case coming on to be heard, the record shows the following order was entered: "The above mentioned case being called and the appellee announcing ready, and the appellants being in court and being represented by counsel voluntarily dismissing their appeal in said case, it is therefore considered, ordered and adjudged by the court that the appeal filed by Charlie C. Moore and Ralph C. Thrift in said case be and the same is hereby dismissed and it is ordered that the appellants pay the accrued costs in said case as follows: In the amount of $179.48 for the county surveyor costs and in the amount of $60.00 for the processioners' costs and accrued court costs." This order was entered on November 26, 1968. Thereafter on May 14, 1969, the protestants filed a petition to reinstate their protest in the superior court, reciting that they had paid the court costs.
The Georgia Power Company filed a motion to dismiss the petition to reinstate on the grounds that the protestants had not paid all the court costs; that they were not legally entitled to reinstitute the case; that once the protest had been voluntarily dismissed the protestants could not thereafter, more than 30 days from the date of return of the processioners, reinstitute the protest. The trial judge entered an order sustaining the motion of the Georgia Power Company to dismiss the petition to reinstitute the protest. From this order, protestants appeal and enumerate the same as error.
On the trial of the issue formed by the filing of the protest, a verdict which is made the judgment of the court is conclusive upon the parties and their privies in title. Howland v. Brown, 92 Ga. 513 ( 17 S.E. 806); Davis v. Stone, 88 Ga. App. 766 ( 77 S.E.2d 775). However, where the processioners file the plat and return and no protest is made to the same, such plat and the lines marked thereon are only prima facie correct. Huff v. Holley, 101 Ga. App. 292, 295 ( 113 S.E.2d 493); Bradley v. Chattanooga Iron c. Co., 144 Ga. 478 ( 87 S.E. 465).
Code § 85-1609 provides that after a protest is filed with the ordinary the proceeding is transmitted to the superior court where the case is docketed and tried "in the same manner and under the same rules as other cases." Where the parties bore the same relation to one another as in the case sub judice, it has been pointed out that on the trial of the protest "the applicants stood in the position of plaintiffs, and the protestants stood in the position of defendants." Philpot v. Wells, 69 Ga. App. 489, 492 ( 26 S.E.2d 155). In this same context, the protest is analogous to a defensive pleading. Earney v. Owen, 213 Ga. 412 ( 99 S.E.2d 201). Therefore, the dismissal of the protest is substantially equivalent to the dismissal of an answer. See Edenfield v. Lanier, 77 Ga. App. 535 ( 48 S.E.2d 777). Prior to the Appellate Practice Act, our appellate courts held that since the case was still pending an order striking an answer or plea was not a final judgment. Darden v. Roberts, 193 Ga. 637 ( 19 S.E.2d 270); Personal Credit Corp. v. Goldwire, 88 Ga. App. 125 ( 76 S.E.2d 129). A ruling on an attempt to reinstate or reinstitute a protest would have no higher standing. From the foregoing it is apparent that the case is still pending in the superior court until disposed of by entry of the final judgment.
In the case of Hitchcock v. Defreese, 99 Ga. App. 700 ( 109 S.E.2d 631), this court passed upon the sustaining of a demurrer to a protest but made no ruling upon the jurisdictional aspects of the case. It is at most a physical precedent and, insofar as it is contrary to numerous rulings of the Supreme Court that the dismissal of a plea or answer was not an appealable judgment, it will not be followed.
In the absence of a final judgment, the trial court must enter the certificate of review under the provisions of Section 1 of the Appellate Practice Act, as amended, Code Ann. § 6-701 (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073); otherwise, the appeal is premature. Melton v. Grider, 119 Ga. App. 376 ( 166 S.E.2d 915), Norbo Trading Corp. v. Wohlmuth, 223 Ga. 258 ( 154 S.E.2d 224). The appeal having been taken from a judgment that is not final and no certificate having been entered, it must be dismissed.
Appeal dismissed. Bell, C. J., and Whitman, J., concur.