Opinion
45995.
ARGUED MARCH 2, 1971.
DECIDED MARCH 19, 1971.
Appellate procedure. Houston State Court. Before Judge Armitage.
Olin C. Hammock, James H. Harmon, for appellant.
Wisse, Kushinska, Clarke McConnell, Levis A. McConnell, Jr., John A. Nixon, John P. Nixon, for appellees.
The appeal in this case is from an order refusing to set aside two prior orders, one of which granted one of the defendant's motions to dismiss and the other which dismissed the action as to the remaining defendants. A defendant's counterclaim against the plaintiff was not disposed of and is still pending.
In such circumstances, either there must be an express determination under Sec. 54 (b) of the Civil Practice Act ( Code Ann. § 81A-154 (b); Ga. L. 1966, pp. 609, 658), or there must be a certificate under Sec. 1 (a, 2) of the Appellate Practice Act ( Code Ann. § 6-701 (a, 2); Ga. L. 1965, p. 18, 1968, pp. 1072, 1073). In their absence, this order is not appealable. Davis v. Roper, 119 Ga. App. 442 ( 167 S.E.2d 685); Butler Auction Co. v. Hosch, 119 Ga. App. 562 ( 167 S.E.2d 684).
None of the orders issued by the trial judge contained an express determination that there existed no just cause for delay and an express direction for entry of judgment, nor was there a certificate for immediate review.
Thus, the appeal is premature and must be
Dismissed. Jordan, P. J., and Evans, J., concur.